The Austin Co.

In the Matter of THE AUSTIN COMPANY and INTERNATIONAL FEDERA- TION OF TECHNICAL ENGINEERS', ARCHITECTS', AND DRAFTSMEN'S UNION, No. 90-A, AFL Case No. i3-C-2664.-Decided August 09, 1946 Mr. Robert Ackerberg, for the Board. McKnight, McLaughlin & Dunn, by Messrs. Edward J. McLaughlin and Harry L. Kinser, of Chicago, Ill., for the respondent. Mr. Wilbur Millard, of Chicago, Ill., for the Union. Miss Ruth E. Blie field, of counsel to the Board. 4f DECISION AND ORDER On July 10, 1946, Trial Examiner Mortimer Riemer issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The Austin Company, Chi- cago, Illinois, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Federation of Tech- nical Engineers', Architects', and Draftsmen's Union No. 90-A, afli- 70 N. L. R. B., No. 63. 712344-47-vol. 70 55 851 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ated with the American Federation of Labor, or any other labor or- ganization of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire and tenure of employment, or any term or con- dition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist International Federation of Technical Engineers', Architects', and Draftsmen's Union, No. 90-A, affiliated with the American Federation of Labor, or any other labor organization , to bargain collectively through representatives of their own choosing and to-engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds -will effectuate the policies of the Act': (a) Offer to Arthur S. Brown immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges : (b) Make whole Arthur S. Brown 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 that which he normally would have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement, less his net earnings during such period ; (c) Post in conspicuous places throughout its district office in Chicago, Illinois, copies of the notice attached hereto, marked "Ap- pendix A." Copies of said notice; to be furnished by the Regional Di- rector for the Thirteenth Region, shall, after being signed by the re- spondent's representative, be posted immediately by the respondent upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, de- faced, or covered by any other material; (d) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. I AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the respondent has discriminated in regard to the hire and tenure of employment of Paul K. Hastings on or about September 6, 1945. MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the above Decision and Order. THE AUSTIN COMPANY APPENDIX A NOTICE TO ALL EMPLOYEES 853 Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, -restrain, or coerce our employees in the exercise of their right to self-organ- ization, to form labor organizations, to join or assist Inter- national Federation of Technical Engineers', Architects', and Draftsmen's Union, No. 90-A, AFL, or any other labor organiza- tion, 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 reinstatement 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. - Arthur S. Brown ALL our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any such labor organization. THE AUSTIN COMPANY, Employer. Dated ------------------------- By ------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Robert Ackerberg, for the Board. McKnight, McLaughlin & Dunn, by Messrs. Edward J McLaughlin and Harry L. Kinser, of Chicago, Ill., for the respondent. Mr. Wilbur Millard, of Chicago, Ill., for the Union STATEMENT OF THE CASE Upon an amended charge duly filed January 23, 1946, by International Feder- ation of Technical Engineers', Architects', and Draftsmen's Union, No. 90-A, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Direc- tor for the Thirteenth Region (Chicago, Illinois), issued its complaint dated 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 10, 1946, against The Austin Company, Chicago, Illinois, 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, notice of hearing, and amended charge were duly served upon the respondent and the Union. Concerning the unfair labor practices the complaint alleged in substance that the respondent: (1) discharged Paul Hastings on or about September 6, 1945, and Arthur S Brown on or about September 14, 1945. and thereafter refused to reinstate them for the reason that each of them had joined and assisted the Union and (2) discharged Arthur S. Brown on or about September 14, 1945, and there- after refused to reinstate him for the reason that he distributed a petition among the employees of the respondent's Chicago branch to change the hours of employ- ment and engaged in concerted activities with other employees of the said branch. In its answer filed May 21, 1946, the respondent denied that it was engaged in interstate commerce within the meaning of the Act and denied the commission of the unfair labor practices alleged. The answer admitted the discharge of the employees but averred that the discharges were for good cause. b'or a further defense, the answer averred that after the respondent had instituted a procedure to change its hours of employment, Brown, without authority, distributed a petition during working hours and that thereby, Brown interfered with and dis- turbed the work of other employees, and that this activity of Brown was not a con- certed activity within the meaning of Section 7 of the Act. On May 27, 1946, counsel for the Board served a demand that the respondent's answer be made more particular and definite concerning the causes for the dis- charge of the employees named in the complaint. By telegraphic order dated May 29, 1946, the respondent was directed, pursuant to Article II, Section 15 of the Rules and Regulations of the Board, to make the allegations of its answer more particular and definite concerning the causes for discharge. Respondent complied with the said order and filed its jjill of particulars dated June 4, 1946. Pursuant to notice, a hearing was held.at Chicago, Illinois, do June 4 and 5, before Mortimer Riemer, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, the Union by its representative, and all parties participated in the hearing. A full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded the parties. At the conclusion of the Board's case, counsel for the respondent moved to dis- miss the complaint., The motion was denied. At the conclusion of the hearing, counsel for the Board moved to conform the pleadings to the proof. There was no objection to the motion and said motion is herein granted. Ruling was re- served on the motion of counsel for the respondent to dismiss the complaint. This motion is disposed of as hereinafter indicated. A date was fixed for the filing of briefs, and thereafter counsel for the Board and the respondent submitted their briefs. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT • I. THE BUSINESS OF THE RESPONDENT The Austin Company is an Ohio corporation, with its principal corporate offices in Cleveland, Ohio. The respondent is engaged in the business of designing and constructing office and industrial buildings and structures throughout the United THE AUSTIN COMPANY 855 States, Canada, and other countries. It maintains offices in Chicago, Illinois ; Cleveland, Ohio ; Detroit, Michigan ; Houston, Texas ; Indianapolis, Indiana ; Los Angeles, California ; New York, New York ; Oakland, California ; Philadelphia and Pittsburgh, Pennsylvania ; Seattle, Washington ; and St. Louis, Missouri. In addition, the respondent controls several wholly owned subsidiary corporations, including The Austin Co, Ltd, Toronto, Canada; Austin Engineers, Inc., a Michi- gan corporation ; and The Austin Securities Co., Ltd, a California corporation. The instant proceeding is concerned only with the respondent's Chicago district office. The Austin method, for which the respondent is known, is a complete service to the industrial world through which service, respondent analyzes industrial problems, makes a survey and report, followed by preliminary engineering, archi- tectural and construction drawings, followed finally by actual construction of the office, industrial building, or other structure involved. On some projects the respondent performs the designing and engineering services only and con- struction work is done by others. In the course and conduct of this business, the respondent causes large quantities of lay-outs, designs, plans, specifications, and blueprints to be mailed and delivered to its clients in various States through the United States, and purchases building materials and other materials in the course and conduct of said business. From time to time respondent causes its technical and supervisory employees to be transported from and through States of the United States to other States and foreign countries. In 1942, respondent received as gross income from all services in excess of $264,000,000, and in 1943 and 1944, the amounts received exceeded $164,000,000 and $48,000,000, respec- tively. As of June 1945, respondent was engaged in work and had executed contracts for work not yet in progress of a value exceeding $20,000,000. The Chicago district office services projects in Michigan, Wisconsin, Minnesota, Missouri, Oklahoma, Indiana, Kansas, Wyoming, Texas, and Louisiana. This area changes from time to time depending on the needs of clients and instructions from the head office. A typical project in the Chicago office proceeds in the following fashion : one of the district salesmen or engineers will visit a client to obtain necessary information or the client will request that the respondent survey its operations to determine the proper design of a proposed structure. After this has been accomplished, actual design working drawings are begun in the Chicago office Before the plans are completed, the purchasing of building materials is started by the Chicago office and actual construction in the field on the job site is commenced. As the operations proceed, the plans are completed and the Chicago office through its various departments, such as sales, estimating, engineering, accounting, and expediting, maintain close check over the construc- tion. Lay-outs and blueprints are completed in Chicago and sent to the job site. The supervising field force is likewise sent from the Chicago office, and a job superintendent is sent to the site. The superintendent hires local labor if available. When labor is not available, it is imported from any place obtainable. About 30 percent of the actual construction work on the job site is sublet to sub-contractors who engage their own labor. Sub-contractors are at all times responsible to respondent. Each project sets up an independent office on the job where books and pay-roll data are kept. Banking requirements for the project are performed locally. The principal items used in any project include structural steel, cement, brick, tile, steel sash, lumber, metal doors, paint, boilers, transformers, etc. Orders for these materials are placed by the Chicago office from sources as close to the site as possible for delivery on the job. A substantial amount of material that goes into any project crosses one or more State lines. For example, a substantial 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD portion of the structural steel used by the respondent on projects under the supervision of the Chicago district comes from Pennsylvania and Indiana. A substantial portion of the cement is purchased by the Chicago office from dealers in the local areas who in turn get it from producers in Indiana. The respondent itself ,fabricates steel at Cleveland, Ohio, which product is then used by its various branch offices in their operations throughout the United States. In the course and conduct of the operations of the Chicago office, as outlined above, the respondent did business in 1944 and 1945 as set forth in the table below. Item 1944 1945-fist halt 1. Value, design work___________________________ $226, 000 $184, 000 2. Value, design work on buildings to be constructed outside Illinois_____________________________ 70, 000 36, 000 3. Amount of purchases_________________________ 1,293,000 341, 000 4. Amount of purchased materials shipped to Illi- nois from places outside Illinois______________ 125, 000 40, 000 5. Value of construction work done in places' out- side Illinois________________________________ 1,256,000 233, 000 Numbered among the clients of the Chicago office and for whom buildings have been constructed are such leading American enterprises as the J. I. Case Com- pany, Racine, Wisconsin; Missouri Pacific Lines, Sedalia, Missouri; Atchison, Topeka & Santa Fe Railroad, Chicago, Illinois ; Pure Oil Company, Nederland, Texas and Heath, Ohio ; Quaker Oats Company, Marion, Ohio ; Time Incorporated, Chicago, Illinois, and United Airlines Inc, Chicago, Illinois; all of which oper- ate on a nation-wide basis. The nature of the respondent's operations are such that any delay in the engineering department of the Chicago office would inter- fere with, if not stop,'actual construction in the field. From 1942 to date, the respondent has employed between 800 and 1,000 engineers and designers. In October 1945, the Chicago office employed 21 structural engineers, 9 electrical engineers, and 21 mechanical engineers.' The respondent denied that it was engaged in interstate commerce within the meaning of the Act. The undersigned finds on the basis of the foregoing facts that the respondent caused a substantial amount of lay-outs, blueprints, designs, specifications, and personnel to be transported and delivered in interstate com- merce, and that it has caused a substantial amount of materials and building materials to be transported and delivered in interstate commerce to and through States of the United States other than the-State of Illinois. It is also clear that the Chicago office performs a vital service, preliminary to the manufacturing process in some instances, and in aid of interstate transportation and dissemina- tion of information in other instances. Its clients are directly and extensively engaged in interstate commerce and a labor dispute limiting the respondent's designing, drafting and engineering services would necessarily tend to curtail and disrupt the interstate movement of its clients' products and services. The undersigned finds that the respondent is engaged in commerce within the meaning of the Act.' 1 The findings in the Section above are based upon the pleadings , the testimony of Charles W. Payne; Jr., vice-president and district manager of the Chicago office, and stipulations entered into between counsel for the Board and counsel for the respondent. 2 See Matter of Spalek Engineering Company, 45 N. L. R. B. 1272 ; Matter of Electrical Testing Laboratories Inc., 65 N. L R. B. 1239. THE AUSTIN COMPANY 11. THE ORGANIZATION INVOLVED 857 International Federation of Technical Engineers', Architects' and Draftsmen's Union, No. 90-A, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the respondent. ' Ill. THE UNFAIR LABOR PRACTICES There is no previous history of collective bargaining between the respondent and its draftsmen and engineers. The respondent's engineering department is divided into a structural division, architectural division, mechanical division and electrical division. In September 1945,-there were between 60 and 70 employees in the engineering department under the supervision of Arthur D. Engle, the dis- trict engineer. The engineering department is confined to a single area in the building occupied by the district office. A matter requiring preliminary consideration for an understanding of the two discharges, hereafter discussed, is the respondent's office procedure, particu- larly what is known as the "squad system." Engineers and draftsmen in the electrical division, in performing their work, have occasion to obtain information or consult with engineers or draftsmen in other divisions who are working on the same structure. When the need for consultation arises, the correct procedure sought to be followed in the respondent's office, as well as generally observed in engineering offices, is for the engineer or draftsman to first consult his squad leader, who supervises the work of 5 or 6 engineers or draftsmen working under him. If the squad leader cannot furnish the requested information it becomes the duty of the squad leader to obtain the information either from the chief draftsman, the squad leader, or the engineer or designer in the other division concerned with the details of the plan. The information thus obtained is then relayed to the electrical engineer who changes, modifies, or revises his design in accordance with the information ° Engle testified that the squad system had been common practice in the respondent's organization for 35 years and that all graduates of engineering schools understand this system. The practice is not enunciated by formal posted rule or proclamation, and in the case of the two employees hereafter discussed, no specific announcement that this system was to be followed and enforced was made at the time they were hired. This procedure is followed in engineering offices to avoid duplication which might result if an engineer, on every occasion that a problem arose, were to proceed directly to obtain the information from an engineer in another division, and to pin responsibility upon the squad leader in the event of mistakes. Tenney, an electrical engineer called by the Board, and at the time of the hearing a squad leader, testified that it was not necessary for an electrical draftsman to visit other divisions and that the squad system was "generally understood." Tenney testified further that electrical draftsmen obtain information directly only when directed to do so by the squad leader, and he knew of no occasion when engineers of other divisions would be consulted concerning the detail of their work, with- out first obtaining the approval of the squad leader. Engle acknowledged how- ever, that the system was not perfect in its operations and that "sometimes a man would run back on his owns" to obtain information. Vice-President Payne likewise acknowledged that engineers and draftsmen do wander from their draft- s The word "respondent" where used hereafter refers only to the Chicago district office, Chicago, Illinois. I Findings based upon the testimony of Payne, Engle, Ernest B. Halas, and Robert B. Tenney. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing boards and violate the practice and that the condition had not been "cor- rected . . . entirely." Payne thus described the rule : "We prefer and re- quest that the men do not leave their desks; that they are attentive to their work, and that they do not attempt to obstruct the operations or prevent others from working." For enforcement of the rule, Payne relies upon Engle. The undersigned concludes and finds, upon the basis of the foregoing, that it was the rule in the respondent's office for engineers and draftsmen in need of informa- tion concerning the detail of their work to first consult their squad leader ; that this rule, although an accepted engineering practice, was not published or posted; that the rule was not perfect in its operations ; that it was honored in the breach as well as in the observance; and that engineers and draftsmen did wander from one division into another, by-passing their squad leaders, in order to obtain information. The discharge of Paul• K. Hastings Hastings, an electrical draftsman, was hired by Engle on May 7, 1945. Hastings' duties were to design electrical installations for buildings and to place on paper the designs which might thereafter be printed for use on con- struction. At the time that Hastings was hired he received no instructions or directions from Engle concerning his work or the respondent's practices and pro- cedures. Hastings worked under squad leaders Ernest G. Ross and Karl H. Schattke. - Hastings signed an application for membership in the Union on or about August 23, 1945, and from that date until the date of his discharge on Septem- ber 6, 1945, he spoke to 9 employees including Arthur` S. Brown, the other dis- chargee, on and after company time concerning the working conditions in the engineering department and the advantages of joining the Union. Hastings and Brown compiled a list of the employees they had spoken to about the Union. Hastings testified that every day need arose for him to consult employees in the structural, 'mechanical, architectural, and plumbing and heat divisions of the engineering department concerning the details of his work ; the con- versations took from 10 to 45 minutes, during the course of which he talked about other matters, including "the weather, the ball game, the war, unionism, common every day subjects " Hastings was never told of any practice which forbade him leaving his drafting board and there is no evidence that prior to discharge, Hastings was personally reprimanded or cautioned because of absences from his drafting board or for any other reason concerning the qual- ity or quantity of his work.' Once when squad leaders Ross and Schattke were at work 10 to 15 feet in distance from where Hastings sat, Hastings was asked by employee Hurley what the Union proposed to do about some condition of work. Hastings gave "an answer that merely was to pass off" the question Hastings observed no reaction by either Ross or Schattke to Hurley's question and there is no. evi- dence that this brief conversation was overheard by either Ross or Schattke. On the morning of Hastings' discharge, Engle called him to his office and there told him that his services were not satisfactory and were terminated as of 5 p in. that day. Hastings expressed surprise and stated that he thought he was "doing a good job" Engle replied that he too was surprised, he believed that Hastings' work was satisfactory. When Hastings asked the reason J c On one occasion , the time of which is not fixed , Engle asked Hastings for a "definite commitment" on a specific task and observed that "a certain amount of time . . . be spent on the job." This is the nearest thing approaching censure or criticism of Hastings' work. THE AUSTIN COMPANY 859 for his discharge, Engle replied that he could say nothing further, but if Hast- ings returned in a month he would be able to tell him more a Thereafter Hast- ings asked Ross what he knew about his discharge and Ross replied, "noth- ing," stating in addition that his work was "swell." Then Ross spoke to Schattke who expressed surprise, adding that Hastings' work was "fine." In view of these comments, Hastings asked Schattke and Ross for a letter of recommendation, which was given to him.' In its bill of particulars, the responder" cited the following reasons for the discharge of Hastings as well as Brown: "(a) Inattentiveness to work; (b) Dis- turbing other employees by visiting and being away from drafting boards; (c) Inability to adjust themselves to The Austin Company's organization; (d) Failure to accept orders; (e) Argumentativeness, (f) Lack of cooperation; (g) Inapti- tude: (h) Inability to work well with others clue to traits of personality and disposition " Testimony of the respondent's witnesses at the hearing was in support of the first three reasons quoted above There is no evidence that Hastings failed to accept orders, was argumentative, refused to cooperate, lacked aptitude or because of his personality was unable to work with other employees. Testi- mony in support of the first three reasons is in the main directed to the issue that Hastings did not observe the squad system rule and was frequently absent from his drafting board. In this connection, Hastings admitted that he found it necessary to consult with other engineers for periods of 10 to 45 minutes in dura- tion. Payne testified that sometime in August 1945, he noticed Hastings was not at his desk and he spoke to Engle about it and asked him to correct the situation. Payne did not investigate the reason for Hastings' absence and when he spoke to Engle he did not confine his remarks particularly to Hastings, but spoke generally of the condition which permitted such an absence. Payne testified further that he concluded from his observations' that Hastings was not conscientious in his efforts and lie passed his conclusions along to Engle. Engle testified that after Payne had called his attention to Hastings, he checked and found him visiting for as much as 15 to 20 minutes at the time. Engle testified also that, although Hastings' work was "good," he finally decided to discharge him because his absences from the drafting board became "flagrant." Engle acknowledged that he never investigated the reasons for IIiistings' absences, but knew therefrom that something was wrong Engle observed Hastings talking to Brown and other employees, but he could not recall that he ever spoke to Hastings or complained to his squad leaders, nor could he recall any complaint from the squad leaders about Hastings violating the squad system rule. Whether in tact this conduct of Hastings was so violative of the respondent's squad system as to warrant discharge, or whether it was because Hastings talked about the Union, is the question to be resolved Admittedly the system was breached by Hastings as well as others, although respondent sought to limit the violations There is no history of previous discharges or reprimands for rule violation and it is clear that Hastings was never criticized. Moreover, there is no evidence that the respondent forbade employee conversations and 9 Finding based on Hastings ' credible testimony. Engle testified : 11. . . finally I just called him [Hastings] in and said his work was unsatisfactory, and we would have to get along without him, because in a big organization that becomes contagious, and the first thing you know the whole thing is out of balance." I The letter of recommendation signed by Ross and Schattke stated : "This is to certify that Mr. Paul Kenneth Hastings has worked under the direction of the undersigned at various times while employed in this office . He was engaged in the preparation of electrical drawings pertaining to industrial buildings . His work has been entirely satisfactory during the time he has been under the supervision of the undersigned. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hastings conversed about the war and ball games as well as trade unionism. Similarly, there is no direct evidence that his conversations impeded production or interrupted the work of others. Finally , this record discloses that at the time Hastings was discharged , the respondent was exceedingly busy and shortly there- after advertised for additional engineers and draftsmen. Thus the reasons assigned for the discharge of Hastings are quite inconclusive, particularly in view of the fact that there is no showing that his conduct upset the respondent's production schedules by slowing down his own efforts or those of other employees . In view of the inconclusiveness of the assigned reasons for Hastings' discharge, the question next arises whether in fact it was because of his union interest and activity. The most that can be said on this latter point is that Hastings , during the entire course of his employment from May 7, 1945, to September 6, 1945, spoke to 9 out of some 60 or 70 employees concerning the Union, and that on one occasion ad inquiry to Hastings about the Union was made while his squad leaders were 10 to 15 feet removed . There is no evidence that they overheard this inquiry or thereafter communicated it to Engle . In a small office, where employees are in direct contact with each other and under the frequent and close observation , of their supervisor, it is possible for information concerning any single employee to reach the supervisor in short order . Office gossip and small talk have a way of traveling which sometimes equals the fastest mode of direct communication. But to find that Engle knew of Hastings ' union activity it must be inferred that Engle was told about it, or concluded from his observations of Hastings' conversations with other employees that they were in part concerned with the Union . The undersigned is unable to reach the conclusion and find as a fact based on logical inference from the known facts, that Engle knew of Hastings' union interest or activities and discharged him for that reason . Although as previously indicated, the undersigned is not altogether convinced that the reasons advanced by respondent for the discharge of Hastings are in fact the true reasons for the discharge , nevertheless , in the undersigned's opinion , there is insufficient evidence to support the conclusion that Hastings was discharged by reasons of his union activity . Therefore, it will be recommended that the complaint be dismissed insofar as it alleges the discriminatory discharge of Paul K Hastings. The discharge of Arthur S. Brown The complaint alleged that Brown was discharged on September 14, 1945, because he joined or assisted the Union, and for the further reason that lie dis- tributed a petition among the respondent's employees to change the hours of em- ployment and engaged in concerted activities. The respondent's answer denies that Brown was discharged by reason of his union membership or because he circulated the petition, but rather because Brown, without authority, distributed the petition and conferred with other employees during working hours to such an extent that the production of work was disturbed. The additional reasons set up in the respondent's bill of particulars heretofore referred to, were advanced at the hearing to justify Brown's discharge. - Brown is a graduate electrical engineer of some 9 years' experience in his pro- fession. He was hired by Engle on or about August 16, 1945, and assigned to squad leader Ross. His duties to design power and lighting systems for com- mercial and industrial buildings were outlined by Ross but Brown was given no instructions concerning the respondent's office procedures. Brown testified, as did Hastings, that in the course of his work it became necessary to consult with engineers in other divisions concerning the details of designs. Sometimes Brown followed the practice of first consulting Ross and on other occasions he went directly to the engineers engaged in work on the same project for the information. THE AUSTIN COMPANY 861 Brown testified that this would happen every 2 or 8\days and that the consul- tations with other engineers would take "from a few minutes to maybe a half hour," during which conversations sometimes digressed into other matters "of interest to people generally"." Brown was a member of the Union at the time he was employed and from on or about September 1, down to his discharge on September 14, 1945, Brown spoke to some 9 or 10 employees about the Union. If, on the initial approach to an employee, Brown found the reaction favorable, he would tell the employee that the Union was trying to get all of the engineers interested so that the office could be organized. Brown never engaged in these activities in the presence of other employees, aside from the one spoken to, and he admitted that some of his union conversations were on company time. One of the subjects of frequent discussion, since it was a matter of general office dissatisfaction, were the working hours. At this time the engineers were working 48 hours a week which necessitated overtime several evenings during the week. . Brown was acknowledged to be a good engineer and he was never criticized for speaking to other engineers concerning engineering problems or the conver- sations he held with them. The same observations concerning the respondent's squad system made in considering the case of Hastings are likewise pertinent in the case of Brown. It was the same practice that was involved and, as indicated above, Brown did on occasion depart from its observance. Although Brown was judged a competent engineer, he was, on one occasion, criticized by Tenney for his method of circuiting lights. Brown's method was satisfactory but did not conform to the way Tenney wanted it done. Brown took the attitude that his method was correct and Tenney allowed the incident to pass that way. Engle testified that Brown was argumentative and reluctant to accept suggestions so that he was allowed to complete his work in his own way in order to save time. Engle testified' also that in September 1945, he received several complaints about Brown and on checking he noticed that Hastings and Brown were together a good deal and that Brown was away from his desk for long periods of time. Engle could not name the complainants and he testified that he could not remember any squad leader complaining about Brown. He testified finally that Brown did not fit into the respondent's scheme of office procedures which had to be highly geared and coordinated in order to maintain peak pro- duction, and for this reason, plus the fact that Brown was frequently absent from his desk, Engle decided to discharge him. In considering Engle's testimony in support of the reasons set forth in the respondent's bill of particulars for Brown's discharge, it may be that Brown was argumentative and showed a certain inaptitude for the respondent's method of doing business. But this testimony is so general in nature as to make it difficult to accord it weight as to the real factor for the discharge. The under- signed does not believe that Brown was so argumentative as to warrant discharge on that ground alone, and the only evidence to support this trait is the testimony of Tenney, which on this point was rather insubstantial. Moreover, it is not without significance that any trained professional man, who from years of prac- tice has acquired a certain manner and method of performing the duties and functions of his profession, becomes to some extent an individualist performer. 8Biown testified " . . the building has a certain structure, and running electrical conduit and wiring we have to know just how that building is constructed so we don't have any interferences on it, so we have to collaborate with the structural departments, me- chanical departments, to see that there is no interference. In that line, anyone who was working on the same job in these other departments, it would be my business to work things out with them if I was so instructed by Mr. Ross, and at various times I was." 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Similarly, with respect to the other reasons cited such as for example, "inatten- tativeness tb work" or "inability to adjust . . . . to The Austin Company's organization," in view of the testimony that Brown was a competent engineer and that his squad leaders Ross and Schattke had never complained about his work, it is difficult to conclude that these reasons also justified his discharge. Finally, although the undersigned believes and finds that Brown departed on occasion from the respondent's squad system procedure and engaged other em- ployees in conversation, he was never criticized for this by his squad leaders or by Engle and there was no company rule which forbade employee conversa- tions. The undersigned is of the opinion that the real reason for Brown's dis- charge is found elsewhere and consideration is now directed to those events which finally led to Brown's discharge. In the summer of 1045, the respondent sought to change its hours of employ- ment in order to eliminate night work. Implicit therein, was the need to evolve a plan which would not decrease overtime pay since this was considered an essential element in the take-home-pay of the engineers. Engle asked the squad leaders to poll the engineering department on a practical plan which would ac- complish this purpose. The squad leaders reported inconclusive results over proposed suggestions and Engle directed them to work out a system and inform him when they had the concurrence of a majority of the employees. When Brown was hired on August 16, 1945, this matter was a topic of general conversation. Although Brown made no effort to inject this question into any discussion he had with employees about the Union, the subject arose inevitably. Brown was informed that previous to his employment, a petition had been cir- culated to change the hours of employment. During the week prior to his dis- charge, Brown asked several employees why they did not get up another petition requesting a change in the hours of employment. Brown first sought to have others initiate the petition and he asked several 'co-workers to do so but they refused. This was on or about September 7, 1945. When Brown ascertained that among the employees he had spoken to, no one was willing to initiate the petition he did so on or about September 10.° Although the respondent had reached its decision to eliminate night work in the summer, it is clear from testimony that no change had been made when Brown decided on his petition. Brown was the first to sign the petition and then passed it along to his colleagues, helping at times in its circulation. In all, he took about 15 minutes to do this. When Brown had obtained 11 signatures, he gave it to his squad leader Schattke. Brown never saw the petition thereafter and it was passed around among other employees, including squad leader Ross, until 45 signatures were obtained. The next day Brown asked Schattke what had happened to the petition and he was informed that nearly all the employees had signed and that it had been turned in to Engle, and that both Engle and Payne were pleased with the petition. When Engle receivedkthe petition he observed that a majority of the engineering department employees had signed and he took it to Payne who approved it. The hours requested in the petition were thereafter established in compliance with the petition. Engle testified that he knew that Brown had drawn up the petition. On September 14, the paymaster presented Brown with a letter, signed by Engle, dated September 13, 1945, stating: "We regret to advise it is the decision ° The petition stated : "We , the undersigned believe that it would benefit both the com- pany and the employees to discontinue working nights . It would be better for the health of the employees , which would result Jr. their increased efficiency. We propose that the working schedule be rearranged as follows: Monday through Friday, 8: 00 to 12 : 00-1 : 00 to 5 : 45 ; Saturday , 8: 00 to 12: 15. Total 48 hours." - O THE AUSTIN COMPANY 863 of the Management that s our services are terminated as of 5 p. in., Friday, Sep- tember 14, 1945." On receipt of the letter Brown sought to see Engle, who was out of town. He then inquired for Ross, who was likewise out of town, and Schattke when questioned could give Brown no reason for his discharge. Brown returned to the office and saw Engle on September 18. He asked Engle why he had been discharged According to Brown's testimony, Engle told him that he had "stepped out of bounds by getting up that petition" ; that a petition "should originate with an organization man" and not be instituted by a new em- ployee ; and "that the company did not want new employees organizing the men for any purpose " Brown testified further as follows concerning his conversa- tion : . . I their asked if I had been fired because I was trying to organize the men in the union, and-he said yes He said he didn't object to the men or- ganizing among themselves, but the company did not want outsiders com- ing in to organize the men. I then asked him if he knew that it was a viola- tion of the law to fire a man for union activity. He answered by only re- peating that I had stepped out of bounds and that things at The Austin Com- pany just weren't done that way. In the conversation, according to Brown, no criticism was made of his work and none of the reasons set up in the respondent's bill of particulars were advanced as grounds for his discharge. Engle testified that he did not discharge Brown because he circulated the pe- tition but tl at he criticized him for hio, activities in connection with the petition for the reasons that he was a "new man"; it was not for Brown to start or initi te a petition, and the pi oper procedure in this case was to go to a squad leader or directly to Engle, "but not to originate a petition himself." Engle's further testimony concerning the conversation with Brown was as follows: He [Brown] asked me why lie had been discharged and I told him that his services weren't satisfactory that he was putting in, and he hadn't worked out satisfactorily to us, and I told him also, among other things, I criticized him for going over the heads of the rest of the men and working up a petition He says, "What do you think I am trying to do, organize a union?" He says, "I don't even belong to a union ." I said , "Union? I didn't know any union matter here." I said, "It isn't that. It is just good business to try toy keep in harmony with the men you are working under, Brown " Brown was a precise witness. He favorably impressed the undersigned Engle, on the contrary, sought to magnify trifling details out of all proportion to their true import. He was at times evasive and given to generalities in describ- ing events His testimony concerning the reasons why he criticized Brown for initiating the petition did not impress the undersigned, particularly in view of the fact that Engle had requested an expression of majority opinion, and that thereafter he and Payne approved the petition. Further, on the straight issue of credibility as between Brown's version of the conversation with Engle, and the latter's, the undersigned credits and believes the testimony of Brown as the more reasonable under all circumstances. Having been denied specific reasons for his discharge, Brown asked point blank if it was because he was trying to organize the Union. This appears a logical question in view of Engle's generali- ties, and more reasonable in the light of Brown's activities, than Engle's version that Brown asked, "What do you think I am trying to do, organize a Union?" For the reasons heretofore expressed , the undersigned* cannot afford great weight to Engle's criticism of Brown for initiating the petition. Admittedly the goal of the petition was respondent's objective but up to the time of its initiation 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD group leaders had failed to muster a majority expression of opinion. Brown's effoits achieved that aim. The undersigned is of the opinion that Engle's charac- terization that Brown "hadn't worked out satisfactorily", was directed not to Brown's ability as an engineer or that he infrequently violated the squad system rule, but rather to the fact that on these infrequent occasions Brown sought to organize the Union. As previously indicated, the rule obviously did not forbid discussions of matters of general human interest, including trade unions, pro- vided of course, that work was not impeded. There is no showing that the latter was the case. As found above, Engle told Brown that he was discharged for trying to organize the Union as distinguished from any time he may have spent talking about other matters in violation of the squad system. The undersigned concludes and finds that Brown was discharged because he tried to organize the respondent's engineers and because he engaged in con- certed activities in violation of Section 8 (1) and (3) 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 ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has violated Section 8 (1) and ( 3) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. The undersigned found that the respondent discharged Arthur S. Brown be- cause of his efforts to organize the respondent's engineers into the Union. A discharge of an employee for engaging in union or concerted activities is a serious violation of the Act and indicates a purpose to interfere with the rights, of employees generally as guaranteed by the Act. Therefore, in order to make effective the policies of the Act, it will be recommended that the respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed employees in Section 7 of the Act. 10 Respondent's counsel argued in°its brief that a finding of unfair labor practices was unwarranted on the ground that "The evidence failed to show that re- spondent had any knowledge that employees Hasttings and Brown were engaged in Union activities." The undersigned has found that such knowledge did in fact exist with respect to Brown. However, knowledge that a union was the beneficiary of Brown's organizational activity is not controlling in this case. Brown initiated the petition after consultation with his fellow employees. He circulated it and signed it with 44 of his co-workers. Such activity constituted the concerted activity contemplated in Section 7 of the Act. As has been found above, one of the motivating reasons for Brown's discharge was his concerted activity in circulating the petition. Consequently, if the findings herein were based on concerted activities alone the remedy recommended herein would be appropriate. The Board has held that a discharge based on concerted activities not only violates Section 8 (1) of the Act but also discourages membership in a labor organization in violation of Section 8 (3). However, whether Brown's concerted activities be viewed as a violation of Section 8 (1) or 8 (3), the 0 ION. L. R. B. v. Express Publishing Co., 312 U. S. 426; May Department Stores v. N. L. it. B., 326 U. S. 376. 1 THE AUSTIN COMPANY 865 undersigned deems it necessary, in order to effectuate the purposes of the Act, to recommend Brown's reinstatement with back pay.:" In view of the finding that the respondent discriminated regarding the hire and tenure of employment of Arthur S. Brown, the undersigned will accordingly recommend that the respondent make whole Brown for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the discrimination against him to the date of the offer of reinstate- ment, less his net earnings," during such period. Upon the basis of the above findings of fact and the entire record in the case, the undersigned makes the following : CONcLusloNS OF LAW 1. International Federation of Technical Engineers', Architects', and Drafts- men's Union, No. 90-A, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. , 2. By discriminating with regard to the hire and tenure of employment of Arthur S. Brown, thereby discouraging membership in International Federation of Technical Engineers', Architects', and Draftsmen's Union, No. 90-A, affiliated with the American Federation of Labor, respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3 By interfering with, restraining, and coercing its employees in the exer- cise 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. 5. The respondent has not violated Section 8 (3) of the Act by the discharge of Paul K . Hastings. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that The Austin Company, its officers, agents, successors, and assigns shall 1 Cease and desist from : (a) Discouraging membership in the International Federation of Technical Engineers', Architects', and Draftsmen's Union No 90-A, affiliated with the Ameri- can Federation of Labor, or any other labor organization of its employees by dis- charge, and refusal to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any terms or conditions of employment ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form labor or- "Matter of Rockingham Poultry Marketing Cooperative, Inc, 59 N. L. R. B. 486, 486-487; Matter of The Sandy Hill Iron & Brass Works, 55 N. L R B. 1, 1-2; Matter of Ever Ready Label Corporation, 54 N. L. R. B. 551 , 557-558; Matter of Texas Textile Mills, 58 N L. R B 352, 353. L By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company, 8 N L. R B 440. Monies received for work performed upon Federal, State, county. municipal , or other work-relief projects shall be considered as earn- mg^ See Republic Steel Corporation v N L. R. B , 311 U. S 7. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ganizations, to join or assist International Federation of Technical Engineers', Architects', and Draftsmen's Union, No. 90-A. affiliated with the American Fed- eration of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guar- anteed 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 to Arthur S Brown immediate and full ieinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, (b) Make whole Arthur S Brown for any loss of pay he may have suffered by reason of the respondent's discrimination against him in regard to his hire and tenure of employment in the manner set forth in the section entitled "The remedy," less his net earnings" during said period; (c) Post in conspicuous places throughout its district office in Chicago, Illinois, copies of the notice attached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, after being signed by the respondent's representative, shall be posted immediately by the re- spondent upon the 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 Thirteenth Region in writing, within ten (10) days from the date of the receipt of this intermediate Report, what steps the respondent has taken to comply therewith 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. It is also recommended that the allegations of the complaint that the respondent discriminatorily discharged Paul K. Hastings, be dismissed 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 lie relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of excep- tions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10j days from the date of the order transferring the case to the Board. Any party desiring to submit a brief in.sup- port of the Intermediate Report shall do so within fifteen (15) days from the date 13 See footnote 12, supra. THE AUSTIN COMPANY 867 of the entry of the order transferring the case to the Board, by filing with the Board an original and four copies thereof, and by immediately serving a copy thereof upon each pf the other parties and the Regional Director. MORTIMER RIEMER, Trial Examiner. Dated July 10, 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 Rela- tions 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 International Federation of Technical Engineers', Architects', and Draftsmen's Union, No 90-A, AFL or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without preju- dice 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. Arthur S. Brown All our employees are free to become or remain members of the above-named unioii or any other labor organization We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. THE AUSTIN 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. 712344-47-vol 70-56