Lakey Foundry and Machine Co.

In the Matter of LAKEY FOUNDRY AND MACHINE COMPANY and CHAPTER 136, FOREMAN'S ASSOCIATION OF AMERICA, UNAFFILIATED Case No. 7-C-1384.-Decided September 3,, 1946 Mr. Sylvester J. Pheney, for the Board. Mr. Joseph T. Riley, of Muskegon, Mich., for the respondent. Mr. William Valiance, of Detroit, Mich., for the Union. Mr. Milton E. Harris, of counsel to the Board. DECISION AND ORDER On June 6,1946;• Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices affecting commerce 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 re- spondent filed exceptions to the Intermediate Report and a supporting brief. The Board has considered the rulings of the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the modifications noted below. THE REMEDY By the unfair labor practices and other anti-union conduct in which we, like the Trial Examiner, have found that the respondent engaged, the respondent disclosed a purpose to defeat self-organization among its supervisory employees generally. Thus, Secretary and Vice-Presi- dent Jones asked an employee what he was trying to do by soliciting foremen to join a labor organization; President and General Manager Ostergren suggested to a foreman that he draft an agreement whereby the unaffiliated foremen's social club would present grievances to the .70 N. L. R. B, No. 899. _ 1068 LAKEY FOUNDRY AND MACHINE COMPANY 1069 management; and, after a draft had been submitted to him, 'refused to consider it because the club was "too damn much like the C. I. O."; at a foremen's meeting Plant Superintendent Evans, because of his attitude of opposition to Foreman Kruithoff's union activities, se- verely and unjustly criticized Kruithoff's work and his conduct in bringing in outsiders to organize the foremen; Evans and Foundry Superintendent Robidoux then discriminatorily discharged Kruithoff and, together with Labor Relations Director Kramer, discriminatorily refused Kruithoff's request for a non-supervisory position; Oster- gren, Evans, and Kramer tried to coerce Diephouse and three other foremen, all of whom were prominent for their union activities, into withdrawing from the Union, and demoted Die'phouse to a non-super- visory position upon failing to obtain his withdrawal from the Union; and Evans, Kramer and Robidoux on several subsequent occasions told Diephouse that he would be reinstated to his supervisory posi- tion if he agreed to abandon his activities on behalf of the Union. We are convinced that the foregoing conduct is persuasively related to the unfair labor practices proscribed in the Act, that danger of their commission in the future is to be anticipated from the respond- ent's conduct in the past, and that the preventive purposes and policies of the Act would be thwarted and the interdependent guaranties of Section 7 rendered ineffective unless our Order were coextensive with the threat.' We shall, therefore, order the respondent to cease and desist from in any other manner infringing on the statutory rights of its supervisory employees. ORDER Upon the foregoing findings of fact and 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, Lakey Foundry and Machine Company, Muskegon, Mich- igan, and its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Discouraging membership in Chapter 136, Foreman's Asso- ciation of America, unaffiliated, or any other labor organization of supervisory employees, by discharging any of its supervisory em- ployees, by demoting any of them to non-supervisory positions, by refusing to transfer to non-supervisory positions employees thus dis- charged, by offering to reinstate to supervisory positions employees thus demoted, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of em- ployment; I See N. L. R. B. v. Express Publishing Company, 312 U. S. 426, May Department Stores Company v. N. L. R. B., 326 U. S. 376. 1070 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD (b) In any other manner interfering with, restraining, or coercing its supervisory employees in the exercise of the right to self-organiza- tion, to form, join, assist, or bargain collectively through Chapter 136, Foreman's Association of America, unaffiliated, or any other labor organization of supervisory employees, and to engage in con- certed activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Neal Kruithoff and Donald Diephouse immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; - (b) Make whole Neal Kruithoff and Donald Diephouse for any loss of pay they have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the respondent's discrimination against him to the date of its offer of reinstatement, less his net earnings during such period; (c) Post throughout its plant at Muskegon, Michigan, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director For 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; (d) Notify the Regional Director for the Seventh Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL Ea+IPLOYEES 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 employ ees that : WE WILL NOT in any manner interfere with, restrain, or coerce our supervisory employees in the exercise of their right to self- organization, to form, join, assist, or bargain collectively through Chapter 136, Foreman's Association of America, unaffiliated,-or LAKEY FOUNDRY AND MACHINE COMPANY 1071 any other labor organization of supervisory employees, and to engage in concerted activities, for the purpose of collective bar- gaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Neal Kruithoff Donald Diephouse 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 employment against any of our supervisory em- ployees because of membership in or activity on behalf of any such labor organization. LAKEY FOUNDRY AND MACHINE COMPANY, Employer. By ------------------ p--------- -------------- ( Representative ) (Title ) Dated---------------------- NOTE.-Any of the of the above-named employees presently serving in the armed forces of the United States will be offered full reinstate- ment 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. INTERMEDIATE REPORT Mr. Sylvester J. Pheney, for the Board. Mr. Joseph T Riley, of Muskegon, Mich, for the respondent Mr. William Valiance, of Detroit, Mich., for the Union. STATEMENT OF THE CASE Upon an amended charge filed on March 8, 1946, by Chapter 136, Foreman's Association of America, unaffiliated, herein sometimes called the Union,' the National Labor Relations Board, herein called the Board, by its Regional Director for the Seventh Region (Detroit, Michigan), issued its complaint dated March 11, 1946, against Lakey Foundry and Machine Company, Muskegon, Michigan, herein called the respondent The complaint alleged that the respondent had engaged in and was 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 Relations Act, 49 Stat. 449, herein called the Act Copies of the complaint, I The original charge was filed by the Union on November 20, 1944. 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amended charge, and the notice of hearing were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint, as amended without objection at the bearing, alleged in substance (1) that, in violation of Section 8 (1) and (3) of the Act the respondent discharged Neal Kruithoff and demoted Donald Diephouse on or about September 27, 1944 and November 7, 1944, respec- tively, and has since refused to reinstate them to their former positions, because of, and for the purpose of discouraging, union membership and activities ; and (2) that, since the fall of 1943, the respondent in violation of Section 8 (1) of the Act has (a) interrogated employees concerning their union membership and activities; (b) attempted to force an employee, who was known to have engaged in concerted activities, into action justifying his discharge by unjustly and falsely accusing him of poor workuhanship and informing him he should not have en- listed the Union's aid in organizing the supervisory employees ; (c) threatened employees with economic reprisals unless they resigned their union membership and ceased their union activities, and promised rewards, including reinstatement to former positions, if they did so; (d) forced employees to choose between con- tinued employment with the respondent and union membership and activities; and (e) villified and disparaged the Union by stating to employees, inter alia, that men of dubious reputation ran the Union solely for their own pecuniary interests, that the employees would receive no benefits through the Union, and inferentially at least, that the respondent would refuse as a matter of principle to bargain collectively with, or concede employee-benefits to, the Union. The respondent filed an answer which in substance (1) denied the allegations of the complaint concerning the unfair labor practices and the status of the Union as a labor organization within the meaning of the Act; (2) asserted that the discharge of Kruithoff and the demotion of Diephouse were for just cause; and (3) denied the Board's jurisdiction on the ground that Kruithoff and Diephouse, and other persons holding supervisory positions, are "not employees within the meaning, purview, and intent of the National Labor Relations Act " Pursuant to notice, a hearing was held in Muskegon, Michigan, from April 9 to April 13, 1946, inclusive, before the undersigned Trial Examiner, duly desig- nated by the Chief Trial Examiner. The Board and the respondent, appearing by counsel, and the Union, appearing by a representative, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the beginning of the hearing the respondent objected to the jurisdiction of the Board and, in effect, moved to dismiss the complaint on the grounds set forth in the answer. This objection was overruled and the motion, in effect, denied. At the end of the Board's case, a motion by the respondent to dismiss the complaint upon the same grounds, and also upon the ground that the charter of Chapter 136 of the Union had been revoked was denied by the undersigned. At the conclusion of the hear- ing, the undersigned granted unopposed motions by counsel for the Board and for the respondent to amend the complaint and the answer, respectively, to conform to the proof with respect to minor matters such as dates and the spelling of names. At the same time, decision was reserved upon the respondent's renewal of its motion to dismiss the complaint. This motion is now denied in conformity with the considerations hereinafter set forth. At the end of the hearing, the parties waived oral argument. Thereafter, pursuant to leave granted to all parties at the hearing, the respondent filed a brief with the Trial Examiner. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : LAKEY FOUNDRY AND MACHINE COMPANY FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT - 1073 The respondent, Lakey Foundry and Machine Company, a Michigan corporation with its principal office and place of business in Muskegon, Michigan, was engaged from January 1942 until approximately July 1945, in the manufacture, sale, and distribution of steel and iron castings at its Muskegon plant for the use of the armed forces of the United States. Since July 1945, the respondent has engaged at its Muskegon plant in the manufacture, sale and distribution of iron castings for industrial and automotive manufacturers. From January 1942 until the time of the hearing, the respondent annually purchased raw' materials of a value in excess of $1,200,000 and annually sold finished products of a value in excess of $3,000,000. The sources of at least 50 percent of the respondent's raw materials and the shipping destinations of at least 40 percent of its finished products were outside the State of Michigan. The respondent admitted for the purposes of the hearing, that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED The respondent contends that its foremen, some of whom organized and became members of Chapter 136, Foreman's Association of America, are not "employees" and that Chapter 136, Foreman's Association of America, is not a labor organiza- tion within the meaning of the Act. The respondent also urges the dismissal of the complaint for want of a "party complainant" because, it asserts, the charter of Chapter 136 was revoked by the Foreman's Association before the amended charge of March 8, 1946, was filed in the Chapter's name. The undersigned finds these contentions to be without merit. It is undisputed that the respondent's foremen, who joined Chapter 136 and were generally eligible for membership therein, comprise the lowest rank of the respondent's supervisory employees,' with power and authority, however, to hire and discharge,' to assign work to, and to supervise the men under them, to pro- mote men from a labor rate job to an incentive rate job, and to make effective recommendations concerning transfers and the reduction or increase of the wage rates of the men under their supervision 4 Notwithstanding the importance and breadth of these powers, and the respondent's attempt in its brief to distinguish its foremen in this respect from those who were involved in the Packard case,' the undersigned finds, as have the Board' and the Courts ° in eases of super- visors wielding equal authority, that the respondent's foremen are "employees" and, accordingly, that their association in Chapter 136, Foreman's Association 2 During the period involved in this case, the respondent operated an Iron foundry and also a steel foundry. Authority in the operation of each of these foundries was delegated, in the following order of rank: (1) to a plant superintendent; (2) to three departmental superintendents, in charge of the foundry, the cleaning room, and inspection respectively ; (3) to assistant departmental superintendents; (4) to general foremen, and (5) to approximately 100 foremen 3 Although foremen requisition help through the employment office and also from a "labor pool" of surplus workers maintained by the foundry superintendent, they are per- mitted to reject any worker thus supplied. The only limitation upon a foreman's power to discharge is the requirement that, in certain instances, he must first consult with the steward of the CIO union representing the rank-and-file-employees, in accordance with the provisions of that union's contract with the respondent 4 During the war period, a foreman's recommendation of a wage increase was honored unless it violated wage stabilization regulations. ° Packard Motor Car Company, 61 N. L. R. B. 4. and 64 N. L. R. B. 1212. ° See e. g., Packard Motor Car Company, 61 N. L. It. B 4, and 64 N. L. R. B 1212; Soss Manufacturing Company, et al , 56 N L R B 348 ; L A Young Spring & Wire Corporation, 65 N L R B 298, The Midland Steel Products Company, Parish & Bengham Division, 65 1074 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD of America, for the purposes of collective bargaining, constituted that organiza- tion a labor organization within the meaning of the Act. Nor does the evidence support the respondent's contentions that the Foreman's Association of America revoked the charter of Chapter 136 or that, therefore, Chapter 136 ceased being a labor organization before the hearing and before the amended charge of March 8, 1946, was filed in its name On the contrary, the evidence is clearly-to the effect that the charter of Chapter 136 has never been revoked. It is true that William Valiance, one of the national vice presi- dents of fhe Foreman's Association, testified that Chapter 136 has made no contributions to the Foreman's Association since July 1945 and that, therefore, its charter has not been "in effect" since approximately October 1945 because of, a "constitutional provision ... that when a chapter has been delinquent for a period of 3 months or 90 days, the charter is thereby revoked." However, accord- ing to the constitution of the Foreman's Association, which was admitted in evidence, there is no provision for the automatic forfeiture of a chapter's charter but such a result may be accomplished only by the express action of the Executive Board of the Foreman's Association After referring to the constitution, Valiance then testified that the charter of Chapter 136 had not been revoked and that his original testimony had been based upon the incorrect assumption that revocation automatically resulted from delinquency. Furthermore, Donald Diephouse, presi- dent of Chapter 136, testified that he had received no notice of the revocation of the Charter's chapter by the Foreman's Association 8 However, even if the Fore- man's Association of America had revoked the charter of Chapter 136, the Chapter has continued at least a de facto existence as a labor organization of the re- spondent's foremen, with the active support of the Foreman's Association of America. Meetings were held as recently as 3 months before the hearing and since September 1944, the Foreman's Association of America has been in contact with the Chapter's members for the purpose of prosecuting the instant case and thus securing the protection of the Act for the respondent's foremen as members or prospective members of Chapter 136. It is thus clear that the association of those of the respondent's foremen who joined Chapter 136 still constitute a labor organization within the meaning of the Act.' The undersigned finds that Chapter 136, Foreman's Association of America, unaffiliated, is a labor organization admitting to membership employees of the respondent. .N. L. R. B. 697; Federal-Mogul Corporation, 66 N. L R B. 532 ; Kelsey-Hayes Wheel Com- pany, 66 N . L. R. B. 570 ; Fibreboard Products, Inc, 66 N L R. B 626. 'r Jones & Laughlin Steel Corporation v. N. L. R. B., 1,46 F. (2d) 833 (C. C. A. 5), cert. denied 325 U. S. 886; N. L. R. B. v. Skinner and Kennedy Stationery Company, 113 F. (2d) 667 (C. C. A. 8). 8 Counsel for the Board asked Diephouse , "Have you ever received any notice of revoca- tion of the Charter?" The original copy of the official transcript of the hearing, which the Official Reporter furnished to the Board and to the parties , set forth Diephouse's answer to this question as : "I have." Since then, the Official Reporter advised the Board that this was an error in the transcription of his notes taken at the hearing, which showed Diephouse's answer actually to have been : "I have not." On May 3, 1946, the under- signed issued an order directing the parties to show cause why the transcript should not be corrected to conform to the Reporter's notes and on May 8, 1946, the respondent filed its objections to the proposed correction . In substance , the respondent contends , and the undersigned agrees , that a correction in a certified transcript should be made only upon a "strong showing" of error The respondent does not, however, assert a belief, or any basis for a belief, that the witness Diephouse actually gave the answer as set forth in the original copy of the transcript . On the other hand, the correction suggested by the Reporter accords with the recollection of the undersigned and his notes taken at the hearing, as well as with the hearing notes of the Reporter . Upon this basis, no sufficient reason to the contrary appearing in the respondent 's objections, the undersigned hereby orders that the Transcript Clerk of the Board correct the 17th typewritten line on page 180 of the Official Transcript of the hearing herein , to show that the answer of the wit- ness, Donald Diephouse was "I have not" rather than "I have " 8 See Greer Steel Company, 38 N. L. R. B. 65, and cases there cited. i LAKEY FOUNDRY AND MACHINE COMPANY III THE UNFAIR LABOR PR\OTICES A. The fointation of Chapter 136 and incidents prior thereto 1075 While working for the respondent as a moulder in 1939 or 1940, Neal Kruithoff was president of the CIO local which represented the rank and file foundry workers and was one of the negotiators of the original contract between the respondent and the CIO covering these employees. During that time he took 39 applications for membership in the 010 from various foremen and time- keepers and was asked, in substance, what in the world he was trying to do, by Erwin Jones, then secretary of the respondent, and vice president at the time of the hearing.10 In the fall of 1943, after Kruithoff had become a foreman, he and a number of other foremen, according to his testimony, organized "a social group where [they] could get together . . . and could talk over amongst [themselves] as to how [they] could get [their] scrap down." Kruithoff was elected president of this group and informed John 0. Ostergren, the respondent's president and general manager, of their desire to form the club. According to Kruithoff, he told Ostergren that his group wanted to form the club "more for a social club . . to get together every now and then to try and have our, scrap brought clown," to which Ostergren replied, "it may be a very good idea. Why don't you write up a little agreement and if there is any grievances against any superintendent up there, we, surely would like to know about them." Ostergren admitted that Kruithoff told him "I would like to have a foremen's club . . . I believe it would be beneficial to the company and to the foremen. It would be very educational to a lot of us. There are things that I don't know about the foundry business. For instance, the core room We can have possibly speakers come in here and a few other people that might advise us and help us." Ostergren further admitted that he then said "Neal, give us an outline of what you have in mind." The undersigned credits the testimony of Kruithoff as to the substance of this conversation and finds specif- ically that Ostergren sugested that the foremen's club might present grievances against the superintendents." Thereupon, several of the foremen prepared a statement of the club's purposes, including a provision that a representative of management should attend the club's ineetings "so that they would know what was going on." Kruithoff testi- fied that this statement was delivered to Ostergren for his approving signature either by Foreman Tice or by Foreman Bouchard. Kruithoff further testified that he asked Ostergren a few days later whether the latter had read the out- line and that Ostergren said, "yes . . . I am very busy and I don't think I will con- sider it because it is too damn much like the CIO " In his testimony, Ostergren admitted having asked Kruithoff for a written outline of the club's purposes but denied ever having received it or having told Kruithoff that the proposed club was "too damn much like the CIO." The undersigned credits the testimony of Kruithoff that Ostergren admitted receiving the outline of the purposes of the foremen's club and that Ostergren told Kruithoff it was "too damn much like the CIO." According to the Board's witnesses, the respondent's knowledge of, and displeas- ure with, Kruithoff's participation in the foremen's club were further reflected in an incident which occurred a few months later, in December 1943. Kruithoff said Foreman Donald Diephouse testified that at a scrap meeting attended by them and other foremen from Division B of Foundry No. 3 Plant Superintendent 10 This finding is based upon Kruithoff's uncontradicted testimony 11 The undersigned finds the testimony of Ostergren to be generally unreliable for reasons which will hereinafter more fully appear in the discussion of Diephouse's demotion. 712344-47-vol. 70-69 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Evans singled out Kruithoff for criticism, first for scrap on a carburetor job, which Kruithoff said was not his job, and then for 10 pieces of scrap on a 1100-piece Buick job. 'According to Kruithoff's and Diephouse's testimony Evans told Kruithoff in the ensuing argument before the other foremen, that he had the "wrong attitude" and, after denying Kruithoff's suggestion that this statement was prompted by Kruithoff's presidency of the foremen's club, stated that "he didn't think it was right" for Kruithoff to bring in "men from Detroit to organize the foremen." Evans denied that he made this last statement to Kruithoff and, in the course of his testimony, attempted to show that Kruithofi's and Diephouse's testimony in this respect was based upon their misquotation or misconstruction of certain proper remarks which Evans occasionally makes in criticizing the performance of his foremen. To this end, Evans testified that a few months before Kruithoff's discharge on September: 27, 1944, Kruithoff spoke to him a number of times about organizing a social group for the foremen at which they could "talk over scrap and the possibility of improvement of performance." According to Evans, another supervisors' club's had at that time already been in existence for "a number of months" and, with the approval of, and at some expense to the re- spondent, had held supper meetings which were addressed on foundry practices by speakers brought in from Detroit and other places. That this supervisors' club had been in existence since approxiritately January 1944, as Evans thus testified, is undisputed ; and that it did not begin to function until 1944 is also ap- parent, for Diephouse testified without contradiction that he attended the first of its meetings in January, 1944, and, according to Ostergren's testimony, Ostergren had become interested as late as the fall of 1943 in Kruithoff's proposal that the projected foremen's club might be addressed by speakers on foundry subjects-which is unlikely if the supervisors' club was already performing the same educational function. Against this background, Evans testified on direct examination that, in criticizing Kruilhoff's performance a few weeks before Kruithoff's discharge on September 27, 1944, at a meeting also attended by Foreman Diephouse, Hoffman, and Crakes he told Kruithoff he had "the wrong attitude" and that bringing in "the people from Detroit" had served no purpose since there had been no improvement in the foremen's work On cross-examina- tion, Evans further testified that he made this latter statement "a number of times" and that he thought be made it in December 1943 He explained, how- ever, that the remark was clearly directed to what he considered the uselessness of the practice of the supervisors' club in bringing in educational speakers and not to the formation of the foremen's club. This explanation is obviously unsatisfactory so far as any such remark in 1943 is concerned. For, as already noted, the supervisors' club had apparently not begun to function at that time. Thus, even on the basis of Evans' testimony, his admitted reference to "people from Detroit" in 1943 was obviously not the innocent statement which be says it was, but rather a pointed reference to, and criticism of, Kruithoff's formation of the foremen's club, as both Kruithoff and Diephouse assert it was. The undersigned, therefore, credits the testimony of Kruithoff and Diephouse that in December 1943 Evans unjustifiably criticized Kruithoff in the presence of his fellow foremen for poor performance, and with obvious reference to Kruithoff's formation of the foremen's club, told him that it was not right for him "to bring in men from Detroit to organize the foremen." '2 Although Evans and the other witnesses spoke of this club as a "foremen's club," it also embraced the superintendents and, for the purpose of distinguishing it from the "foremen's club" organized by Kruithoff's group, it will be referred to in this report as "the supervisors' club." LAKEY FOUNDRY AND MACHINE COMPANY 1077 According to Kruithofi, he first learned of the Foremen's Association of America from newspaper articles in the spring of 1944. At that time a number of the respondent's foremen also became interested in the possibility of their joining this organization and urged Kruithoff to obtain the necessary information. During his vacation in July 1944, Kruithoff visited the national headquarters of the Foremen's Association of America in Detroit and upon his return, in July or August, placed some of its literature on the table in the foremen's room at the foundry In discussions which followed, Kruithoff became known among the foremen as the leader of the movement to organize them in the ranks of the Foremen's Association of America. On September 27, 1944, Kruithoff gave Diep- house forms of application for membership in that organization with the under- standing that Diephouse was to secure signatures and dues payments from those foremen who were interested On that very day 18 foremen signed and delivered membership applications and paid their dues to Diephouse at the foundry. The group immediately applied to the Foremen's Association of America for a charter as one of its chapters. B. The discharge of Neal Kruathoff Neal Kruithoff, who thus initiated the organization of Chapter 136, was inter- mittently employed by the respondent as a moulder between December 1935 and October 1941, and was thereafter continuously employed by the respondent from June 1, 1942, until his discharge on September 27, 1944. In this last period of con- tinuous employment, Kruithoff worked as a gray-iron moulder in Division B of Foundry No. 3 and then as a steel moulder in Foundry No. 5 until November 9, 1942.13 From that date until his discharge, except for about a week in April, 1943,14 he served as foreman of the squeezer mould department of Division B in Foundry No. 3, with supervision of approximately 14 men, the only squeezer moulders in the entire foundry. As foreman, Kruitloff was paid a daily wage and worked under Plant Superintendent Earl Evans and his assistant, Foundry Superintendent Gordon Robidoux, whose jurisdiction embraced both Divisions A and B. Like the, other foremen, as well as the superintendents and certain non- production supervisors, Kruithoff was also paid a monthly bonus if the monthly scrap of the entire foundry, considered as a unit including all the departments of both Divisions A and B, was 12 percent or less The amount of the bonus fund, which was distributable in shares among the supervision, was a scaled percentage of the month's sales, which percentage increased as the foundry's scrap percentage decreased. At the end of the afternoon of Septeniber.27, 1944, the day on which Kruithoff and Diephouse succeeded in securing the signed applications of 18 of the foremen for membership in the Foreman's Association of America, Kruithoff was called into the office to see Foundry Superintendent Robidou^: and Plant Superintendent Evans who told him that his scrap percentage was too high and that he was therefore discharged. Neither Evans nor Robidoux could recall charging Kruit- hoff with any specific scrap percentage. Evans,could not recall Kruithoff's stat- 11 During Kruithoff's employment until 1941, the respondent operated both Foundry No 3 and Foundry No. 5 as gray-iron foundries and Kruithoff worked in Foundry No. 5. Before Kruithoff returned to work in 1942, Foundry No. 5 had been converted to steel and Foundry No. 3, retaining its original staff and equipment as "Division A," had gener- ally absorbed the gray-iron staff and equipment of what had been Foundry No. 5, as "Division B " 14 At his own requests, Kruithoff was first transferred on April 19, 1943 to his former job as steel moulder in Foundry No 5 and then , about a week later, was returned to his job as squeezer moulder foreman. 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing what he thought his percentage actually was, although Robidoux testified that be thought Kruithoff had made some remark about his percentage. Kruithoff, on the other hand, testified that Evans asserted his scrap amounted to 18 percent whereupon he disagreed with him, stating that he knew what his scrap percentage was. According to Kruithoff, his scrap amounted only to 4 50 percent for September- a fact which he ascertained from the daily scrap records available to all fore-- men n He also testified that prior to Evans' unjustified criticism of his work in December 1943, which has already been discussed, Evans had complimented him at different times on his low scrap and his practice of checking his scrap, and that after the 1943 criticism, he was not individually criticized by any of his superiors, although sometime prior to his discharge he was told by Robidoux not to leave his squeezer floors to get patterns. In this connection he testified without con- tradiction that only the day before his discharge he had told this to Holum, Divi- sion B superintendent, when Holum wanted him to continue going after his pat- terns and that Holum had sent him to Robidoux who confirmed his instructions not to leave the squeezer floors. Kruithoff further testified that at the time of his discharge, the respondent needed men ; that it was hiring and still advertising for help ; and that, as a matter of fact, there was a moulder's job vacant in his department but that although at the time of his discharge, he asked Evans, Robidoux, and Kramer for a rank-and-file job, he was told there was no job available. In answer to Kruithoff's testimony, both Evans and Robidoux testified that Kruithoff's scrap record for September 1944 was 13.2 percent and the highest in the foundry. Robidoux, in explaining the background of Kruithoff's discharge, - further testified that during the preceding 3 months he spoke a number of times to Kruithoff about the latter's high percentage'of scrap on occasions when he was unable to find Kruithoff at his squeezer-mould floors ; that upon Kruithoff's explanation that he was chasing patterns, he told Kruithoff to stay in his depart- ment and to leave the pattern chasing to men hired for that purpose; that he also told Kruithoff he could depend upon his help and that of his other superiors to bring his scrap down ; that eventually he told Kruithoff he would be discharged if his scrap record did not improve in 30 days ; and that when no improvement was discernible by September 27, 1944, he discharged Kruithoff even though it was not the end of the pay period-a procedure which he stated was customary., According to Evans and Robidoux, the squeezer mould scrap was reduced under the foreman who succeeded Kruithoff. Finally, although Evans admitted that labor was scarce during the war, that inexperienced Jamaican labor was procured in 1943, and that the respondent needed foremen in the fall of 1944, Robidoux denied that there was a job open in Kruithoff's department at the time of his discharge ; Kramer denied that Kruithoff asked him for a job; and Evans testi- fied that 20 foremen in addition to Kruithoff were discharged during 1944 for poor performance, including 4 in August, 2 in September, 1 in October, and 5 in November. In resolving this conflict of testimony between Kruithoff and the respondent's witnesses, several observations should be made concerning the setting in which Kruithoff's discharge occurred. As has already been noted, the respondent 35 These records showed the total number of each type of casting produced and also the number of scrap castings in each of these types classified according to the nature of the defect, thus affording a ready computation of the percentage which was scrap Kruithoff testified that while his own scrap average was only 4.56 percent, the over-all scrap per- centage on his squeezer mould castings was 6 7 percent , responsibility for the difference being attributable to other departments which made and handled the cores and cleaned the castings LAKEY FOUNDRY AND MACHINE COMPANY 1079 knew of two previous attempts by Kruithoff to organize the foremen and at least on the second occasion had voiced its disapproval. Evans had demonstrated his opposition to any such attempt by his remark in December, 1943, that Kruithoff had no right to bring in men from Detroit to organize the foremen. And, as the undersigned hereinafter finds, Evans, Robidoux, and Kramer, as well as President Ostergren, were later to show even more forceful opposition to the organization of the foremen in the Foreman's Association of America and their knowledge of its progress and its leaders, in their demotion of Diephouse and threatening to demote or discharge the three other officers of the Union the very day after their election in November. These facts, when taken in conjunc- tion with the fact that Kruithoff was discharged on the same day he and Diep- house had successfully begun their campaign for union membership in the foundry, strongly indicate that the respondent discharged Kruithoff because of his known attempts to organize the foremen, and thus support his testimony that the reason for his discharge was not a high scrap record. When viewed in the.light of these considerations, the testimony given by the respondent's witnesses in explanation of Kruithoff's discharge is not persuasive Indeed, their testimony concerning Kruithoff's scrap rate of 13.2 percent as the highest in the foundry for the month of September, 1944, is intrinsically un- reliable In this connection, Evans testified that each day the respondent com- puted the scrap percentage on production for the preceding 6 working days, and that the respondent's records showed that during the month of September, 1944, the highest 6 day average in Division B was 11 percent, and the lowest was 7 percent He did not, however, give any over-all percentage for this division during the month, although it might perhaps be assumed, if his testimony were credible, that it was between 7 percent and 11 percent. Evans further testified that the scrap in Division B was higher than in Division A ; that the scrap of Kruithoff's squeezer molders in Division B was higher than the average scrap of the other 3 foundry foremen in Division B ; that the foundry's general scrap percentage offset Kruithoff's high percentage sufficiently to bring the foundry average below 12 percent and thus to earn the bonus; but that a num- ber of other foremen, none of whom were named, had complained that Kruithoff's high scrap was preventing their earning a greater bonus. At one point in his testimony, Evans stated that "there might have been jobs that were as high" as Kruithoff's in scrap percentage. He then immediately qualified this testimony first by saying that he thought Kruithoff's percentage was higher than any other foreman's and then by stating flatly "from the record" that it was higher. He admitted, however, that he had no such "record" with him and that, while he had computed Kruithoff's individual scrap. percentage, he had not computed the in- dividual scrap percentages of the other foremen. When counsel for the Board and the undersigned suggested that the respondent supply the figures basic to the assertedly unfavorable comparisons of Kruithoff's September scrap record with that of the other foundry foremen, and with that of the Division, Evans said it would take 3 or 4 days. Neither he nor any of the respondent's other witnesses offered to do so during the remaining 2 days of the hearing Nor did the re- spondent ever give specific information from its records or through their pro- duction, to explain the basis for its alleged comparison of Kruithoff's and the other foremen's individual scrap percentages which assertedly caused Kruithoff's discharge, although such an explanation was made necessary to the substantia- tion of its position by Evans' testimony that the other foremen's individual percentages were never actually computed and his apparent uncertainty as to whether any was higher than that of Kruithoff. - Evans' testimony thus leaves doubt as to the actual percentage of Kruithoff's scrap and its comparison with that of the other foremen, and thereby fails to 11 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD establish the broad reason given by the respondent for Kruithoff s discharge. Robidoux's testimony, too, is not persuasive as to the facts in this respect nor as to the events preceding and leading to Kruithoff's discharge. His testimony concerning the percentage of Kruithoff's scrap is no more satisfactory than Evans' testimony. Furthermore, comparison of Robidoux's testimony concern- ing his frequent criticism of Kruithoff for high scrap and for leaving his de- partment with Kruithoff's testimony as to his low scrap and the absence of, criticism prior to his discharge, leads the undersigned to credit Kruithoff's testimony. In this connection it should be noted that Robidoux's testimony concerning his frequent criticism of-Kruithoff was diluted by his admission that he criticised every one of his foremen, while his testimony that he gave Kruithoff a 30-day notice is met by Kruithoff's credible testimony that he was not in- dividually criticised between December 1943 and the date of his discharge Finally, the implication in Robidoux's testimony that Kruithoff's scrap con- tinned to be high until his discharge because of his disobedience of instruc- tions not to leave his department to chase patterns. is disposed of by Robidoux's failure to deny Kruithoff's testimony that only, the day before the discharge, Robidoux was informed by Di`ision Superintendent Holum that Kruithoff had refused to leave his floor for that purpose in spite of Holum's insistence Nor is Evans' testimony concerning the discharge of 20 other formen for poor performance during 1944 of any significance under the circumstances shown by the record. In the first place, after bluntly ascribing these discharges to poor performance, Evans' later testimony indicated that he was not sure just how many were discharged on that ground. Then, too, it was not shown that Kruit- hoff's performance was as poor as any of these dischargees. As the record 'stands, therefore, not only was the respondent's testimony unreliable as to Kruit- hoff's allegedly high percentage of scrap, but, the credible evidence does show that he was discharged when the respondent needed foremen. Furthermore, although Evans and Robidoux testified that Kruithoff's successor brought the squeezer scrap down, Robidoux admitted that this did not occur immediately and that the first substitute for Kruithoff, a Walter Nelski, who was promoted from: a rank and file job as a machine moulder, was himself discharged-after an approximately 60-day trial. Finally, notwithstanding Kramer's denial, the undersigned credits Kruithoff's testimony that Evans, Robidoux, and Kramer refused to give him a rank and file job. Even were there no squeezer-moulder job open at the time, there is no explanation of why Kruithoff, who had 21 years of experience as a moulder, was not given the rank and file job made available by Nelski's promotion " Upon Kruithoff's credible testimony, therefore, and also in view of the re- spondent's virulent opposition to the organization of its foreman (which is hereinafter discussed in greater detail) in which Kruithoff was specifically at- tacked by respondent's officials as all objectionable ringleader of the organi- zational movement of the Foreman's Association, the undersigned finds that the respondent discharged Kruithoff on September 27, 1944, and refused to give him a rank and file job, because of his known' eflorts to organize the foremen as members of the Foreman's Association of America, thereby discriminating against him in regard to his hire and tenure of employment and discouraging membership in a labor organization contrary to Section 8 (3) of the Act. 16 The respondent 's subsequent demotion of Diephouse, which is hereinafter discussed, indicates that the respondent has no policy against demoting a foreman and continuing his employment in a rank and file fob. As already noted the respondent was admittedly experiencing difficulty in filling rank and file jobs at the time LAKEY FOUNDRY AND MACHINE COMPANY 1081 C. The demotion of Donald Diephouse; interference, restraint, and coercion Donald Diephouse has worked continuously at the respondent's foundry since June 1936, when he was hired by the respondent as a laborer. From 1937 to 1941, he drove the respondent's refuse sand inside and outside the foundry, in a truck which the respondent rented for the purpose.17 In January 1941, he was made a core checker in Foundry No. 5 and, in June 1942, was transferred to Foundry No. 3 to assist the foreman in charge of the core filers and core carriers. Within the next year he was made a foreman of the core scheduling department in Division B and also of a newly formed department for filing and cleaning small cores for the same Division. In this job he was given a schedule of the Division's demands for cores the following week, ordered the cores from the core-making department, and then supervised their cleaning and filing, and their prompt delivery to the foundry by the core carriers in accordance with the schedule. Diephouse remained in this job as foreman, with supervision over 13 to 16 people, until his demotion on November 7, 1944. Since then he has worked for the respondent as a scrap-checker. On October 19, 1944, the Foreman's Association of America issued a charter to Chapter 136 and on November 2, 1944, Diephouse was elected president of the Chapter. The other officers also elected by the Chapter at this time were: Knute Johnson, as vice president ; Charles Crakes, as recording secretary ; Oscar Hoffman, as financial secretary and treasurer ; and Neal Kruithoff, as member- ship director. Crakes and Hoffman, like Diephouse, were foremen in Division B of Foundry No. 3; Johnson was a foundry foreman in Division A. At 4 p. m. on November 3, 1944, the day following their election, Diephouse, Johnson, Crakes, and Hoffman were called into a conference with Ostergren, Kramer (whose position was that of an Assistant to Management in charge of labor relations), and Plant Superintendent Evans. No other foremen were present. The following excerpts from the direct testimony of Diephouse, who stated he had made detailed notes of this and a subsequent conference on November 6 at or about the time the conferences occurred, clearly set forth his version of the conversation which followed: 's He [Evans] said, "Well, fellows, we have called you down here tonight to see what could be done about this thing that is going on around here . . . You must have something on your minds . . . or you wouldn't be joining a thing like this " Mr Ostergren said, "Yes, fellows, . . . this is the place to do business with us . . . Right here, not up the street . . . The fact is, fellows, we are not going to, we don't have to recognize this outfit. We are not going to recognize it . . . so, you might just as well forget about it and do business with us, men to men." . . . He [Ostergren] said he didn't know what bene- fits we could expect to get from this thing. 17 Diephouse testified that, as a truck driver for these 4 years, he remained on the respondent's pay roll and that, although his driving was supervised by the owner of the truck, his work in the respondent's foundry yard was supervised by the respondent. The undersigned finds it unnecessary to decide whether, during this period, Diephouse was technically employed by the truck-owner, as the respondent contended at the hearing. 7s The paragraphing of Diephouse's testimony as it appears in the transcript has been somewhat changed and bracketed explanatory insertions have been added by the under- signed,-in both cases to permit easier reading. A small amount of repetitious and other material (which is consistent with. but does not add to, the testimony quoted) and also the comparatively few questions and colloquies of counsel and the undersigned have been omitted as indicated. Otherwise, the actual language used by Diephouse and shown by the transcript has been exactly reproduced. 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. Then Mr. Evans said that he couldn't figure either what benefits we could expect to get from it. He said that we had been overpowered by some high- pressured salesman from Detroit ; that they were just taking the money out of our pockets to live a comfortable life for themselves. I said, "Well, I thought that something like this would make the fore- men more cooperative with one another" . . . I said that speaking of bene- fits I thought that possibly departmental seniority could be worked out .. . I told them that I did not think that Mr. Robidoux would [discharge capable foremen with long service], nor did I think that Mr. Evans would do it, but I knew that it had happened. Mr. Ostergren asked me ... "How many times has that happened here?" . I said, "I didn't say that it has ever happened here, but it has happened in other places." Mr. Evans said, "You are not` working some other place, you are working for the Lakey Foundry." Then Mr. Ostergren said, "Well, -! Diephouse, . . . I never heard such a cock and bull story in all my life . . . You haven't got a leg to stand on with that sort of crap . . . If that is what you have got in the back of your head, . . . why in hell don't you take a release and get out of here?" He also said that I should go see my Detroit friends and that they might possibly have a job for me. Also that I could tell Kruithoff to peddle his bull-some place else, not there. Mr. Evans . . . asked if we couldn't do our own thinking. He says, ". . : I would be ashamed . . . to let anybody know that I joined an outfit like this." Mr. Ostergren . . . asked me then if I had ever read the law on this thing. He says, "We know what the law is and we are going to follow the law . . . The law says that we don't have to recognize it, and we are not going to recognize it." He [Ostergren] says, "Crakes, . . . what about you?" Charlie [Crakes] asked him . . "May I ask why you picked on us four?" Mr. Ostergren replied that we four were the instrumental ones of the bunch. Mr. Evans said that you can't keep anything like this a secret. He says, "Fellows are coming into my office every day telling me that they didn't want anything to do with it and that they just joined up because some of them had the pressure put on them." He [Evans] said if there was something we wanted, "Let's have it this is the place to do our bargaining, right here . . . maybe we can make a bargain with you." Mr. Ostergren told Charlie [Crakes] that he wanted him to stay away from the boys in the steel foundry. Charlie says, "I haven't been near the steel foundry." He [Ostergren] says "Well, what were you doing, talking to the fellow up the street at the noon hour?" Then Mr. Kramer said that he would like to relate the law on this thing. He said that he had it upstairs on his desk . . . then he related parts of the Maryland Drydock case.10 _ Mr. Evans said that he was surprised that Oscar, meaning Oscar Hoffman, he said that he took him from the rank and file . . . He [Evans] says, "Now, this is the thanks I get for it" Mr. Ostergren said, "Knute [Johnson] . . . I am sort of surprised at you . . . you, in my mind, . . . were the best foundry foreman that we 10 The reference is apparently to The Maryland Drydock Company, 49 N L R B 733; see however, the Board's decision in Soss Manufacturing Company, at al., 56 N. L R B 348, which was issued on May 8, 1944, about 6 months before this incident. LAKEY FOUNDRY AND MACHINE COMPANY 1083 ever had ..." and he [Ostergren] said that he had in mind ... promo- tions for him but he was very much surprised to learn that a few days previous [Johnson] had wanted a transfer. He [Ostergren] said, ". . . just what is your trouble?" Knute said, "Well, like that 74001 [a job also referred to as the Hercules job] that he was running that clay, it just about drove him nuts . . . He [Johnson] said, "The cores on the 74001 were terrible." . . . Me said that first he would go to one foreman and then to another foreman . . . and finally he would get to the core room superintendent before he got any results. He [Johnson] said, "Is that cooperation?" Mr. Ostergren said, "Well, will this damn thing make your cores any bet- ter?" ... Mr. Evans then said, "Well can't you fellows see that this thing is out on a limb?" Mr. Evans asked me . . . "Well, what do you think, Don? Don't you think . . . you had better forget about this thing?" Mr Ostergren spoke then, ... "... Diephouse, you appear . . . to be a two fisted smart young fellow, . . . and from what I understand, you have been going places since you have been here . . . there are plenty of chances . . . for advancement here . . . if you want to work for them, but . . . you will never get them through this damn outfit" Then Mr. Evans asked me again ... "What do you say?" I said, "Well I figure on holding my job through my merits." I said that I would give them 100 percent of my time and ability on my job while I was at the plant. Mr. Evans says, "That isn't answering my question " Then [Evans] says, "How about you Crakes?" Charlie says, "Well, I will do the best I can." Mr. Ostergren said, "The best you can is not good enough . . . If everybody felt that way, we would still be riding in Henry Ford's old model T's." Mr. Kramer then said that he thought that we had been carried away by some high pressure salesmanship and wondered if it wouldn't be wise to let us go back in the foundry and talk to the other boys and tell them what they had told us and give us a chance to change our mind and come back . . . at a later date and give them an answer then. Mr. Evans said, "All right . . . let us make it Monday night [November 6] at 3:30. . . On Monday afternoon, November 6, the four foremen returned and again con- ferred with Ostergren, Kramer, and Evans in Kramer's office. According to Diephouse, Evans said, "Fellows, we might as well get started. We told you the other night what we were going to do about this. You were supposed to have your answer tonight" ; and Ostergren added, "Yes, we want to play ball with you but we told you the other night that you can't play ball with that side and us, too." Diephouse and Johnson testified that Evans then asked each of the four foremen whether he was "going to go with us" or with the Foreman's Association, and that during the conversation, Kramer read parts of the Maryland Drydock decision with the comment, "You see, they just haven't got the law behind them." . According to Diephouse, he and Crakes stated, in effect, that they would give the respondent their full time at work but that their evenings and their connection with the Foreman's Association were their own business ; whereupon Evans and Ostergren said that the respondent had "no place" for them in supervision and said they would be released. Hoffman, however, according to Diephouse, said "I will stay with the Company" and acquiesced to Evans' question, "By that I take it you will drop out of the Association and not attend any more meetings?" Johnson, according to his testimony and that of Diephouse, countered Evans' question by stating that if his services were satisfactory, the respondent would have to decide, to which Ostergren said he would vouch for Johnson, adding 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "I think that Johnson [will] go out and do his work like he always did and devote his time to his work." The meeting ended, according to Diephouse, with in- structions from Evans that Diephouse and Crakes report to him the next morning. After the foremen left Kramer's office, Crakes remained or returned alone. According to Kramer, Crakes asked him for aid in pressing his application for automobile tires before the rationing board which met that night. Crakes did not testify nor was anyone other than he and Kramer present at this short conver- sation. In any event, unlike Diephouse, he withdrew from membership in the Foreman's Association and was not demoted. Diephouse, however, was told the next morning by Evans in Kramer's presence that he might choose any rank-and- file job and accordingly selected that of scrap-checker. In most respects, the testimony of the respondent's witnesses concerning Diephouse's demotion was diametrically opposed to that of Diephouse and John- son. According to a composite of the testimony of Evans, Ostergren, and Kramer, the four foremen were called into the meeting of November 3 because of their particularly high, current scrap records and inefficiency ; Diephouse was accord- ingly criticized at these meetings for hold-ups; Hoffman was criticized severely because of his high scrap record; Crakes was criticized for having twice the amount of scrap he should have had ; Johnson was criticized for scrap on the Hercules job; and all four of the foremen were told that higher supervision would assist them and they were not to leave their departments to go for cores or to get help in case of trouble. According to their further testimony, Evans also told the four foremen at the November 3 meeting, that they would have to do better or be replaced and then arranged another meeting for November 6 to give them a chance to think about whether they `"could do a better job and would try." Evans testified that none of the foremen made any promise of better per- formance at the November 3 meeting. According to Ostergren, however, Hoff-' man and Crakes assured the respondent's officials at this first meeting that they would improve their work. As to the meeting on November 6, the respondent's witnesses testified that Diep- house, Crakes, Hoffman, and Johnson were each asked again whether they were going to do a better job; that Hoffman and Crakes, after complaining about core hold-ups, said they would do so; that Johnson reminded them he had always done a good job, to which Ostergren agreed ; that Diephouse said he was doing the best be could do; and that Diephouse was therefore demoted In direct contradiction of the version of the November conferences given by the Board's witnesses, the respondent's witnesses denied that there had been any mention of the Foremen's Association of America or the Maryland Drydock decision. Evans specifically denied that the question addressed by him to the four foremen was whether they would withdraw from the Foreman's Association ; that he had made any of the statements disparaging or criticizing that organization or suggesting that Diephouse get a job from Kruithoff or "the Detroit men" which were attributed to him by the Board's witnesses ; or, in fact, that he had ever talked about the Foreman's Association. While Evans and Kramer testified that Kramer had read something from a book during the conference of November 6, both denied that it was the Maryland Drydock decision : and Ostergren, in his testimony on the point, stated merely that he did not know what was being read. Kramer, in his testimony, explained that the foremen complained that, on the basis of seniority, they would be entitled to higher bonus-paying jobs in Foundry No. 5 (the steel foundry), and Kramer, therefore, thumbed through some labor manual on his desk to point out that foremen were never accorded seniority rights. LAKEY FOUNDRY AND MACHINE COMPANY 1085 In the opinion of the undersigned, the testimony of the respondent's witnesses does not satisfactorily explain the November meetings with the four foremen nor Diephouse's demotion. That these four foremen were called in for criticism the day after they had been elected officers of the Union, and that one of them was subsequently demoted appears clearly to have been more than a coincidence. Evans testified that they happened to be the ones with the worst current perform- ance records and that he told them so at the meeting on November 3. When it was pointed out to him that, according to his own testimony, five other foremen were discharged in November for poor performance, he first explained their not being called into the November 3 meeting on the ground that they were not in Division B of Foundry No. 3 as were the officials of the Union,R0 but then, in his following answer, he admitted that neither was Johnson in Division B. His next explanation was that the other foremen had already been discharged earlier in the month. But this explanation is also unsatisfactory since he could not recall on what date these foremen had been discharged and therefore was unable to state definitely that the discharges in question had taken place before the third of the month. Nor were the respondent's witnesses convincing in their testimony that Johnson had been called in with the other three foremen for the purpose of receiving a discharge ultimatum based upon his poor performance. For Johnson was admittedly one of the best foremen who had only recently had a considerable amount of scrap on but a single job" and, according to Evans, criticism was leveled against him in the meetings, only when Johnson himself spoke of his difficulties in handling the particular job. Furthermore, if, as Ostergren testified, Crakes and Hoffman had agreed at the meeting of November 3 to improve their work, there was clearly no reason, so far as the record shows, for the respondent's recalling them on November 6 to repeat their assurances other than to continue pressure on all the union officers. Finally, the credibility of Diephouse's testimony concerning his demotion and the substance of the November meetings, is strongly supported by evidence of subsequent statements made to him by Evans, Kramer, and Foundry Superin- tendent Robidoux which leave no doubt as to the reason for Diephouse' s demo- tion. According to Diephouse's testimony, when he reported to Evans on November 7, 1944, and accepted Evans' offer of a rank-and-file job as a scrap- checker, Kramer remarked in Evans' presence that Diephouse alone was re- sponsible for his demotion and that, if after a month, "his mind clarifies itself," there should be no reason why Evans should not return him to his supervisory job, to which Evans agreed. Diephouse also testified 'that he asked Kramer whether he meant that Diephouse's work had been slipping and that Kramer's reply was, "Yes, I say that for this reason, you couldn't possibly have been putting one hundred per cent of your time and ability to your job with some- thing like this on your mind at the same time " Evans' and Kramer's version of their conversation with Diephouse on this occasion was that they gave Diephouse the rank-and-file job for which he asked and that Kramer may have said that Diephouse's work had slipped and that he had not devoted 100 percent of his time to his job. Neither Evans nor Kramer gave any testimony as to whether the latter, Kramer, told Diephouse he might expect to be rein- stated as a foreman if his mind "clarified." Diephouse further testified with- out contradiction, however, concerning certain other significant remarks in similar vein made to him by Foundry Superintendent Robidoux a week later and again in December 1944, when Diephouse was at work as a scrap-checker. 20 According to the respondent's witnesses , meetings of foremen for the purpose of discussing high scrap and hold-ups were usually held with all available foremen from one but not both divisions present. 21 There was no testimony as to the extent of this scrap. 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the first instance, Robidoux asked Diephouse when he was "going to cut out [his] foolishness and go back to work on,his foreman's job." In December Robidoux asked Diephouse when he was "going back to work" ; Diephouse replied that he was working ; and Robidoux retorted : "You know what I mean. I mean back in here. We don't need you out on that scrap pile any more than a cat needs two tails." Upon Diephouse's asking Robidoux, "You can't condemn men for standing up for their constitutional rights, can you?" Robidoux said "those laws" were made by a "bunch" of senators and continued : "You just let Kruithoff pump your head full of this stuff." To this, Diephose stated that he believed in organization and had unsuccessfully applied for C. I. O. membership on two occasions. Robidoux then ended the conversation with the comment, "Well, I can see there is no F ense in talking with you. You are just as bull headed as some of those senators we have got in Washington." Robi- tloux, when called as a witness, gave no testimony concerning these remarks. The undersigned credits Diephouse's testimony, as to the remarks made by Robidoux in November and December 1944 and also as to the statements made to him by Evans and Kramer on November 7, 1944. Upon consideration of all the evidence, the undersigned credits the testimony of Diephouse, and finds that on November 3 and November 6, 1944, the respond- ent's officials, Evans, Ostergren and Kramer, knew that Diephouse, Crakes, Hoff- man, and Johnson had just been elected officers of the Union,' and attempted to coerce their withdrawal from the Union and their cessation of organizational activities. The undersigned further finds, upon the basis of Diephouse's credible testimony, that Diephouse was demoted because he refused to withdraw from the Union and that thereafter Evans, Kramer, and Robidoux, upon promises of reinstatement, continued their attempts to coerce Diephouse's abandonment of his union affiliation and support. The undersigned is also of the opinion, and finds, that Evans unjustly criticized Kruithoff's work in December 1943 and told Kruit- hoff it was not right to bring in "men from Detroit to organize the foremen," all for the purpose of restraining what he then believed were efforts on the part of Kruithoff to organize the respondent's foremen with outside help. The under- signed therefore concludes (1) that by all these acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act, and (2) that, by demoting Donald Diephouse on November 7, 1944, because of his refusal to withdraw from the Union, the respondent discriminated in regard to his hire and tenure of employment and the terms and conditions of,his employment thereby discouraging membership in a labor organization in violation of Section 8 (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 obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in unfair labor prac- tices within the meaning of Section 8 (1) and (3) of the Act, the undersigned will 22See the excerpts from Diephouse's testimony which are set forth in the text above. According to his credible testimony, (1) Evans stated to the foremen that the respondent was fully informed about the foreman's organization, and (2) that Ostergren said that these four particular foremen had been called in because they were "the instrumental ones." LAKEY FOUNDRY AND MACHINE COMPANY 1087 recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. The unfair labor practices found by the undersigned represent an attempt by the respondent to defeat self-organization among its supervisory employees by a course of unlawful conduct based upon discrimination which "goes to the very heart of the Act," 28 and constitutes the grossest form of violation of the rights guaranteed by Section 7, and generally protected by Section 8 (1) of the Act. That an employer has deliberately resorted to discrimination, as has the respondent in the present case, indicates not merely his disposition to commit similar acts of discrimination in the future but also (1) his broader and basic "attitude of opposition to the purposes of the Act to protect the rights of em- ployees generally," 24 and (2) the consequent likelihood of his resorting to the lesser acts of interference, restraint, and coercion with these rights as guaranteed by Section 7 and protected by Section 8 (1) of the Act .2' The preventive purposes of the Act will be thwarted unless the Board's order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent industrial strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act, the undersigned will recommend that the respondent cease and desist from in any manner infringing upon the rights of its supervisory employees guaranteed in Section 7 of the Act. The undersigned has found that by discharging Neal Kruithoff and by demot- ing Donald Diephouse, the respondent discriminated in regard to their hire and tenure of employment and the terms and conditions of their employment, thereby discouraging membership in the Union. It will be recommended that the re- spondent offer Neal Kruithoff and Donald Diephouse immediate and full rein- statement to their former or substantially equivalent positions,26 without prejudice to their seniority or other rights and privileges, and that the respondent also make them whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to that which lie normally would have earned as wages from the date of the respondent's discrimination against him to the date of the offer of reinstate- ment, less his net earnings,27 during that period. Upon the basis of the above findings of fact, the undersigned makes the fol- lowing : CONCUSIONS OF LAW 1. Chapter 136, Foreman's Association of America, unaffiliated, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to hire, tenure of employment, and terms or conditions of employment of Neal Kruithoff and Donald Diephouse, and thereby discouraging membership in Chapter 136, Foreman's Association of America, un- affiliated, the respondent has engaged in, and is engaging-in unfair labor practices within the meaning of Section 8 (3) of the Act. 21 N. L. R. B. v. Entwistle Manufacturing Co., 120 F. (2d) 532, 536 (C. C. A. 4). See, also N. L. R. B. v. Automotive Maintenance Machinery Co., 116 F. (2d) 350, 353 (C. C. A. 7). 24 May Department Stores Company v. N. L. R. B. , 326 U S. 376. 25 See N L R. B v. Express Publishing Company, 312 U. S. 426, 427 21 See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 651N. L It. B. 827. • \ 27 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 the unlawful discrimination against him and the consequent necessity of his seeking employment else- where. See Crossett Lumber Company, 8 N. L. R. B. 440 Monies received for work per. formed upon Federal, State, county, municipal, or other work-relief projects shall be con- sidered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S 7. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By interfering with, restraining,. and coercing its supervisory employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS On the basis of the above findings of fact and conclusions of law, the under- signed hereby recommepds that the respondent, ,Lakey Foundry and Machine Company, Muskegon, Michigan, its agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Chapter 136, Foreman's Association of Amer- ica, unaffiliated, or in any other labor organization of its supervisory employees, by discriminatorily discharging or demoting any of its supervisory employees, or by discriminating in any other manner in regard to their hire or tenure of employ- ment or any term or condition of employment ; (b) In any other manner interfering with, restraining, or coercing its super- visory employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Chapter 136, Foreman's Association of America, unaffiliated, or any other labor organization of its supervisory employees, to bargain collectively through representatives of their own choosing, and to en- gage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Offer to Neal Kruithoff and Donald Diephouse immediate and full rein- statement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the respondent's discrimination against him to the date of the offer of reinstatement, less his net earnings during the period ; (b) Post at its plant in Muskegon, Michigan, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the respondent, be posted by it 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; (c) Notify the Regional Director for the Seventh 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 with the foregoing recommendations. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondent has notified said Regional Director in writing that it will comply with the foregoing recommenda- 'ions, 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 LAKEY FOUNDRY AND MACHINE COMPANY 1089 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 to the Board within ten (10) days from the date of the order transferring the case to the Board. Any party desiring-to submit a brief in support of the Intermediate Report shall do so within fifteen (15) days from the date 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 of the other parties and the Regional Director. - WILLIAM F. SCHARNIKOW, Trial Examiner. Dated June 6, 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 supervisory employees in the exercise of their right to self-organization, to form labor organizations, to join or assist CHAPTER 136, FOREMAN'S ASSOCIATION OF AMERICA, unaffiliated, or any other labor organization of our supervisory employees, 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. AVE WILL OFFER to the employees named below immediate and full rein- statement 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. Neal Kruitlloff Donald Diephouse All our supervisory employees are free to become or remain members of the above-named union or any other labor organization of our supervisory employees. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any of our supervisory employees because ,of membership in or activity on behalf of any such labor organization. LAKEY FOUNDRY AND MACHINE COMPANY, Employer. Dated-------------------- BS------------------------------------------- (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.