The American Aircraft Manufacturing Co.

In the Matter of THE AMERICAN AIRCRAFT MANUFACTURING COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. O. Case No. 9-C-2098.-Decided September 5, 1946 Mr. Herbert J. Nester, for the Board. Messrs. Louis B. Mahrt and Henry L. Beigel, of Dayton, Ohio, for the respondent. Messrs. George W. Willein, of Dayton, Ohio, and B. Wilberding, of Hamilton, Ohio, for the Union. Miss Ruth E. Blie field, of counsel to the Board. DECISION AND ORDER 0 On October 29, 1945, Trial Examiner James R. Hemingway 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, and the Union filed a brief in opposition to the respondent's exceptions to the Intermediate Report. In its exceptions and brief, the respondent moved that the hearing be reopened for the taking of further evidence or, in the alternative, that a new hearing be granted because of newly discovered evidence which allegedly could not have been discovered and produced prior to the hearing held in this proceeding on August 9, 10, 11, and 13, 1945. The motion is hereby denied, in view of our disposition of the case on the merits. 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 Inter- mediate Report and the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, insofar as they are consistent with our findings and order hereinafter set forth. 70 N L. R. B., No. 96. 1132 THE AMERICAN AIRCRAFT MANUFACTURING COMPANY 1133 1. The Trial Examiner found, and we concur, that the respondent's use of a personnel record questionnaire questioning employees and prospective employees concerning their union affiliations is an unfair labor practice.' We shall therefore order the respondent to cease and desist from in any manner questioning its employees or prospective employees concerning their union affiliations. 2. The Trial Examiner found that the respondent, by its discharge of Clyde Lavender on November 13, 1944, committed an unfair labor practice. In making this finding, the Trial Examiner relied in great part upon the testimony of Richard Dixon, who had been employed by the respondent. This finding was made despite evidence that Dixon had, approximately 6 years before the date of the hearing, been con- victed of grand larceny, and had 3, months later been sent to the reformatory for violation of his parole. We do not concur in the Trial Examiner's finding that Dixon's testimony is credible. The evidence that Dixon had violated his parole, taken with the other evidence in the record, persuades us that Dixon is not a credible wit- ness. In making our findings, we therefore disregard Dixon's testimony.- In considering the record as it now stands, absent Dixon's testimony, we are not convinced that Clyde Lavender's discharge was motivated by anti-union considerations. We shall, accordingly, reverse the Trial Examiner and dismiss the complaint as to him. • 3. In view of the dismissal of the allegation that the respondent discriminatorily discharged Clyde Lavender, and upon the entire record herein, we are of the opinion that the record does not support,, a finding that the respondent, by the statements of Mills to Dixon, or by Kelker's and Niekamp's statements to employee William Tell, interfered with, restrained, or coerced its employees in the exercise of their rights under the Act. We shall, therefore, make no findings based on these statements. 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 American Aircraft Manufacturing Company, Dayton, Ohio, and its officers, agents, suc- cessors, and assigns shall : 1. Cease and desist from interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, 3 See Matter of Grove Regulator Company, 66 N. L. R. B. 1102. 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, by questioning employees or prospective employees in any manner con- cerning their union affiliations. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Delete from its personnel record questionnaire the question concerning union affiliation; (b) Post at its plants in Dayton, Ohio, copies of the notice attached hereto, marked "Appendix A." Copies of said notice,-to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the respondent's representative, be posted by the re- spondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, includ- ing 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 Ninth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT Is FURTHER ORDERED that the complaint 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 Clyde Lavender. MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES 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 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 UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0., or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activ- ities for the purpose of collective bargaining or other mutual aid THE AMERICAN, AIRCRAFT MANUFACTURING COMPANY 1135 or protection, by questioning employees or prospective employees in any manner concerning their union affiliations. WE wiLL delete from our personnel record questionnaire the question concerning union affiliation. THE AMERICAN AIRCRAFT MANUFACTURING COMPANY, Employer. -------------------- (Representative) (Title) Dated ------------ 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. Herbert J. Nester, for the Board. Messrs. Louis B. Mahrt and Henry L. Beigel, of Dayton, Ohio, for the respondent. Messrs. George W. Wilkie, of Dayton, Ohio, and B. Wilberdtiuig of Hamilton, Ohio, for the Union. - STATEMENT OF THE CASE Upon a charge filed on November 14, 1944, by International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board; by its Acting Regional Director for the Ninth Region (Cincinnati, Ohio), issued its,complaint dated July 25, 1945, against The American Aircraft Manu- facturing Company, herein called the respondent, alleging 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, accompanied by notice of hearing thereon, were duly served on the respondent and the Union. With respect to the unfair labor practices, the complaint as amended at the hearing alleged in substance that starting about September 1, 1944, and at various times thereafter the respondent, (a) questioned its employees and pros- pective employees' as to their union affiliation and other union matters; (b) urged and persuaded its employees to refrain from becoming or remaining mem- bers of the Union ; (c) advised its employees that it disapproved of unions and that its employees had no need to join a union; and (d) on about November 13, 1944, discharged employee Clyde S. Lavender because of his membership in, activities on behalf of, and sympathy for the Union and for the purpose of discouraging membership in the Union. The respondent filed no answer but the respondent's counsel at the hearing denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held on August 9, 10, 11, and 13, 1945, at Dayton, Ohio, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board and the respondent were represented by ' The words "prospective employees" were added by motion to amend granted at the close of the hearing. The respondent opposed the motion, contending that it did not receive ade- quate notice of this issue. Evidence of questioning prospective employees as well as em- ployees was introduced without objection by the respondent, and the matter was fully litigated The respondent gave no valid reason for requiring further time 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counsel and the Union by representatives. Full opportunity was afforded all parties to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the close of the Board's case the respondent moved to dismiss the com- plaint on the ground that the evidence failed to prove the allegations of the complaint. The motion was denied without prejudice to the right to renew the motion at the close of the hearing At the close of the hearing the respond- ent again moved to dismiss the complaint and ruling thereon was reserved. The motion is hereby denied. Board's counsel moved at the close of the hear- ing to amend the pleadings to conform to the proof as to names, dates, places, and other matters of like nature. The motion was granted. The parties were afforded an opportunity to argue orally, but declined. The respondent's and Board's counsel filed briefs with the undersigned. From his observation of the witnesses and upon the entire record in the case, the undersigned makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The respondent is an Ohio corporation operating three manufacturing plants in the .city of Dayton, Ohio, two of which are about half a mile apart and the third of which is about 2 miles from the first two The latter assembles the parts produced at the first two At these plants the respondent has been engaged in the manufacture of power plants, motois. torpedo kits, and hoists as a prime or subcontractor for the armed services. The major part of its raw materials, consisting of iron and aluminum castings , bar stock, and forg- ings, are produced in the Dayton area. Approximately 95 percent of its finished products is shipped outside the State of Ohio. At the time of the hearing the iespondent had about 500 employees in its three plants It. TH1 ORGANIZATION INVOLVED International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, C. I. 0., is a labor organization admitting to membership employees of the respondent. III THE UNFAIR LABOR PRACTICES A Interferefnce, restraint, and coercion; the discriminatory discharge 1. The employment application questionnaire In about December 1942, Edward Flynn, then respondent's personnel director, was visited by agents of the Internal Security Division of the United States Air Forces, who told him that the respondent's employment application ques- tionnaire-was not sufficient for their purposes. They gave him written instruc- tions concerning the information which such questionnaire should include. Among other information thus requested of the respondent was the "name of organization, character, type or kind of organization such as fraternal, social, political, religious, etc., address of the organization and number of years" the employee belonged to such organization About a week later Flynn telephoned the Intelligence Office and asked the Inspector what type of organizations they wanted and if unions were to be included. He was told that they wanted "every organization." Subsequent thereto the respondent prepared new personnel- THE AMERICAN AIRCRAFT MANUFACTURING COMPANY 1137 record questionnaires. This new questionnaire did not, however, ask for a list of all organizations. Its only question concerning organizations read : 21. Religion -------------------------------------------------------- (b) List all Lodges-Clubs or Unions -------------------------- The evidence indicates that the respondent did not always require those ques- tions to be answered, but two or three of the Board's witnesses credibly testi- fied that they were specifically asked by the, person taking their application whether they belonged to a union, and the form is still in use. Such inquiry as to the union affiliation of employees or prospective employees is a violation of Section (1) of the Act 2 2. Chronology of events leading to the discharge of Clyde Lavender Clyde Lavender applied for employment with the respondent on August 15, 1944. Industrial Relations Director Flynn, who took the application,' tele- phoned Lavender's former employer and was informed that Lavender had been there for 9 years, that he had quit his job because of dissatisfaction, that his work had been fair, that he was regarded as "something of a troublemaker," was "tied up with the Union," and that lie would not be reemployed by them Flynn reported this to Lee Niekamp, plant manager at one of the plants, but nevertheless recommended Lavender's employment, and Lavender was hired at that plant as a Class A operator at $124 per hour. He began work on August 21. About the middle of October, Lavender and another employee contacted an International Representative of the Union concerning organization and pro- cured some application cards. On these he procured signatures of four or five employees in his department On November 9, the Union distributed organ- izational campaign leaflets at the gate of the plant in which Lavender's depart- ment was located. One of these leaflets came to the attention of Don Kelker, director of welfare' and buyer for the respondent. That evening about quitting time, as Kelker was leaving the plant, he spoke to employee William Tell and asked him why the employees wanted a union. Tell replied that they did not have seniority or any other rights. Kelker, according to Tell's credited testi- mony, said, "Well, if you want to get it ironed out you can either come in and see me or Mr Niekamp," referring to Lee Niekamp, the respondent's plant manager.' Tell protested that they were always busy. Kelker replied that they always tried to iron out difficulties and called Niekamp over. Niekamp con- firmed Kelker's statement and invited Tell to come to his office when anything was wrong. About November 7 or 8, 1944, Works Manager Dwight Mills interviewed Richard Dixon for a job as time-study man. During the course of the interview, Mills, according to Dixon's credited testimony, told Dixon that the Union was at- tempting to organize and that the respondent clad not intend to have a union (Texarkana Bus Co v. N . L. R. B., 119 F. (2d) 480 ( C. C A. 8 ) ; D. W. Onankl Sons, 50 N L R. B. 195, 199, enf'd 139 F (2d) 728 (C C A. 8). S Lavender, when applying for employment, was asked by Flynn whether or not he be- longed to a union On his questionnaire Lavender gave the name of a union of which he was then a member. 4 Kelker's duties Involved Interviewing but not hiring applicants , handling employees' insurance , rationing, housing, buying tools for employees , assisting employees who were sued in garnishment proceedings and generally attending to employees' welfare. As such, the undersigned finds Kelker was a representative of management. ' Kelker admitted having had a conversation with Tell about the time the leaflet was distributed but denied having asked why the employees thought they needed a union. Kelker's memory of what was said was so vague that the undersigned regards his denial as based not on memory but on lack of memory. 1138 DECISIONS OF,- NATIONAL LABOR RELATIONS BOARD there and that they were going too get rid of anyone that caused trouble by talking union.' On Friday night, November 10, about six employees including Lavender attended a union meeting to discuss organization The next day, Saturday , November 11, at the plant , the employees did considerable talking about the Union.' Dixon was employed as a time-study man About November 13, Mills again interviewed Dixon for the purpose of offering him a promotion to the position of job foreman over the turret lathes .' When Dixon said lie would accept, Mills told Dixon , according to the latter, that they had a couple of trouble makers in the department,-naming Lavender and Tell, and saying that he was going to get rid of Lavender because his production was low and because Lavender wanted to be active in the Union Mills further told Dixon that Tell had a habit of leaving his department to come into the department Dixon would supervise, that lie should watch Tell and run him out or report him and he would be discharged. Mills testified that he did not tell Dixon "about Lavender 's case directly" but that he told him "they were standing around his machine and weren 't getting out the work." Mills further testified that he told Dixon that, because of the Union's attempt to organize, the employees were standing around the machines talking about the Union when "pamphlets" were passed out, and that lie wanted such congregations during working hours stopped Mills did not specifically deny the statements attributed to him by Dixon but testified that to the best of his knowledge he did not have a conversation with Dixon before Lavender's dis- charge. Certain portions of Mills' testimony indicate that his conversation with Dixon, here related, preceded Lavender's discharge. and on all the evidence the undersigned finds that the conversation testified to by Dixon took place sub- stantially as related by Dixon not later than the day of Lavender 's discharge. Mills further testified that Foreman Ed Allen and Job Foreman George Schwab informed him that Lavender was mainly responsible for the gatherings and con- versations around his machine.9 Foreman Allen testified that Mills had in- structed him to break up such gatherings and that he "told some of the boys," and when he would approach, "they just scattered ." Of those that so congre- gated, Tell was the only one who left his department . Allen did not testify that he warned "Lavender about this specifically , and the undersigned concludes and finds that Lavender was not warned that he would be discharged therefor and that Allen did not deal with Lavender other than he did with the rest of he employees who congregated. 9 The respondent attacked Dixon's credibility as a witness by establishing on cross- examination that Dixon had, about 6 years before , when he was about 20 years old, been convicted of grand larceny and 3 months later had been sent to a reformatory for violation of parole . So far as the record shows, Dixon , a sergeant in the army at the time of the hearing, had held responsible positions before and after his term of employment with the respondent and had apparently led an exemplary life. The undersigned was favorably im- pressed by Dixon 's demeanor and straightforward manner and credits his testimony. Mills did not specifically deny the foregoing statement attributed to him. He testified, however, that be did not tell Dixon that "anyone that joined the Union would be discharged." ' The employees were permitted lo talk provided It did not interfere with their work to do so ' The date on which this conversation took place was not definitely fixed. Mills, who gave a different version of his statements, placed it as about November 16 or 17. That would place it after Lavender's discharge, which took place as hereinafter related on November 13. Dixon was unable to fix the date exactly, but testified that he thought it was approximately one week before he assumed the duties of foreman . He assumed such duties on November 20 Carl Eichelman , a time-study man , testified that he recommended Dixon for this job a few days after Dixon started. 9 Mills testified that he had become aware of such gathering several weeks before Laven- der's discharge. THE AMERICAN AIRCRAFT MANUFACTURING COMPANY 1139 On Sunday, November 12, 1944, Mills was at the plant and, according to his testimony, he was "considering" Lavender's case. He went over the records and then typed up 'a memorandum to Industrial Relations Director Flynn, who handled all discharges. This memorandum first called Flynn's attention to Lavender's production record which was low compared to that of Wilbert Kocher- sperger, the man on the night shift who ran the same jobs on the same machine as Lavender ; it then stated that Lavender had refused to run an operation for a new time-study ; and it concluded that Lavender did not come up to the respond- ent's standards for a Class A operator.20 Attached thereto was (1) a compara- tive efficiency, record" of Lavender and Kochersperger and (2) Lavender's absentee record.12 Mills"memoradum, with records, was received by Flynn on Monday, November 13 At 3: 45 p. in. that day Flynn, whose office was at another plant, took his secretary to Superintendent Niekarnp's office in the plant where Lavender worked and called Lavender in. While Flynn's secretary made a shorthand transcript of the conversation, Flynn told Lavender that he was discharged because he had not "seemed interested enough" in his job to get by the 90-day probationary period. Lavender claimed that he was being discharged because of what he said about the Union Flynn replied that the Union had nothing to do with it. Lavender's discharge was effective as of 5: 30 p. m, but he quit about half an h)ur early, got his pay, termination notice, and statement of availability. The reason for termination given on his termination notice was, "Poor efficiency record-did not qualify Class A operator during probationary period." 3. Concluding findings The respondent at the hearing advanced three reasons for Lavender's dis- charge-low efficiency, poor cooperation, and absenteeism. Since neither of the last two were included on Lavender's termination notice, the undersigned con- cludes that they were not seriously regarded. The poor-cooperation criticism was based on an incident occurring early in November. A time-study man had requested Lavender'tofrun a particular opera- tion for a time study. Lavender refused to do so because, as lie testified, two time studies had already been made on him in 1 week and he did not want to run a third. The previous time study had been, made on a different machine, however, and the respondent was entitled to have a new one made when the machine was changed. The time-study man sent Lavender to Mills and Lavender then submitted to a time study.13 - Except for a 4-day absence in August during the second week of Lavender's employ, the reason for which does not appear in the record, Lavender was absent 10 Although the respondent had a 90 -day probationary period for new employees, and Lavender was hired on that basis , Mills did not allude to the fact that Lavender was within a week of completing such period . Instead , he wrote, "As with all other new employees we carried him for the first 2 weeks on day rate to allow him a chance to get his feet wet on the job -." Lavender's efficiency for his first 2 weeks was not included in the record of his averages. 11 The efficiency is based on quantity produced . Since much of the work Lavender was doing was close tolerance work, quality would necessarily be expected . No complaint was made with regard thereto. 12 During the second week,of his employment Lavender had been absent the first 4 days He was absent again on the following Monday (Labor Day), and thereafter he was absent on Saturday , October 7 and again for 43/2 hours on Friday, October 27, and 5 hours the next day, Saturday, October 28 He was late once, 12 minutes on October 17 Mills did not know the reason for the absences ( there is nothing in the record to show whether the absences were excused or not) and he made no comparison of Lavender 's absentee record with that of other employees 13 Occasionally other operators objected to running time studies 712344-47-vol. 70-73 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 24% working hours. These absences occurred between September 1 and Novem- ber 13, the date of'his discharge. In the same period, Kochersperger was absent at least 30 working.hours." The respondent did not show that Lavender' s absences were unusual by comparison with those of other employees. The undersigned finds that the two foregoing grounds were used as makeweight and did not influence the decision to discharge Lavender. Much testimony was given and many exhibits were introduced tending to estab- lish the fact that Lavender's production was low. During Lavender's period of employment the respondent inaugurated an incentive pay system under which au operator's production was computed by comparing the number of pieces produced during the day with the number of pieces that would have been produced in the same time according to the standard fixed by a time study. Since there was only one other man in the shop, Kochersperger, who was doing parallel work under the same time studies, the undersigned believes that Lavender's work cannot be judged by comparison of his production percentages with those of anyone else.16 On October 16, 1944, a time study was made of a close-tolerance job on a brakehead that was being run by Lavender.1" The time-study roan timed only five pieces, less than a good time study would cover.17 This study was made after Lavender and Kochersperger had been performing the operation for about a week. Using the standard so fixed,,the respondent retroactively computed the production efficiency of Lavender and Kochersperger for the preceding week as well as for the succeeding time spent on that operation. While Lavender and Kochersperger were operating under this time study, their production efficiency appeared on the records as very low. A comparison of Lavender's production record with even Kochersperger's is not entirely satisfactory, since Kochersperger did not every night perform the same operation that Lavender had performed on the day shift. For example, on the operation on which the above time study was taken Lavender worked a total of. 117.8 hours in which time he completed 240 pieces, while Kochersperger put in 82.8 hours and completed 158 pieces. This would indicate that Lavender's rate per hour on that piece was slightly faster than Kochersperger's. But, for the 2 weeks during which this operation was being run, Lavender's efficiency is shown on the respondent's records as 49 and 57 percent respectively and Kochersperger's as 42 and 67 ;percent. For a 10-week period from September 4 to November 11, Kochersperger's average was shown on the respondent's records as 83 percent as against 71.6 for Lavender." Kochersperger "There is no way of telling from the record how many of Kochersperger's short shifts ( of which lie had a number ) were due to absences. 11 If time studies were infallibly accurate, it might be safe to compare Lavender's pro- duction percentages with those of other operators in his department who were working under other time study standards. If such degree of accuracy is ever attained, the undersigned is convinced that it had not been attained while Lavender was employed by the respondent . The respondent was rushed for time studies , and as it consequence jobs were not being studied long enough to make perfect studies. 10 In this brakehead a bearing seat in which the tolerance was plus nothing, minus half a thousandth had to be made. 11 Dixon testified that sometimes the time studies allowed insufficient time for inspection. '"The respondent's record of department efficiency shows Kochersperger's - efaciency for the week ending October 28 as 70 percent. Kochersperger's daily record for that week, however, shows that his weekly average for that week should be 62 percent. Other mistakes are to be found in the computations of averages for the last week of Lavender's employ. Lavender appears to have been graded on a standard of something over 14 pieces per hour on one operation whereas for 3 days during the same week Kochersperger was graded on the same operation on a standard of 11 plus. An elimination of all mis- takes found in the production records would have reduced the difference between Lavender's and Kochersperger's efficiency percentage a few points. THE AMERICAN AIRCRAFT MANUFACTURING COMPANY 1141 was a good operator in the respondent's estimation'9 Conceding that the records of Kochersperger's work afford some basis of comparison with Lavender 's work, the undersigned concludes and finds that Lavender was an operator of at least fair productivity . It will be remembered that Flynn knew before he hired Lavender that the latter was rated as fair by his previous employer. The respondent adduced testimony by Kochersperger tending to show that Lavender was holding down on his production in an effort to get a more favorable time study made. Kochersperger testified that he and Lavender had discussed the difficulty of producing the standard set by the time study and that he and Lavender both were taking longer than was necessary to check their work because they both wanted to get a better time study. Lavender testified'that he had talked to Kochersperger about bonus and that Kochersperger had said he was unable to make any, but added that Kochersperger had made 2 or 3 per- cent, apparently meaning that once in a while he was able to make a little bonus. From this testimony and all the evidence the undersigned concludes that during October and the first week in November, Lavender and Kochersperger regarded the time study as making it so difficult to get incentive pay on the brakehead job that there was little inducement for them to work at an accelerated rate. Kochersperger testified that after Lavender's discharge his production improved. The efficiency records in evidence for the 2 weeks following Lavender's discharge (which was as far as the record in evidence was carried) show Kochersperger's averaged as 102 for the week ending November 18 and 73 percent for the next week ZD If Lavender and Kochersperger were holding back materially on the brakehead job on which they desired a more favorable time study it might be expected that their rate of production would not have improved materially over their first week's production The efficiency record, figured retroactively for the first week, shows that they started very low and thereafter slowly improved. There is no question but that the operation was a difficult one and one on which their efficiency could be expected to improve slowly. While the undersigned believes that Lavender may not have been extending himself to produce as much as he could, the evidence indicates that others likewise were not producing as much as they could have.21 If the respondent's records are to be relied on (and the undersigned found sufficient mistakes in the computations of averages in the figures in evidence to be skeptical), Kochersperger would sometimes show a better rate of improve- ment in production after he had become familiar with the operation and he probably was entitled to a higher percentage than Lavender, but not so much as the records show. So far as the evidence discloses, however, Mills, in initiating the discharge of Lavender, was not aware of mistakes in the efficiency records, which showed so great a difference between Lavender and Kochersperger. It remains there- fore to decide whether Lavender would have been discharged on the basis of the efficiency records in the absence of his union activities. Flynn and Allen testified that they had spoken to Lavender about his low production efficiency before his discharge and told him that he would have to do better. Lavender testified that no one 'had spoken to him about his low production until a few m The respondent's records show that in the same 10 -week period Kochersperger's weekly efficiency exceeded 100 percent four times Lavender exceeded 100 percent only once although he occasionally made 100 percent or better for single days. 20 The 102 percent week did not involve work on the brakehead job. The record does not disclose what kind of jobs Kochersperger worked on during the 73 percent week 23 Kochersperger testified that the night foreman told the men on the night shift that they might produce more if they worked a little harder , and they laughed and admitted that they might. 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD days before his discharge when a time study man mentioned it The under- signed credits Lavender's testimony. Mills testified that he had initiated only one other discharge 22 although he discussed all of them. The evidence indicates that that discharge was precipitated by an incident which Flynn had. reported to Mills. Mills knew that Lavender was the center of all the gatherings occa- sioned by the commencement of the Union's open organizational campaign. The fact that Flynn chose to make a record of Lavender's discharge interview indicates that Lavender's was more than an ordinary discharge Flynn testi- fied that only twice. before had he made transcripts of discharges-one when a vice-president was discharged and the other involving an internal security question 2' These facts and Mills' statement to Dixon that he did not intend to have a union at the plant and that Lavender was being discharged for two reasons-low efficiency and union activity-clearly indicate that the latter was at least one of the reasons for Lavender's discharge' The timing of the events likewise is significant. The first open indication of union organization- distribution of the campaign leaflet-occurred on November 9; the Union held a meeting on the night of November 10; on November 11 there was considerable union talk among the employees centering about Lavender's machine to the respondent's knowledge ; on November 12 Mills decided to discharge Lavender and, contrary to usual practice, initiated a discharge himself. On the entire record the undersigned finds that Lavender would not have been discharged but for his union activities andf that by such discharge the respondent discrim- inated in regard to his hire and tenure of employment in violation of Section 8 (3) of the Act, thereby interfering with, restraining, and coercing its employees in the exercise of- the rights guaranteed in Section '7 of the Act With respect to Mills' statement to Dixon that the respondent did not intend to have a union at the plant and that they were going to get rid of anyone who caused trouble by talking union, the undersigned finds that the respondent inter- fered with, restrained, and coerced its employees .in the exercise of -the rights guaranteed by the Act. Mills' statement was definitely coercive in character Moreover, while Dixon, as a' time study man, may not have been included in a unit with the employees sought to be represented by the Union, Dixon would have been entitled to representation in a proper unit. Kelker's and Niekamp's statements to Tell, standing alone are mild in charac- ter, but when they are considered in connection with their timing and the re- spondent's general attitude of opposition to the Union, they take their place as a part of the respondent's effort to dissuade its employees from becoming or re- maining members of the Union and the undersigned finds that the respondent thereby and by use of its employment questionnaire likewise interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by the Act. 22 This referred to the discharge of Stanley Abrams on October 5 , 1944 , for anefficlency and lack of cooperation Abrams' efficiency was shown on the respondent 's records as 63 5 percent. His lack of cooperation was his refusal to give his correct resident address for the respondent's records The latter was the immediate cause,for Abrams' discharge. 23 At one point in his testimony Flynn testified that in the second instance, the dis- charge of a man whose name he could not remember, an internal security question was, involved ; at another place he testified that this man was discharged for inefficiency. Flynn was unable to say what had happened to the transcript of this discharge interview. 24 Assuming that both the low efficiency and the union activity were involved in Lavender's discharge, the buiden was on the respondent to disentangle the legal from the illegal cause and show that Lavender would have been discharged for low efficiency in the absence of his union activity . See N . L. R B v Remington Rand, Inc, 94 F (2d) 862, 872 (C. C. A 2). This burden the respondent has tailed to sustain. if THE AMERICAN AIRCRAFT MANUFACTURING COMPANY 1143 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 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 practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent's use of a personnel-record question- naire questioning employees and prospective employees concerning their union affiliations is an unfair labor practice. It will therefore be recommended that the respondent delete from such questionnaire the question concerning union affiliation. Since it has been found that by the discharge of Clyde Lavender on November 13, 1944, the respondent committed an unfair labor practice, it will be recom- mended that the respondent offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seni- ority or other rights and privileges, and make him whole for any loss he may have suffered by reason of the respondent's discrimination against him by pay- ment to him of a sum of money equal to the amount he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings 2B during such period. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS of LAw 1. International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, C. I. 0, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Clyde Lavender, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. ' 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act RECOMMENDATIONS Upon the basis of the foregoing findings of fact and -conclusions of law, the undersigned recommends that the respondent, The American Aircraft Mann- 21 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 elsewhere 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 earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facturing Company (Dayton, Ohio), its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) In any manner questioning its employees or prospective employees concerning their union affiliations; (b) Discouraging membership in International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, affiliated with, the Congress of Industrial Organizations, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employ- ment.or any term or condition of employment; (c) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to solf-organization, to form labor organiza- tions, to join or assist International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, C. I. 0., or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Delete from the personnel-record questionnaire the question concerning union affiliation ; (b) Offer to Clyde Lavendar immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges; (c) Make whole said Lavendar for any loss he may have suffered by reason of the respondent's discrimination against him in the manner set forth in the Section entitled "The remedy" above ; (d) Post immediately at its plants in Dayton, Ohio, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Ninth Region (Cincinnati, Ohio),, 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 re- spondent to insure that said notices are not altered, defaced, or covered by any other material ; (e) Notify the Regional Director for the Ninth Region (Cincinnati, Ohio) in writing within ten (10) days from the date of-the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recom- mendations, 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 July 12, 1944, 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 THE AMERICAN AIRCRAFT MANUFACTURING COMPANY 1145 objections) as he relies upon together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. - JAMES R. HEMINGWAY, Trial Examiner. Dated October 29, 1945. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL UNION, UNITED AUTO- MOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate` and full rein- statement to their former. or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the dis- crimination. Clyde Lavender We will delete from our personnel-record questionnaire the question con- cerning union affiliation. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. THE AMERICAN AIRCRAFT MANUFACTURING COMPANY, Emploper. 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.