Harold W. Baker Co.

In the Matter Of HAROLD W. BAKER, JR., LEONARD E. HEPFER, KATH- LEEN B. STARR, PAUL BAKEWELL , III, CO-PARTNERS, DOING BUSINESS AS HAROLD W. BARER COMPANY and LOCAL No. 155. UNITED ELEC- TRICAL, RADIO & MACHINE WORKERS OF AMERICA ; C. I. O. Case No. 4-C-1495.-Decided September 30, 1946 Mr. John H. Garver. for the Board. Mr. David H. Kinley, of Philadelphia , Pa., for the respondent.. Miss Helen Laughlin, of Philadelphia , Pa., for the Union. Miss Katharine Loomis , of counsel to the Board. 6 DECISION AND ORDER 6 On June 19, 1946, Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceeding, finding that the respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondents filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the Trial Examiner's rulings made 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 respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondents, Harold W. Baker, Jr., Leonard E. Hepfer, Kathleen B. Starr, and Paul Bakewell, III, co- partners, doing business as Harold W. Baker Company, Bryn Mawr, Pennsylvania, and their agents, successors, and assigns shall: 71NLRB,No.12 44 HAROLD W. BAKER COMPANY 45 1. Cease and desist from : (a) Dominating or interfering with the formation or administra- tion of, or contributing financial or other support to, Employees Representation Committee or any other labor organization of their employees; (b) Recognizing Employees Representation Committee as the rep- resentative of any of their employees for the purpose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (c) Discouraging membership in Local No. 155, United Electrical, Radio & Machine Workers of America, C. I. 0., or any other labor organization of their employees, by discharging, transferring, or demoting, or by discriminating in any other manner in regard to their lure or tenure of employment, or any term or condition of their em- ployment; (d) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local No. 155, United Electrical, Radio & Machine 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, 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) Withdraw all recognition from, and completely disestablish, Employees Representation Committee as the representative of any of their employees for the purpose of dealing with the respondents con- cerning grievances, labor disputes, wages, rates of pay, hours of em- ployment, or other conditions of employment; (b) Offer to Catherine Gallagher, Helen Vogt, Joseph Haggerty, Pauline Scanlon, Florence Mercer, Anna Meaney, and Dan Dortone immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (c) Make whole Catherine Gallagher, Helen Vogt, Joseph Hag- gerty, Pauline Scanlon, Florence Mercer, Aiwa Meaney, and Dan Dortone for any loss of pay they have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount which lie normally would have earned as wages during the period from the date of the respondents' dis- crimination against him, to the date of the respondents' offer of rein- statement, less his net earnings during said period; 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at their plant at Bryn Mawr, Pennsylvania, copies of the notice attached to the Intermediate Report, marked "Appendix A." 1 Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly sigiied by the respondents' representative, be posted by the respondents immediatly upon receipt thereof, and maintained by them for sixty (60) consecutive days there- after, in conspicuous places, including all places where notices to em ployees are customarily posted. Reasonable steps shall be taken by the respondents to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Fourth Region in writing, within ten (10) days from the date of this Order, what steps the respondents have taken to comply therewith. INTERMEDIATE REPORT Mr. John if Garver, for the Board. Mr David H Icinley, of Philadelphia , Pa., for the respondent. Miss Helen Laughlin, of Philadelphia , Pa, for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed by Local No. 155, United Electrical, Radio Machine Workers of America, C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its complaint dated March 5. 1946, against Harold W Baker, Jr, Leonard L Hepfer, Kathleen B. Start, Paul Bakewell, III, co-partners, doing business as Harold W, Baker Company, herein called the respondents, alleging that the respondents had engaged and were engaging in unfair labor practices affecting commeice within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, heiein called the Act Copies of the complaint ac- companied by notice of hearing were duly served upon the respondents, the Union, and Employees Representation Committee, herein called the Committee With respect to the unfair labor practices, the complaint alleged in substance that the respondents: (1) since on or about April 1, 1945, vilified, disparaged, and expressed disapproval of the Union, interrogated employees concerning 'their union affiliation; urged, persuaded, threatened, and warned their employees to refrain from assisting and becoming members of the Union and to assist, participate in, and become members of an employee representation committee; and kept under surveillance their employees' union activities and meeting places ; (2) on or about April 6 and 7, 1945, initiated, formed, and sponsored an employee representation committee, and thereafter assisted, domingted, contributed to the support of, and interfered with the administration of said committee; (3) on or 1 This notice, however, shall be, and it hereby is, amended by striking from the first paragiaph thereof the words 'recommendations of a Trial Examiner" and substituting in lieu thereot the words ' A decision and order In the event this order is enforced by decree of a Circuit Court of Appeals, there shall be inserted, before the words "A Decision and Order" the words : "A decree of the United States Circuit Court of Appeals enforcing." 1 HAROLD W. BAKER COMPANY 47 about May 15, 1945, terminated the employment of Catherine Gallagher, Helen Vogt, and Joseph Haggerty because of their union membership and activities, and on the same date and for like reasons constructively discharged Anna Meaney, Pauline Scanlon, Florence Mercer, and Dan Dortone by discriminatorily transferring Meaney, Scanlon, and Mercer from their regular to other work shifts and by discriminatorily assigning Dortone to different and less desirable work, thereby causing them to terminate their employment with the respondents; and (4) by such conduct engaging in unfair labor practices within the meaning of Section 8 (1), (2), and (3) of the Act. The respondents filed an answer in which they denied generally that they had engaged in any unfair labor practices Pursuant to notice, a hearing was held from March 20 to March 22, 1946, at Philadelphia, Pennsylvania, before the undersigned, Arthur Leff, the Trial Ex- aminer duly designated by the Chief Trial Examiner. The Board and the respond- ents were represented by counsel and the Union by a representative. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the Board's case, the undersigned granted a motion of counsel for the Board to conform the pleadings to the proof with respect to the spelling of names, dates, and other minor variances. At the conclusion of the hearing, the parties were afforded an oppor- tunity to present oral argument before, and to file briefs with, the undersigned. Counsel for the respondents alone availed himself of the opportunity to argue, and no briefs were filed Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Harold W. Baker, Jr, and Leonard E. Hepfer, as general partners, and Kathleen B . Starr and Paul Bakewell, III, as limited partners , are and have been since September 1943 , doing business under the trade name and style of Harold W. Baker Company with their principal office and place of business in the City of Bryn Mawr , Pennsylvania . At present the respondents are engaged in the busi- ness of designing and manufacturing special purpose machines At the time particularly referred to in the complaint the respondents were engaged in the manufacture of screw machine parts for the manufacture of ammunition. The respondents in the course and conduct of their business cause and have contum- ously caused a substantial amount of raw materials used in the manufacture of their products , consisting during the calendar year 1944 principally of steel, bronze, and other alloys valued in excess of $15,000, to be purchased, delivered, and transported in interstate commerce from and through States of the United States other than the Commonwealth of Pennsylvania to their Bryn Mawr plant, and cause and have continuously caused a substantial part of their manufactured products, valued in excess of $400,000 during the calendar year 1944, to be delivered and transported in interstate commerce to and through States of the United States other than the Commonwealth of Pennsylvania from their Bryn Mawr plant. The respondents admit that they are engaged in commerce within the meaning of the Act. 11. THE ORGANIZATIONS INVOLVED Local No 155, United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization which admits employees of the respondents to membership. 717734-47-vol 71-5 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employee Representation Committee, hereinafter more fully referred to, is an unaffiliated labor organization.' III. THE UNFAIR LABOR PRACTICES' A. Introduction During the first half of 1945, the respondents, then engaged principally in the production of a 40 mm. projectile under a Navy contract, employed at its plant in Bryn Mawr from 80 to 100 production and maintenance employees. Most of the employees were recruited from the immediate locality and their families and home conditions were personally known to the respondents' management personnel. Operations at that time were conducted "around the clock" ; there were three shifts for women and two for men.' Leonard E. Hepfer, a partner, acted as plant superintendent, and George Mateer, a consulting engineer who de- voted his entire time to the operations of the Company,' assisted Hepfer generally in supervising the plant operations In addition, the respondents' supervisory staff consisted of Victor Ferraris and Edward Massia, shift foremen, Frances Garter, in charge of inspection on the day shift, John Medlin, foreman of the toolroom, and John Emberger. The supervisory status of these employees, clearly established by the record, was not questioned by the respondents at the hearing. During the period here involved, the respondents' plant, like otheis during wartime, suffered from a high rate of labor turn-over and an acute manpower shortage. Great difficulty was experienced in hiring and retaining experienced labor. Unable to find a sufficient supply of experienced and full-time employees, the respondents found it necessary to resort to part-time workers and to recruit and train inexperienced help. As Ferraris testified, the question was not what the respondents could get-"You tried to make the best with what you had." Because of this situation, testified Hepfei, be considered it an essential part of his job as plant superintendent to make an effort to discourage employees from leaving, and, to that end, made it his practice to attempt to remove all sources of employee dissatisfaction such as, for example, dissatisfaction with shift assignments. This critical manpower situation prevailed at the respondents' plant, Hepfer's testimony discloses, throughout and beyond the period when all the events narrated below occurred. B. Commencement of union organizational activities; the formation of the Committee In the early part of 1945 , dissatisfaction developed among the employees, particularly with respect to their wage rates. At a meeting held on February 1, 1945, the employees had been advised by management that the respondents were about to apply to the War Labor Board for a wage increase . Beyond referring the matter to their accountants for an audited report, the respondents had not, however, further processed the application for a wage increase , and anxiety over the lack of progress had begun to manifest itself among employees. 'The respondents' answer admits that the Committee as well as the Union is a labor organization. 2 The following findings are based on admitted facts or credible evidence which, except Where otherwise indicated, was not substantially contradicted. 3 The shift hours for women were from 8 a. in. to 4 p. in ., from 4 p . in. to 12 midnight, and from 12 midnight to 8 a. in. ; for men from 7 a. in. to 5: 30 p . in and from 5: 30 p. m. to 7 a. in. 4 Mateer has since acquired a financial interest in the firm. HAROLD W. BAKER COMPANY 49 In March 1945, the Union commenced organizational activities among the respondents' employees. As appears from the testimony of Mateer, the existence of "union agitation" in the plant came to the notice of the respondents' man- agement about the first week of April. The formation of the Committee followed soon thereafter. On April 6, the employees were notified by their immediate supervisors that a meeting would be held in the plant that afternoon at the conclusion of the day shift. According to Ferraris and Carter, the decision to hold the meeting was made by the plant foremen, acting on their own initiative. But the plan to hold the meeting, the record shows, was directed by the foremen to the atten- tion of higher management before it was carried into effect. Ferraris testified that before making final arrangements for the meeting, he, on behalf of the foremen, called on Hepfer and Mateer to obtain their permission for the meeting and to explain its purpose, and that Hepfer and Mateer "didn't give [the fore- men] much satisfaction either way, but they didn't object to it too strenuously." The purpose of the meeting, testified Ferraris, was to see "if we couldn't get together and iron out our own troubles among ourselves " Carter testified, in effect, that the decision to hold the meeting was prompted by a desire on the part of the foremen to stem the rising tide of employee dissatisfaction which the foremen felt was retarding production, and that its immediate object was to provide a forum in which to assure the employees that the respondents were attempting in good faith to secure for them a wage increase. But from other evidence in the record as well as from events which followed, it is clear, and it is found, that the planned meeting had a purpose broader than that indicated in the testimony of Ferraris and Carter, and one directly related to the union activities in the plant. Thus, employee Florence Meicer testified without contradiction, and it is found, that Carter, when she announced to em- ployees that the meeting was to be held, said, "You know, girls, you know they are trying to get a union in here, and we don't want a union in here. Let us have our own union inside and we will all be a happy family." Employee Pauline Scanlon testified, similarly without contradiction, and it is found, that Carter, when she informed Scanlon of the meeting, said that its purpose was "to see it they [the employees] could do without a union." Held on the plant floor and attended by Foremen Ferraris, Carter, Medlin, and Emberger as well as employees on two shifts, the meeting on April 6 began at 4 p in. and lasted about an hour. It extended into the working time of the female employees on the 4 p. in to midnight shift and of the male employees on' the day shift whose shift hours did not end until 5: 30 p. in. While the meeting was in progress, all plant operations were suspended. Those employees on whose working time the meeting encroached were paid at their regular rates without deduction for time spent at the meeting. At the April 6 meeting, all employees, including those favoring the Union, were afforded an opportunity to air their grievances and express their views. But at the same time the foremen present made clear their opposition to the Union. Foreman Emberger told the employees that they did not need a union. -Forelady Carter suggested that the employees form an employees' committee of their own to handle grievances and to determine whether the respondents really intended to process an application for a wage increase. While suggesting the formation of the Committee, Carter said, "Let us not call it a union. Let us call it a committee. The name union stinks to me." After the meeting had progressed in a disorganized manner for some time, Al Mandes, a part-time employee, who had expressed his opposition to the Union, assumed chairman- ship of the meeting, and at his suggestion the meeting was adjourned to the following day. 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 7, the employees again met under the chairmanship of Dlandes. This meeting, like the one on the preceding day, was held on company premises and during the working time of some of the employees. Unlike the meeting on the preceding day, however, the April 7 meeting was not attended by any of the foremen But the April 7 meeting was marked by the presence of Mateer who testified that he, with the knowledge of Hepfer, attended that meeting at the invi- tation of employee Evelyn Lorenzo and Al Mandes for the purpose of• discussing the status of the War Labor Board wage increase application. Dlateer, in a talk to the employees, informed them that the respondents were engaged in processing before the War Labor Board an application for a wage increase, and were doing everything possible to expedite that application. He also intimated that the em- ployees could not achieve speedier action through the efforts of a union. In response to questions from employees, Mateer stated that if an "inside" em- ployees' committee were formed, it could represent the employees concerning wages, hours, and grievances, and that no employee would be discriminated against because he had participated in union activities. Mateer then retired from the meeting. After Mateer left, the employees present were polled to determine whether or not they desired to form an employees' representation committee. A majority voted in favor of the organization of such a committee. A further vote was then taken to elect committee representatives, and employees Evelyn Lorenzo, Anna Smoll, William Hammond, and Russell DeAntonio were chosen.' On April 10, the respondents filed with the War Labor Board a formal appli- cation for a wage increase. Following its organization, the Committee met with management on two oc- casions and discussed certain employee grievances as well as the question of the wage increase. Except for these two meetings, the Committee has not func- tioned, but neither has it ever been formally dissolved Only two Committee representatives, Anna Smoll and Russell DeAntonio, now remain in the respond- ents' employ. C. Conclusions as to the respondents ' donzinatton and suppar t of the Committee It is clear, especially in the light of the respondents' other acts of interference and discrimination as described in succeeding sections of this report, but also independently thereof, that the formation of the Committee was initiated, spon- 'Sored, and supported by the respondents in furtherance of a program to forestall and frustrate the organization of the employees into a union of their own choosing. The Committee first came into existence shortly after the respondents learned that the employees' mounting dissatisfaction with respect to their wages had begun to seek expression through union organizational activities. The plan to form the Committee was conceived not by the rank and file employees but by the supervisory personnel and was by them promoted and presented to rank and file employees on company time and property. In furthering their plan the super- visory employees, for whose actions the respondents must in any event be held ac- countable, acted with the tacit acquiescence if not the express approval of higher management. And higher management, by knowingly permitting the use of company time and property for employee meetings designed to bring about the formation of an "inside" labor organization, not only made clear to the employees their favor of the proposed Committee but lent invaluable assistance and sup- " At some later date , just when the record does not disclose , an additional employee, Helen Martin , was appointed to the Committee. HAROLD W. BAKER COMPANY 51 port to its formation. Further assistance and support to the Committee was extended by the respondents through management representative Mateer whose appearance and address at the second employees' meeting was clearly calculated to impress upon the employees that an outside union was unnecessary to gain a wage increase for the employees and that the employees could achieve adequate representation through a shop committee of their own. It is evident from the testimony as a whole that the Committee, although taking the form of a labor organization (as the respondents' answer admits), was conceived and organized more as a counter to the Union than as an organization intended to assume the role of a truly active bargaining agency. That it was so understood by the em- ployees is proved by the inactivity into which the Committee was allowed to lapse soon after its organization. It is the contention of the respondents that the Committee was spontaneously formed by their employees without any interference or support on the part of the respondents The facts outlined above, particularly those showing the active intervention of certain of the respondents' supervisory and managerial employees in the formation of the Committee, effectively refute that contention. The fact that no supervisory personnel were present at the time the employees actually voted to form the Committee does not absolve the respondents of re- sponsibility. For Section 8 (2) is not so narrowly interpreted as to require that direct link between the employees and the outlawed organization, but, must be broadly construed to cover any conduct upon the part of the employer which is intended to and has the normal effect of bringing into being, even indirectly, an organization -which the employer considers favorable to his own interest. It is clear that the Committee came into existence under "conditions or circum- stances which the employer created or for which [he] was fairly responsible and as a result of which it may be reasonably mf erred that the employees did not have that complete and unfettered freedom of choice which the Act con- templates." 9 Upon the entire record, it is concluded and found that the Com- mittee, a labor organization. is the creature of the respondents and that the respondents have dominated and interfered with its formation and have con- tributed support to it, thereby interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act. D. Events following the formation of the Committee; additional interference, restraint, and coercion The formation of the Committee did not put an end to the Union' s organiza- tional activities, and these activities continued to draw the attention of respond- ents' supervisory staff. Employee Anna Meaney, who the record discloses was the leading union ad- herent among the respondents' employees, testified credibly that Ferraris, when- ever he passed her, would inquire if she had a union card 7 Employee Pauline Scanlon testified credibly, and it is found, that Carter in conversations with em- ployees under her supervision continued to express her opposition to the Union IN. L R B v Link-Belt Company, 311 U. S. 584, 588 ° Ferraris, while testifying, admitted that he made these remarks but said they were made in jest and so understood . Since Meaney's interest in the Union was well known in the plant, it is clear that Ferraris' remarks were not intended to elicit information from her as to her union membership. Whether or not they were made in jest it is unnecessary to decide, since no independent finding of unfair labor practices is here predicated upon Fer- raris' remarks to Meaney. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and stated on one occasion that "if the Union came in that Mr. Baker would close the doors of the plant." ° Two union meetings were held in the period between the time of the formation of the Committee and May 15, 1945, both at a hall in the neighboring town of Ardmore The first of these meetings, held about April 15, was attended by nine employees-Catherine Gallagher, Helen Vogt, Joseph Haggerty, Anna Meaney, Pauline Scanlon, Florence Mercer, Dan 'Dortone, Julia Griffith, and William Murphy. The second, held on Sunday May 13, was attended by only eight em- ployees • the same employees, with the exception of Murphy, who had attended the earlier meeting ° The union meeting of May 13 became, on the following day, a topic of dis- cussion generally among employees in the plant On May 14 or 15, it was also made the subject of conversation between Forelady Carter and Loretta Dunbar Gallagher 10 As related by Mercer, who was present at the time, and as found by the undersigned, the conversation between Carter and Loretta Gallagher ran substantially as follows: Frances Carter asked Letty [Loretta Dunbar Gallagher] if she was invited to the meeting on Sunday and Letty said, "What meeting9" and she says, "The union meeting" Well, Letty claimed that she didn't know anything about the meeting Well, Frances says, "They had the meeting all right and Len [Ilepferl knows everyone that was there "" On the evening of May 14 during working hours, Catherine Gallagher, a 4 p. M. to midnight shift employee who had attended the union meeting the preceding day, asked a fellow employee, George Soler, whose station of work was about 4 feet across from hers, to sign a union card Soley informed Shift Foreman Ferraris that Gallagher had solicited his membership in the Union Later that evening, Ferraris summoned Gallagher to the plant office and reprimanded her for engaging in solicitation activities When Gallagher, according to his testi- mony protested that she was within her rights in doing so, Ferraris told her, "You can pass cards around but please don't do it in working hours " Gallagher was then told to return to wo 1c 12 The respondents had no rule prohibiting talking in the plant during working hours. Nor had they in the past announced any rule proscribing union solicita- S Carter denied making the quoted remark According to her version , she said only that "if we didn't make our quota ( of production ) this month I wouldn't blame Mr Baker if he just closed the plant." Carter's over-all testimony disclosed her to be an evasive and unreliable witness, and other portions of her testimony revealed a propensity on her part to explain all statements and conduct by supervisors, otherwise firmly established by the record to have been directed against the Union, as having been inspired by production con- siderations . Scanlon, on the other hand, impressed the undersigned as an exceptionally forthright witness Under the circumstances, the undersigned credits Scanlon 's testimony and rejects Carter' s denial. ° The record discloses that those in attendance at the meetings did not represent the full roll of union membership . Mercer testified that "practically" half the employees had joined the Union, but that many, although they had signed cards "were afraid to go to the meeting " 3° Loretta Dunbar Gallagher is not related to and is not to be confused with Catherine Gallagher, a union member . Loretta Gallagher, while in the respondents ' employ, never joined the Union and revealed by her testimony and demeanor on the witness stand that she was opposed to it 11 Carter did not deny that she had the conversation with Loretta Gallagher as related by Mercer. Mercer fixed May 15 as the date of the conversation . Loretta Gallagher testi- fied that this incident occurred on May 14. >z The findings made as to this incident are based upon the testimony of Gallagher and Ferraris which up to this point is substantially in accord. HAROLD W. BAKER COMPANY 53 tion during such hours. Ferraris admitted that lie had never theretofore in- formed Gallagher or any other employee that union solicitation was prohibited. Moreover, as has been shown above, Ferraris and other supervisors and employees had been permitted to engage in what was in effect anti-union solicitation during working hours in connection with the meetings which led to the formation of the Committee. These facts are related here not because the undersigned considers that Ferraris acted illegally in warning Gallagher to refrain from union solici- tation during working hours, time which properly should be reserved for work, but solely because of their hearing on other issues herein in conjunction with which they must be appraised Clearly coercive in character, however, was Carter's statement to employees that "if the Union came in-Mr. Baker would close the doors of the plant" as well as Carter's remarks to Loretta Dunbar Gallagher indicating knowledge of those present at the union meeting The latter remarks while not sufficient to establish that the respondents engaged in surveillance nevertheless served to foster that impression and hence were as intiinulatory in character as surveillance itself It is found that by Carter's statement and remarks referred to above the respondents engaged in conduct which interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. E The discharges and transfers of i77iion members on May 15, 1945 When Catherine Gallagher reported for work on the afternoon of May 15, 1945, the day following her conversation with Ferraris reported above, she found her time card missing from its rack. As to what followed, Gallagher's testimony, which the undersigned credits, is set out below: I went back to ring in and my card wasn't in the rack, and Frances Carter said that Mr. Hepfer wanted to see me in the office. So I went over and I met him and he asked me what was going on last night, and I told him nothing wrong as far as I could see Well, he said, "We are going to lay some of the people off We haven't got quite enough of work". So he said, "IIere is your release". I said, "Thank you". I said, "Now I think I know what it is for", and I said "Well I wasn't born yesterday" and he said neither was lie. So I went. On the same day that Gallagher's employment was terminated, the respondents also took the following action : (a) The respondents also released, purportedly for lack of work, Helen Vogt and Joseph Haggerty, part-time employees on the late afternoon shift. These employees, like Gallagher, were first notified that their employment was being terminated after they reported for work on the afternoon shift and were not permitted to engage in work that day. (b) The respondents transferred Anna Meaney, an inspector, from the 4 p. in -midnight shift, where she previously had been assigned, to the mid- night-8 a. in shift, and transferred Pauline Scanlon and Florence Mercer, also inspectors, from the 8 a. in. to 4 p. in. shift, where they previously had been employed, to the 4 p. in. to midnight shift. Meaney was first informed of her change in shift hours in a telephone call from Carter which she received at her home about an hour before she was scheduled to report for work that day. Scanlon and Mercer together were advised by Carter at the end of their shift at 4 p. in. Due to home conditions, of which the respondents' management per- sonnel had prior knowledge or notice, none of the affected employees was in a 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD position to work during the shift hours to which she was transferred." Meaney and Scanlon advised Carter that they could not accept the shift change; Mer- cer, who was with Scanlon, made no comment Carter's only response was that they see Hepfer. Meaney alone attempted to communicate with Hepfer. Meaney testified, and it is found, that she telephoned Hepfer, advised him that she could not work on the midnight shift, and inquired if he had anything else to offer her, and that Hepfer replied that he had not 14 Meaney, Scanlon, and Mer- cer declined to accept the shift transfers and did not thereafter report for work. (c) The respondents reassigned Dan Dortone from a machine operator's job to the job of chip puller, a laborer's job which involved heavier and more un- pleasant and arduous work. Dortone was first notified of the job change shortly after he reported for work on May 15. Although nothing was said about a reduction in pay at that time, Dortone, who had started in the respondents' employ as a chip puller some 2 years before and had later been promoted to a machine job with a raise in pay, viewed the job change as a.demotion, as in fact it was, declined to accept it, and quit his employment instead. Thus, on May 15, 1946, the respondents by means of discharge action, shift transfers, or job reassignment, effected a substantial change of status with respect to the tenure and terms and conditions of employment of 7 of the 8 union mem- bers who had attended the union meeting 2 days earlier. No other employee was affected by a change of status that day, nor, for that matter, during that weekly pay-roll period 10 F. The respondents' contentions concerning the discharges and transfers on May 15, 1915, and analysis of evidence relating thereto It is the respondents' contention that each of the discharges and transfers on May 15, 1945, was motivated by a good and sufficient reason wholly unrelated to the affected employee's union membership and activity Hepfer testified that he personally directed each discharge and transfer. Hepfer's explanation as to why he selected each of the complainants (and no others) will be considered below. In the interests of convenience and orderly arrangement the explana- 38 Meaney testified credibly and without contradiction that when a year previously she had asked Hepfer for a raise, Hepfer had indicated that he would grant it if she would accept a transfer to the midnight shift, and that she had then advised Hepfer that she was unable to do this because it was necessary for her to be at home at 4 a. in to get her son off to work ; and that the same reason still prevented her from working on the midnight shift. Scanlon's husband was overseas at the time and she had three children who required her presence at home in the evening . It was Scanlon's credited and uncontradicted testimony that Carter, who knew her well at the time, was fully familiar with her home conditions. Mercer's husband , a railroad employee, was a day worker , and it was necessary for her to be home in time to prepare his dinner . Mercer had originally worked on the evening shift for 20 months ; during that period her husband also worked on a late shift. In October, 1944 , when her husband had been changed to the day shift , Mercer had requested that her shift be similarly changed, and Hepfer, who was.personally acquainted with her husband, had granted this request 14 Hepfer denied that Meaney communicated with him. Meaney by her demeanor and by her over-all testimony , which in substantial respects was corroborated by other con- vincing circumstances in the record , impressed the undersigned , as a truthful witness Hepfer did not similarly impress the undersigned His testimony was marked by evasion and a lack of candor, and, as will hereinafter more fully appear, was in many respects improbable and contradictoiy His denial is not credited 'S Hepfer testified at one point that another employee, Lucy Kemmerer , was also laid off on May 15 , 1945 . Kemmerer's pay-roll record disclosed that she had been employed but a few weeks and during that time had been very irregular in her attendance, working only 16 hours during the pay-roll period ending May 15. Subsequently Hepfer altered his testi- mony, and stated that Kemmerer had not been released but had been eliminated from the pay roll on May 15 after having failed to appear for work for a "couple of days " HAROLD IV . BAKER COMPANY 55 tion given as to each individual complainant will for the most part be con- sidered separately. But in finally appraising the merits of the respondents' defenses , a matter which will be reserved for the succeeding section of this report, the several discharges and transfers will be considered, as indeed they must be, not as if each stood in isolation, but each in relationship to the others and all against the back-drop of preceding events as reflected by the entire record of the case. Catherine Gallagher, Hepfer testified when directly questioned on that point, was released for "refusing to work " Hepfer's account of the circumstances which prompted him to release Gallagher was in sharp conflict with Gallagher's version which has been set out in the preceding section of the report. Hepfer's testimony in substance was as follows : Upon arriving at his office on the morning of May 15, he found a note from Ferraris, who had left the plant prior to his arrival, stating simply that Ferraris had sent Gallagher home the previous night and that Gallagher would call on him in the morning to explain what had happened When Gallagher called to see hum on May 15, he asked her what had caused Ferraris to send her home Gallagher declined to tell him, stated, "You might as well pay me off because I am not going to tell y ou anything about it," and otherwise became "indignant and sassy." Because of her attitude he decided to and did release her forthwith. Before taking this action, he made no effort to determine from Ferraris what had actually occurred the preceding night Beyond his testimony above set forth, Hepfer did not elaborate on his basic assertion that he released Gallagher for "refusing to work " The undersigned was not impressed by Hepfer's testimony as to the circum- stances which led him to release Gallagher. To the extent that it indicated that Gallagher had been sent home by Ferraris the night before, Hepfer's testi- mony was contradicted not only by Gallagher but also by Ferraris who admitted that Gallagher, following her reprimand by Ferraris for engaging in union solicitation, had been told to and did return to her job Hepfer's testimony (as well as that of Ferraris) that Ferraris, without otherwise communicating with him, had left him a note that Gallagher would call on him to explain what had happened but had made no mention in the note itself of the incident which led to this unusual action is, on its face, inherently implausible. More- over, Hepfer's assertion that Gallagher's statements and "indignant and sassy" attitude during their interview initiated his determination to release Gallagher is wholly incompatible with the fact, not otherwise explained by Hepfer, that Gallagher's time card, like the cards of the two other complainants released that day allegedly for lack of work, had been removed from its rack in advance of the interview which Hepfer now says prompted his discharge decision. By her demeanor and over-all testimony, Gallagher, unlike Hepfer, impressed the undersigned as a trustworthy witness . Under all the circumstances , the under- signed credits Gallagher's testimony as to her conversation with Hepfer and finds that the only reason asserted by Hepfer at the time of her release was that she was being laid off for lack of work, a reason the validity of which the respondents made no attempt to support at the hearing. Helen Vogt and Joseph Haggetty,16 according to Hepfer, were released because their services were no longer required. Hepfer's reasons (as related by him while 36 Vogt, who prior to her discharge was engaged principally in the operation of a tapping machine, and IInggerty, who worked as it maintenance man and general helper, were among the approximately 15 part-time employees in the plant at that time Vogt worked regularly between the hours of 6 p. in. and midnight ; I-Iaggerty, who had another daytime job, worked during irregular hours in the evening. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testifying) for selecting Vogt and Haggerty for lay-off were shifting, obscure, and confusing. At one point Hepfer testified that these lay-offs were attributable to a conveyer system and new machines which the respondents were then in the process of installing for the purpose of speeding up their production quota. But Hepfer's testimony failed to show specifically how the installation of the new equipment directly affected the work in which Vogt and Haggerty were then engaged. On the contrary, his own testimony indicated that the added equipment did not eliminate the operation of the machines to which Vogt was assigned or the maintenance work which Haggerty performed. At another point in his testimony, Hepfer assigned an entirely different reason for Haggerty's lay-off. He stated that Haggerty was released because Meaney's transfer from the afternoon shift dispensed with the respondent's need for Haggerty's services But here again the connection was not made clear, for Haggerty's work was primarily that of a maintenance man and general helper and only occasionally did he assist Meaney in the performance of her work. Elsewhere in his testimony, Hepfer asserted that Vogt and Haggerty were released pursuant to a plan placed in operation at that time to reduce labor costs by eliminating surplus employees. In that respect his testimony was inconsistent with earlier testimony given by him wherein he had conceded that the respondent's principal problem during that period, because of acute turn-over and manpower difficulties, was to acquire competent employees rather than dispose of them. Moreover, the respondents' records show that during the month of May the respondents hired 11 employees," that its pay roll (reflecting its labor costs) for the weekly period ending May 15 was higher than for the preceding week, and that although it decreased during the succeeding week (after the 7 employees named in the complaint were separated), it thereafter continued to rise steadily until the middle of June, and was generally higher in June than it was in May. Nor did Hepfer otherwise give a consistent explanation for his particular selection of Vogt and Haggerty from among other part-time eiployees for force reduction. When first specifically questioned on this point, Hepfer said he selected them because they were not "dependable 100 percent," but later he altered his testimony in that respect, denied that he had testified that Vogt was not dependable, and asserted that Vogt (a machine operator) and Haggerty (a maintenance man) were selected because they were the only part- time employees in the inspection department on the evening shift. According to Hepfer, his decision to release Vogt and Haggerty was made several days or a week prior to May 15. Yet he did not explain why they were required to report for work on May 15 before being advised that they had been laid off, instead of being notified in advance, at least at the close of their shift on the preceding day.'e As to Florence Mercer and Pauline Scanlon, Hepfer's testimony as to his reasons for transferring them from inspection work on the day shift was likewise garbled, conflicting, and clouded in obscurity. Hepfer testified variously that the transfers were decided upon, (a) because a bottleneck caused by employee dissension had developed on the inspection line where they had been working, (b) because defective work was getting through the inspection table and it was deemed desirable that Mercer and Scanlon as "old employees, capable of doing any job in that plant in inspecting" sit at the head of the inspection table where they could cull out defective work before it reached the Navy table, and (c) because it was desired to effect a proper balance in the number of inspectors on each shift. Hepfer did not explain, nor is it otherwise apparent from the record, why it was necessary to transfer Scanlon and Mercer to another shift to correct 17 During the same period there were 12 separations in addition to those involved in this case. According to Hepfer all but 4 of them were voluntary terminations is Their regular work week would have terminated at the end rather than the beginning of their May 15 shift. HAROLD W. BAKER COMPANY 57 the conditions described by him in (a) and (b) above. Moreover, notwithstand- ing his assertion that the shifts were in a state of unbalance, Hepfer testified that after Scanlon and Mercer had quit rather than accept a shift change, he found it unnecessary to and did not transfer any other inspector to the evening shift. Both Mercer and Scanlon were among the oldest employees in the respondents' employ and were admittedly highly competent inspectors, for whom work was available at the time on the day shift. As noted above, it was Hepfer's usual policy at the time to take into account and to respect his employees' desires as to shift assignments. Nevertheless, Hepfer offered no explanation for his omission in this instance to consult in advance with Scanlon and Mercer concerning their proposed shift change, a circumstance particularly significant in view of the fact, found above, that their home conditions precluding them from working during the evening hours were then known to the respondents' management. As to Anna Meaney, Hepfer offered no reason to support her transfer to the midnight shift. Instead, he gave an elaborate explanation for her transfer to the day shift Hepfer testified that he, through Inspection Forelady Carter, directed Meaney's transfer from the magniflux inspection operation on the afternoon shift to a similar operation on the day shift because it had been deter- mined to discontinue the use of the magnifiux on all but the day shift. As already noted, it was Meaney's testimony that she had been ordered transferred not to the day shift but to the midnight shift Carter, although at first corroborat- ing Hepfer fully, and testifying that she had instructed Meaney to report to the day shift, later contradicted her earlier testimony and admitted that in fact she had told Heaney to report on the midnight shift. Carter's explanation that she had misunderstood Hepfer's instructions (which she still maintained called for Meaney's transfer to the day shift) was wholly unconvincing in view of her earlier testimony that Hepfer, at the time he instructed her to transfer Meaney, had "given [her] a complete idea of our new change-over that we had been working on," and the fact that she was the supervisor of inspection on the day shift. Upon all the testimony, including Meaney's credited testimony concerning her conversation with Hepfer following her transfer order, heretofore adverted to, the undersigned is persuaded and finds that Carter did not misunderstand but rather carried out Hepfer' s instructions in advising Meaney to report to the mid- night shift. Meaney was one of the respondents' oldest employees and was qualified to perform a number of jobs other than the magniflux operation. Yet Hepter admittedly did not endeavor to ascertain whether she could be placed on some other operation on the second shift, nor did he, as he had done on a previous occasion before she became active in the Union, consult _lleaney as to her desires before attempting to put the shift change into effect, and this notwithstanding the fact already shown, that he was then on notice that she was unable to work the midnight shift. Daniel Dortone, according to Hepfer, was reassigned from his machine opera- tor's job to the common laborer's job of chip pulling because of his poor work.19 i9 Dortone entered the respondents' employ in April 1943 as a chip puller and sometime thereafter was promoted to a machine operator 's position with an accompanying raise in wage rate The record does not clearly fix the date of Dortone' s transfer to a machine operator's job. Dortone testified that he had been engaged in chip pulling 8 months and as a machine operator for 2 years, a total period greater than his period of employment Hepfer testified at one point that Dortone had pulled chips full time for not more than 2 or 3 months , elsewhere in his testimony stated that Dortone had worked on a machine only a month or two, and at a third point indicated that Dortone had been on the machine operation for at least 6 months George Stein, a Navy inspector and a witness for the respondent , indicated in his testimony that Dortone operated a machine for a period "over 8 months" while Stein was stationed with the respondents. Upon all the evidence, it was found that Dortone was a machine operator for more than 8 months. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record shows that Dortone was not a skilled machine operator, that he produced a high percentage of scrap, and that on occasions in the past lie had been reprimanded by his supervisors for leaving his machine and for having too many rejects. But the record also shows that the respondents had scarcely any experienced machine operators in their employ at that time and that work on the machine operations generally, including that of the employee who operated Dortone's machine on the opposite shift, was generally running badly and causing a substantial rate of rejects. Hepfer admitted that he had no particular person in mind to replace Dortone when he directed Dortone's transfer to chip pulling; Dortone's position was in fact filled by an employee who theretofore had per- formed chip pulling and general labor work Dortone's alleged delinquencies and shortcomings as a machine operator were not of recent origin ; Hepfer testified that the poor work for which Dortone was demoted consisted of "doing the same thing he had been doing for the last six,months " In the past Dortone's delinquencies had always been condoned More than a month prior to his demotion Dortone had had trouble with a supervisor who had requested his dismissal, but Hepfer at that time had refused to accede to this request and had instead transferred Dortone to other supervision. Since the question to be determined is not why Dortone's demotion might have been justified but what in fact induced the respondents to take this action, it is relevant to inquire into the immediate circumstances which prompted IIepfer to determine to transfer Dortone on the very day which he also selected to effect a change of status of six other union members and no others As to this there is a conflict of testimony. It appears from Dortone's testimony that nothing unusual occurred at that time; that Dortone simply reported for work on the afternoon of May 15, was met by Ferraris and told to transfer to a chip pulling job, and that Ferraris at that time not only made no mention of the quality of Dortone's work but refused when requested to give any reason for the transfer Although Hepfer's .testimony on this point, as on many others, was generally evasive, he testified, when pressed for particulars, that Ferraris had had some trouble with Dortone during the night shift of May 14; 20 that when Hepfer arrived in the plant early in the morning on the 15th, Ferraris, who with Dortone had remained overtime, reported to Hepfer his difficulties with Dortone- and advised Hepfer that he would no longer tolerate Dortone on his shift ; that Hepfer thereupon and in the presence of Ferraris notified Dortone that he would have to resume his former job as a regular chip puller; that Dortone said he would not accept the job "and that was the end of it " Hepfer's testimony concerning his conversation with Ferraris and Dortone on the morning of May 15 was directly contradictory to other testimony which he gave in seeking to justify the release of Gallagher 2i Moreover, Hepfer's testimony was substantially impeached by Ferraris who in the main corroborated Dortone's version of what happened Ferraris testified that it was he, and not Hepfer, who notified Dortone to change to chip pulling work and that he did this on the specific instructions of Hepfer first given to him when he arrived at the plant for the evening shift on May 15. Ferraris, a witness obviously friendly to the respondent, made no mention in his testimony of any incident the night before Under all the circumstances the undersigned concludes that the testimony of Hepfer set out above is not worthy of belief, and finds that Hepfer's determination to transfer Dortone on May 15th was not prompted by any specific occurrence related to Dortone's woik 20 Hepfer, when asked to describe the "trouble," became vague, indefinite and evasive. 21 Then Hepfer testified that he did not see Ferraris at all on the morning of May 15, Ferraris having left the plant before Hepfer had arrived. Ferraris' testimony was to the same effect. HAROLD W. BAKER COMPANY G. Conclusions as to discrimination 59 Deriving added import from the respondents' earlier conduct reflecting an attitude of opposition to the Union, the respondents' selection for discharge and transfer on a single day of seven employees (and no others), whose only common denominator appears to be their union membership and the fact that they were among the eight employees who had attended a union meeting 2 days before, looms as the most significant factor in appraising the respondents' motive. Either the presence of this common denominator must be explained on the basis of coincidence or it must be explained on the basis of a definite relationship be- tween the choice and the union membership and activities of those chosen. The mathematical possibility that the selection of the seven bore no relationship whatsoever to their common interest in the Union and their joint attendance at the meeting, but resulted rather from the operations of chance, is exceedingly remote.' And while this possibility, however remote, may not be ignored alto- gether, the mathematical improbability that union affiliation was disregaided as a relevant factor in the choice is so great in this case as to cast the burden upon the respondents to come forward with a plausible, adequate and con- vincing explanation demonstrating that the action taken by them with respect to each affected employee was based solely upon non-discriminatory consid- erations:' This the respondents have not done. As found above, Gallaghei's termination was defended by the respondents upon a ground entirely different from that stated to her at the time of her lay-oft, and one, moreover, which the under- signed finds to be unsupported by the weight, of credible evidence. Hepfer's shifting and contradictory account as to his reasons for laying oft Vogt and Haggerty at a time when the respondents were suffering from an acute manpower shortage lacked the clarity of conviction and impressed the undersigned as a contused effort to probe for some legal excuse to rationalize the ,action taken rather than as a forthright statement of position. Furthermore, the validity of the claim that these two employees were laid off for "lack of work" becomes even more dubious when it is considered that the same reason, clearly proved to be specious, was stated at the time of her lay off to Gallagher who, like Vogt and Haggerty, was given no advance notice of the lay-off until after she reported to work on May 15 only to find her time card missing, a circumstance persua- sively tending to refute Hepfer's testimony that the decision to lay off Vogt and Haggerty was made before the union meeting. For the reasons already indi- cated, the respondents' contused and conflicting explanations for the shift trans- fers of Mercer, Scanlon, and Meaney do not stand the test of close scrutiny- Had the respondents' motive in effecting these shift changes been legitimate, it is difficult to believe that they would have risked the loss of these old, experienced, and admittedly valuable employees by effecting the shift transfers without first consulting the affected employees. That the respondents' motives were other than legitimate is underscored by the fact that the respondents were then on ^ At that time the respondents employed approximately 85 production and maintenance employees On the basis of pure chance , eliminating all other factors , the possibility of selecting in a plant of 85 on any given day 7 of only 8 employees who had attended a union meeting , and no others, is comparable to that of a blindfolded person selecting at random 7 blue marbles in succession from a bowl containing 85 marbles of which 77 are white and 8 blue. The mathematical possibility of such selection, computed on the basis of the applicable formula , would be one chance in 616,980,915. See Mills Statistical Methods, Henry Holt & Company, New York, 1924, p. 518 "The Multiplication of Piob- abilities " 23 See N L. R. B. V. Chicago Steel Foundry Co , 142 F. (2d) 306 (C C. A. 7) ; Mont- gomery Ward & Co , Inc. v. N. L. R. B., 107 F. ( 2d) 555 (C. C. A. 7) , N. L. R. B. v. Bachel- der, receiver for Hoosier Veneer Company , 120 F. ( 2d) 574 (C. C. A. 7). 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice of the employees' home conditions as well as the further fact that the summary action taken represented a departure from the respondents' personnel policy to discourage employees from leaving, among other ways, by removing sources of dissatisfaction as to shift assignments. Although the quality of Dortone's work might have been such as to justify the respondent in demoting him, the question here is whether the respondents actually were motivated by that consideration rather than by his union affiliation. Upon all the evidence, the undersigned is convinced that the reason asserted by the respondents at the hearing was a pretext rather than the true reason for the demotion, and that the respondents were in fact prompted in their action with respect to Dortone by the same motives which prompted them to act with respect to the other com- plainants that day. Persuasive in that connection are the timing of the demo- tion in, relationship to the action taken with respect to the other complainants, the fact that Hepfer admittedly had no qualified replacement in mind when he decided to remove Dortone from the machine operation, the circumstance that Dortone's shortcomings were of long duration and had in the past been condoned, and, finally, the failure of the respondents to give any reason for selecting that particular day to demote Dortone other than a reason which the record unmis- takably shows to be unworthy of belief With respect to each of the complain- ants, Hepfer's testimony, it is found, was not such as to invite credence, and the reasons asserted by him with respect to each of the discharges and transfers are not credited Nor does the undersigned regard as credible Hepfer's testimony that it was not until about 5 days after May 15th that he first learned that the complainants had attended a union meeting at Ardmore the preceding Sunday. Just as the factors discussed above render extremely improbable any conclusion that there was absent a relationship between the choice of employees selected for transfer or lay-off and their attendance at the meeting, so, too, do the same factors make highly unreasonable a finding that Hepfer was unaware of the fact of attendance at the time he directed the lay-offs and transfers. Moreover, since, as found above, the union meeting of May 13 was made a topic of general discussion in the plant on the following day, it is more likely, in view of the circumstances under which Hepfer testified he carne to know about the meeting, that Hepfer acquired knowledge of it a day rather than a week later. Hepfer testified that lie learned of the meeting through general conversations with his employees with whom he ate lunch ; he admitted that his contact with his employees was such that what his employees would know about the shop he would know, and that if the employees had knowledge of union activities he would in the normal course of events also know about it. But the finding, herein made, of knowledge on Hepfer's part anteceding the transfers and lay-offs need not and does not rest upon inference alone. More direct proof is supplied by the statement made by Forelady Carter to Loretta Dunbar Gallagher shortly before the transfers and lay-offs to the effect that "Len [Hepfer] knows everyone that was there [at the meeting]," a statement which Carter did not deny making and the respondents made no effort to explain. In view of the respondent's failure satisfactorily to explain its action on any other basis and in light of the respondents' previously manifested antipathy to- ward the Union, and their prior course of conduct designed to interfere with the self-organizational plans of their employees, the undersigned is convinced, and he finds, that the lay-off of Gallagher, Vogt, and Haggerty-, the shift transfers of Mercer, Scanlon, and Heaney, and the demotion of Dortone were all motivated by discriminatory considerations. It is further found, in view of all the cir- cumstances, that the termination of employment of Gallagher, Vogt, and Hag- HAROLD W. BAKER COMPANY 61 gerty, although characterized as lay-offs, were in effect tantamount to discharges Contrary to the respondents' contention indicated in their answer, it is found that Mercer, Scanlon apd Meaney, who were transferred to shifts on which they were unable to work, and Dortone, who was demoted to less desirable and more arduous work, did not voluntarily discontinue their employment services with the respondents. The shift transfers and demotion in each case were effected by the respondents upon a disci minatory basis. Under the circumstances the rejection by the affected employees of the new shift or job assignments was justi- fied as a refusal to acquiesce in the respondents' disc rinminatory action, and, accordingly, did not operate as a voluntary termination of employment It is found that the respondents on May 15, 1945, by terminating the employ- ment of Catherine Gallagher, Helen Vogt, and Joseph Haggerty, by transferring Florence Mercer, Pauline Scanlon, and Anna Meaney from their regular work shifts to other work shifts, thereby causing them to terminate their employment, and by demoting Dan Dortone and assigning him to different and less desirable work, thereby causing him to terminate his employment, discriminated with respect to their hire and tenure of employment and the terms and conditions of their employment, thereby discouraging membership in the Union and inter- fering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents set forth in Section III, above, occurring in connection with the operations of the respondents described in Section I, above, have a close, intimate, and substantial ielation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the respondents have violated Section 8 (1), (2), and (3) of the Act, the undersigned will recommend that they cease and desist therefrom and take certain affirmative action, which the undersigned finds necessary to effectuate the policies of the Act. It has been found that the respondents have dominated and interfered with the formation of the Committee and have contributed support thereto. The effects and consequences thereof, as well as any continued recognition of the Committee as the bargaining representatives of the respondents' employees, con- stitute a continued obstacle to the free exercise by the respondents' employees of their right to self-organization and to bargain collectively through representatives of their own choosing Because of the respondents' illegal conduct with regard to the Committee, it is incapable of serving the respondents' employees as a genuine collective bargaining agent. While it is true that the Committee has not functioned since about May 1945, it has nevertheless never been dissolved, and in the eyes of the employees may still be viewed as the recognized exclusive bargaining agent. Since this situation is obstructive to the free exercise by the employees of the rights guaranteed to them by the Act, the undersigned will recommend that the respondents withdraw all recognition from the Committee as the representative of any of their employees for the purpose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish the Committee as such representative. 11 Indeed , the respondents' answer admits that these employees were "dismissed." 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has been found that the respondents discriminated in regard to the hire and tenure of employment and terms and conditions of employment of Catherine Gallagher, Helen Vogt, Joseph Haggerty, Pauline Scanlon, Florence Mercer, Anna Meaney, and Dan Dortone. It will be recommended that the respondents reinstate them to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and that the respondents make them whole for any loss of pay they may have suffered by reason of the re- spondents' discrimination against them by payment to each of them of a sum of money equal to the amount he normally would have earned as wages during the period from the date of discrimination to the date of the offer ot reinstate- ment, less his net earnings zr; during said period. As has been found above, the respondents have employed divers illegal methods, including domination and interference with the formation of a labor organization, discriminatory transfers and discharges, and other intimidatory conduct in furtherance of a general effort to frustrate and discourage union organization by their employees The varying methods employed by the respondents disclose a propensity and a determination on the respondents' part to engage in persistent efforts, although not necessarily by the same means, to continue to defeat self- organization by their employees Because of the respondents' unlawful conduct and its underlying purpose, the undersigned is convinced that the unfair labor practices committed by the respondents are related to other unfair labor prac- tices proscribed and that danger of their commission in the future is to be anticipated from the respondents' conduct in the past The preventive purposes of the Act will be thwarted unless the recommended order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby mini- mize industrial strife which burdens and obstructs coimmnerce, and thus effectuate the policies of the Act, it will be recommended that the respondents be ordered to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. CONCLUSIONS or LAw 1 Local No. 155 , United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, and the Employee Representation Committee, referred to above, are each a labor organization within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation of, and contributing support to, the Employee Representation Committee, the iespondents have en- gaged in and are engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act 3 By discriminating in regard to the hire and tenure of employment and terms and conditions of employment of Catherine Gallagher, Helen Vogt, Joseph Hag- gerty, Pauline Scanlon, Florence Mercer, Anna Heaney, and Dan Dortone, thereby discouraging membership in Local No 155, United Electrical Radio & Machine Workers of America, C I 0, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 26 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 respondents , 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 It 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. HAROLD W. BAKER COMPANY 63 4 By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the nuclei signed recommends that Harold W Baker, Jr., Leonard E. Hepfer, Kathleen B Starr, and Paul Bakewell, III, co-partners, doing business as Harold W. Baker Company, Bryn Mawr, Pennsylvania, and their agents, successors, and assigns shall: 1. Cease and desist from : (a) Dominating and interfering with the formation or administration of, or contributing financial or other support to, Employees Representation Com- mittee or any other labor organization of their employees; (b) Recognizing Employees Representation Committee as the representative of any of their employees for the purpose of dealing with the respondents con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment ; (c) Discouraging membership in Local No. 155, United Electrical, Radio & Machine Workers of America, C. I 0., or any other labor organization of their employees, by discrimination in regard to hire or tenure of employment or any term or condition of employment; (d) In any other manner interfering with, restraining, or coercing their employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist Local No. 155, United Electrical, Radio & Machine Workers of America, C. I 0, or any other labor organization, to bargain col- lectively 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. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Withdraw all recognition from and completely disestablish Employee Representation Committee as the representative of any of their employees for the purpose of dealing with the respondents concerning grievances, labor disputes, wages, rates of pay, bouts of employment, or other conditions of employment; (b) Offer to Catherine Gallagher, Helen Vogt, Joseph Haggerty, Pauline Scanlon, Florence Mercer, Anna Meaney, and Dan Dortone immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges ; (c) Make whole Catherine Gallagher, Helen Vogt, Joseph Haggerty, Pauline Scanlon, Florence Mercer, Anna Meaney, and Dan Dortone for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of tliein of a stun of money equal to an amount determined in the manner set forth in the section entitled "The remedy" above; (d) Post at their plant at Bryn Mawr, Pennsylvania, copies of the notice attached to the Intermediate Report herein, marked "Appendix A " Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by the respondents' representative, be posted by the respondents immediately upon receipt thereof and maintained by them 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 respondents to insure that said notices are not altered, defaced, or covered by any other material ; 717734-47-vol. 71-6 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) File with the Regional Director for the Fourth Region on or before ten (10) days from the date of the receipt of this Intermediate Report a report in writing setting forth in detail the manner and form in which the respondents have complied with the foregoing recommendations It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondents notify said Regional Direc- tor in writing that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing, setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of ex- ceptions 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. ARTHUR LEFF, Trial Examiner. Dated June 19, 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 hereby disestablish Employee Representation Committee as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. We will not dominate-or interfere with the formation or administration of any labor organization or contribute financial or other support to it. We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Catherine Gallagher Florence Mercer Helen Vogt Anna Meaney Joseph Haggerty Dan Dortone Pauline Scanlon HAROLD W. BAKER COMPANY 65 We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local No. 155, United Electrical, Radio & Machine 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. All our employees are free to become or remain members of this union, or any labor organization. We will not discriminate in regard to hire or tenure of employ- ment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. HAROLD W. BAKER COMPANY, 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.