Meyer & Welch, Inc.

236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees and can recommend that employees in their departments be transferred or discharged, the ultimate authority in these respects is in the personnel office. A central accounting department performs payroll and accounting services for the entire plant. And there have been some transfers, of employees between the lens production and lens development engineering divisions and other departments of the plant 10 Under all the circumstances, including the integrated nature of the Employer's operations, the character of the work performed by the requested employees, the centralized management control, and the similar employment conditions of all the plant employees, we believe that a unit limited to the employees of the lens production and lens development engineering divisions is inappropriate.- The only ground for such ,a unit, in our opinion, is the extent of the Petitioner's organization, which the Act provides shall not be controlling.12 Ac- cordingly, we shall dismiss the petition. - Order IT. IS HEREBY ORDERED that the instant petition be, and it hereby is, dismissed. 10 Within the last year, there have been about 58 transfers in or out of the requested unit. 11 Flora Cabinet Company, Inc., 94 NLRB 12; Standard-Coosa-Thatcher Company, 80 NLRB 50. Cf. Sol Baum and Julie Baum, a Co-partnership, 91 NLRB 708. '12 Section 9 (c) (5). - MEYER & WELCH, INCORPORATED and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, (UAW-CIO) , REGION 6 and INTERNATIONAL Asso- CIATION OF MACHINISTS, LODGE 1186, PARTY TO THE AGREEMENT. Case No. 21-CA-973. September 20, 1951 Decision and Order On May 31, 1951, Trial Examiner Irving Rogosin issued his In- termediate 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 be ordered to cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respond- ent filed exceptions 1 to the Intermediate Report and a supporting brief. The Respondent's request for oral argument is denied, inasmuch as the record, including the exceptions and brief filed herein, ade- quately sets forth the issues and the contentions of the parties. I These exceptions were limited' to that portion of the Intermediate Report relating to the discharge of Eldon Clark. 96 NLRB No. 49. MEYER & WELCH; INCORPORATED .237 The Board 2 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, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recolnmendations, of the Trial Examiner. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Meyer & Welch, Incorporated, Vernon, California, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Encouraging membership in International Association of Ma- chinists, Lodge 1186, or discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, UAW-CIO, Region 6, or any other labor organization, by discriminatorily transferring or discharging any of its employees, by discriminatorily denying them any wage increase which, but for their union activities, they would otherwise have been granted, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. (b) Discriminating against any of its employees for giving testi mony under the Act. (c) Interrogating, threatening, and engaging in reprisals against, employees because of their opposition to International Association of Machinists, Lodge 1186, and in any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Inter- national Union, United Automobile, Aircraft and Agricultural Im- plement Workers of America, CIO (UAW-CIO) Region 6, or any other labor organization, to bargain collectively through representa- tives 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, or to refrain from any or all such activities, except to the extent that such right may be affected Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in respect to this case to a three-member panel [Members Houston, Reynolds, and Styles]. 8 Although the Trial Examiner found, in his discussion of the discharge of Eldon Clark, that Welch's secretary, Burroughs, admitted that Welch indulged in profanity in her presence, the record shows only that she testified that certain supervisory employees used profanity in her presence. However, this discrepancy does not affect the validity of the Trial Examiner's ultimate conclusion that Clark was discriminatorily discharged, or our concurrence therein. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer Eldon Clark immediate and full reinstatement to the position which he held immediately preceding the Board hearing in June 1950, or to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. - (b) Make whole the said Eldon Clark, and Ann Barnett, Dora Ellis, Odean Jenkins, Lela Lea, and Hobert R. Taylor in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay they may have suffered by reason of the Respondent's discrimination against them. (c) Upon request make available to the Board or its agents for examination and copying all payroll records, social-security payment records, time cards, personnel records, and reports, and all other records necessary to determine the amounts of back pay and the right of reinstatement under the terms of this order. (d) Post at its plant in Vernon, California, copies of the notice attached hereto and marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent or its duly authorized representatives be posted by the Respondent immediately upon re- ceipt thereof, and maintained by it for a period of sixty (60) con- secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-first Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. It is further ordered that the amended complaint be dismissed, inso- far as it alleges that : - 1. The Respondent caused Dora Ellis and Odean Jenkins to resign on or about January 23, 1951, thereby discriminating in violation of Section 8 (a) (3) of the Act. 2. The Respondent discriminated against Ann Barnett on April 10, 1951, by transferring her from the position which she held prior to the hearing, in violation of Section 8 (a) (4). ' 4 If the Order is enforced by a decree of a United States Court of Appeals , the notice shall be amended by inserting before the words "A Decision and Order" the words "A Decree of the United States Court of Appeals Enforcing." MEYER & WELCH, INCORPORATED Appendix A NOTICE TO ALL EMPLOYEES 239 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 encourage membership in INTERNATIONAL Asso- CIATION OF MACHINISTS, LODGE 1186, or discourage membership in INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO (UAW-CIO), REGION 6, by discriminatorily transferring or discharging any of our employees or discriminating in any other manner in regard to the hire or tenure of employment or any term or condition of employment of our employees. WE WILL NOT discriminate against our employees for giving testimony under the Act. WE WILL NOT interrogate, threaten, or engage in reprisals against our employees because of their opposi- tion to INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 1186, or their allegiance to INTERNATIONAL UNION, UNITED AuTOMo- BILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO (UAW-CIO), REGION 6, or in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR- CRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO (UAW-CIO), REGION 6, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer Eldon Clark immediate and full reinstatement to the position which he held immediately preceding the Board hearing-in June 1950, or to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suf- fered as a result of the discrimination against him. WE w7T•T. make whole Ann Barnett, Eldon Clark, Dora Ellis, Odean Jenkins, Lela Lea, and Hobert R. Taylor for any loss ,of pay suffered as a result of the discrimination against them because of the denial or withholding of the wage increase granted other employees, effective January 8, 1951. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent stated above. We will not discriminate in regard to the hire and tenure of employment or terms and conditions of employ- ment of any employee because of membership or activity, or absence of such membership or activity, with regard to any labor organization, except to the extent stated above. MEYER & WELCH, INCORPORATED, Employer. Dated-------------- By ------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE This complaint, based upon a charge filed December 11, 1950, and a first amended charge filed on January 23, 1951, by International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, CIO (UAW- CIO), Region 6, herein referred to as the UAW-CIO, was issued on March 9, 1951, by the General Counsel of the National Labor'Relations Board, herein called the General Counsel and the Board, respectively; by the Regional Director for the Twenty-first Region (Los Angeles, California), against Meyer & Welch, Incorporated, Vernon, California, herein called the Respondent. The complaint alleges that the Respondent has engaged in and is engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (a) (1), (2), (3), and (4) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as amended by the Labor Management Relations Act, 61 Stat. 136, herein called the Act. Copies of the complaint, the charge, first amended charge, and the notice of hearing thereon were duly served upon all the parties. Specifically, the complaint, as amended during the hearing, alleges in substance that the Respondent, since on or about July 1, 1950: (1) By discriminating in regard to the terms and conditions of employment of, and refusing to grant wage increases to certain- named employees' because it regarded them adherents of the UAW-CIO and, as to certain of them,' because they had given testimony at a prior hearing before the Board involving the Respondent; attempting to interfere with the employees' free choice of union affiliation ; urging, persuading, and warning its employees to affiliate with the International Association of Machinists, Lodge 1186, herein called the IAM, rather than with the UAW-CIO ; and refusing to permit them to revoke dues- checkoffs in favor of the IAM, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. (2) On or about January 23, 1951, caused Dora Ellis and Odean Jenkins to resign from the Respondent's employ because of their adherence to the UAW- CIO and their refusal to support the IAM, thereby discriminating in regard to i Except as otherwise stated or required by the context, the designation General Counsel hereinafter refers to his representative at-the hearing. 2 Ann Barnett, Eldon Clark, Dora Ellis, Odean Jenkins, Lela Lea, and Hobert Taylor. sAnn Barnett, Eldon Clark,-Dora Ellis, and Odean Jenkins. MEYER & WELCH, INCORPORATED 241 hire and tenure and terms or conditions of employment, encouraging member- ship in the IAM, and discouraging membership in the UAW-CIO, in violation of Section 8 (a) (3). (3) Since June 30, 1950, the date of the close of the hearing in Meyer d Welch, Incorporated, Case No. 21-CA-697, in which the Board issued its Decision and Order on October 19,• 1950, has continued in full force and effect a collective bargaining agreement with the IAM, which the Board found had been obtained by means of unlawful assistance and support to the IAM, and has, by said conduct and by the various acts and conduct described above, continued to render unlawful assistance and support to said IAM, in violation of Section 8 (a) (2). (4) On April 10, 1951, while the instant hearing was in progress, discharged and thereafter refused to reinstate Eldon Clark because it believed he was an adherent of the UAW-CIO, and for the further reason that he had given testi- mony in the instant hearing, thereby discriminating in regard to his hire and tenure of employment, in violation of Section 8 (a) (3) and (4) of the Act.' (5) By the foregoing conduct, has, engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1), (2), (3), and (4), thereby interfering with, restraining, and coercing employees in the exercise of, or failure to exercise, the rights guaranteed in Section 7, in violation of Section 8 (a) (1) of the Act. In its answer filed March 23, 1951, the Respondent admits the material allega- tions of the complaint regarding the nature and extent of its operations, the status of the UAW-CIO and the IAM as labor organizations, and the issuance of the Board's Decision and Order, above mentioned, but denies generally the remaining allegations of the complaint, and the commission of unfair labor practices. Pursuant to notice, a hearing was held at Los Angeles, California, from April 9 to 11, 1951, inclusive, before the undersigned duly designated Trial Examiner. The General Counsel, the Respondent, and the UAW-CIO, were represented by their respective counsel ; the IAM by a lay representative. All parties partici- pated in the hearing, the IAM to the extent hereinafter indicated. Full oppor- tunity was afforded them to be heard, to examine and cross-examine witnesses, and to introduce evidence relevant and material to the issues involved. With the introduction of the formal documents, the IAM representative, with- out objection, stated formally on the record that on April 3, 1951, the IAM, over the Respondent's objection, had caused to be posted on a bulletin board at the plant a notice to the Respondent's employees renouncing the union's claim to represent them, and asserting that it would not claim to do so in the future unless selected as their bargaining representative in a Board-conducted election, al- though it would process individual grievances of employees desiring to remain members. The notice, read into the record without objection, stated that the IAM would refund initiation fees and dues collected by the Respondent since March 4, 1950, to all employees desiring such refund upon the surrender of their membership-books at the union office at specified times. Without admitting any liability under the Act, or any obligation to refund dues deductions, the IAM representative then stated that he had in his possession 167 receipts for refunds of dues to employees who had presented themselves at the union hall in con- formity with the notice. The representative further stated that the JAM was 4 This allegation was added by amendment during the hearing, over the Respondent's objection, when it appeared that Clark had been discharged after he had completed his initial testimony in the instant hearing, and had been excused. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD abandoning the outstanding collective bargaining contract with the Respondent, that it had notified the Respondent to make no further dues deductions in favor of the IAM, and that it had no further interest in the proceedings, except in the event an election was ordered by the Board, and thereupon withdrew from the proceeding. At the close of the evidence, the General Counsel and the Respondent argued orally on the record.. Advised of their right to file briefs, and proposed findings of fact and conclusions of law, the Respondent filed a brief with the under- signed on April 25, 1951, and the General Counsel, a "memorandum of points and authorities," on April 26, 1951. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Meyer & Welch, Incorporated, a California corporation with its plant at Vernon, California, is engaged in the manufacture and reconditioning of auto- motive parts. During the past 12 months, the Respondent acquired, purchased, and caused to be transported, and delivered in interstate commerce, from and through States of the United States other than the State of California, to its plant in Vernon, California, equipment, materials, and supplies valued in excess of $750,000. During the corresponding period, the Respondent produced and sold products valued at approximately $2,000,000, of which 20 percent was sold and transported in interstate commerce from its plant in Vernon, California, 1 o and through States of the United States other than the State of California. The Respondent, in its answer, concedes that its activities have a close, intimate, and substantial relation to trade, traffic, and commerce among the ' several 'States, but denies that its activities lead or have led to labor disputes burdening and obstructing commerce and the free flow of commerce. The Board has already asserted jurisdiction over the Respondent in the prior proceeding.' The undersigned finds, therefore, contrary to the Respondent's contention, on the basis of the foregoing and upon the entire record, including the record in the earlier proceeding, that the Respondent is engaged in commerce within the meaning of the Act. ° II. THE LABOR ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO (UAW-CIO), Region 6, affiliated with the Congress of Industrial Organizations, herein called the UAW-CIO, and International Association of Machinists, Lodge 1186, herein called the IAM, are labor organi- 7ations admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Introduction The prior unfair labor practice proceeding resulted in a Decision and Order by the Board, issued October 19, 1950, adopting, with a minor exception not here mateiial, the findings, conclusions, and recommendations of Trial Examiner C. W. Whittemore in his Intermediate Report issued August 28, 1950. Finding that the Respondent had supported and assisted the IAM by various specified O Meyer h Welch, Incorporated, 91 NLRB 1102. MEYER & WELCH, INCORPORATED 243 means, including the coercion of employees in selecting the IAM as their ex- clusive bargaining representative, and in signing authorizations for dues deduc- tions in favor of that union, in violation of Section 8 (a) (1) and (2) of the Act, the Board ordered the Respondent, among other things, to cease and desist from giving effect to the collective bargaining agreement dated June 5, 1950, between the Respondent and the IAM, resulting from the unlawful conduct, and from recognizing the IAM as exclusive bargaining representative of the Re- spondent's employees, unless and until certified by the Board. The Respondent was, therefore, ordered to withdraw and withhold recognition from that. union, unless and until so certified, and to reimburse all employees whose initiation fees and membership dues had been deducted from their wages since March 4, 1950.8 The hearing before the Trial Examiner in that proceeding was held from June 27, to ,June 30, 1950, inclusive. Ann Barnett, Eldon Clark, Dora Ellis, and Odean Jenkins, four of the six employees alleged in the instant proceeding to have been subjected to later discrimination, had testified as witnesses for the General Counsel at that hearing. B. Events following the previous Board hearing; diserlnvtnation in regard to hire and tenure of employment' 1. Preliminary statement Eldon Clark had been in the Respondent's employ for more than 5 years at the time of the instant hearing, working in the brake shoe department under the supervision of Foreman Adolph H. Schlager. Except for an incident, men- tioned later, occurring several days before the commencement of the present hear- ing, Clark's work performance had been wholly satisfactory and had at no time been the subject of adverse criticism. No contention is made here that the treatment to which he was later subjected was attributable to unsatisfactory workmanship. " An allegation in the complaint in the former proceeding, that lie had been discriminatorily denied a promotion, was dismissed by the Trial Examiner as not sustained by the preponderance of the evidence and, in the absence of an exception to that finding, the Board adopted the finding and dis- missed the allegation. The Trial Examiner found, however, and the Board agreed, that Lewis W. Welch, president of the Respondent, had threatened to "get" Clark because he had circulated petitions, later submitted to Welch, pro- testing the checkoff of union dues from employees' wages in favor of the IAM. The statement was found by the Board to constitute interference with, restraint, and coercion of employees in violation of the Act. 2. Change in Clark's work assignment As part of its operations, the Respondent reconditions used automobile brake shoes. The brake linings, usually coated with heavy lubricants, dirt, and other accumulations, are removed by means of a machine called a "Wheelabrator," and e Meyer & Welch, Incorporated, supra. Also adopted by the Board, without modification, were the Trial Examiner's findings that the Respondent had rendered unlawful support and assistance to International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL, generally referred to as the Teamsters ' Unless otherwise stated, or indicated by the context, the findings hereinafter made are based on substantially undisputed testimony Wherever conflicts in the testimony exist, the conflicting testimony has been carefully considered, and the resolution made with due regard for the bias and interest of the persons involved , their appearance and demeanor on the witness stand, including their candor or lack of it, and the plausibility of their testimony. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the brake shoes are then deposited in a vat to be cleaned. When this has been done, the brake shoes are tested on jigs, and those which do not fit properly are turned over to a female employee for further work. Prior to the hearing in June 1950, Clark's job had consisted of testing the brake shoes on the jigs. After the hearing, in which he testified as a witness for the General Counsel, Clark was transferred to the job of removing the brake linings from the drums, and cleaning them by means of the "tear down" ma- chine. Except for 1 day, when he was absent because of illness, Clark was con- tinued On the "tear down" job until the present hearing. During the peak season, usually in the spring, it had been the practice at the Respondent's plant to hire a man especially for the "tear down" job. In the slack season the temporary employee would be laid off and the job assigned to the regular employee in the department with the least seniority. Despite the fact that he ranked second in seniority among the three employees in his department, Clark was, nevertheless, transferred to the "tear down" job, after testifying at the hearing in the former case. Furthermore, according to Clark, employees whom the Respondent subsequently brought into the brake shoe department were assigned to the job formerly held by Clark rather than to the "tear down" job. Although the change in assignment resulted in no reduction in wage rate, change in hours of work, or other conditions of employment, the "tear down" job was dirty, disagreeable, more onerous, and less desirable than his former job. President Welch, Personnel Manager Albert E. McKay, and Foreman Schlager testified as witnesses in this proceeding. Yet they were not questioned about, and offered no explanation for the change in Clark's work assignment. Clark's testimony regarding the practice in assigning the "tear down" job is unchallenged. .So far as the record discloses, he was at no time furnished with an explanation for the change in assignment. In view of the Respondent's preference for, and assistance and support to, the 1AM as the bargaining representative of its employees, as found by the Board on the basis of the former hearing ; Clark's vehement opposition to the union of the Respondent's choice, as established in the former, as well as the instant hearing; the Respondent's conviction that Clark, as the principal UAW-CIO adherent, personified employee opposition to the IAM at the plant, and consti- tuted a threat and challenge to the IAM in the contest between the contenders for the role of bargaining representative; President Welch's threat to "get" Clark, as found in the earlier proceeding; the absence of any evidence, or conten- tion, that Clark's work assignment had been changed because of dissatisfaction with his work on his former job, or because of legitimate operating or other business considerations ; the failure to furnish Clark with any explanation for the change, or to offer any explanation or reason therefor at the bearing, the conclusion is irresistible that the Respondent transferred Clark to a more dis- agreeable and onerous job because of his opposition to the IAM, and his adher- ence to the UAW-CIO. It is probably impossible to determine the extent to which the Respondent was also motivated by the fact that he had given testi- mony in a prior Board proceeding. The coincidence of timing in the absence of any explanation for the action taken convinces the undersigned that the testi- mony which he gave at that hearing, in which the extent of his opposition to the union which the Respondent favored had been revealed, was a substantial factor in the motivation for the discriminatory treatment visited on Clark. It is therefore found that, by transferring Clark to the "tear down" job, after he had given testimony under the Act, and because of his opposition to the IAM, and his adherence to the UAW-CIO, the Respondent has discriminated in regard to the conditions of his employment, thereby encouraging membership in the IAM, and discouraging 'membership in the UAW-CIO, in violation of , MEYER,.& WELCH, INCORPORATED 245 Section 8 (a) (3); and that, by discriminating against him because he had given testimony under the Act, the Respondent has violated Section 8 (a) (4) of the Act. Early in July 1950, about a week after the close of the previous hearing, Clark attended a conference at the personnel office in connection with a grievance he had filed on another matter. In addition to Personnel Manager McKay, IAM Business Agent Jack Arnold was present. They were joined soon afterward by IAM International Representative Herbert A. Cooksey and IAM Committeeman Bob Burke. During the discussion, Cooksey suggested, sarcastically, that Clark "5run up to the Board with [his grievance]," as he generally did,-"Go up there and lie." Clark took vigorous exception to the remark, and observed that he had, in effect, been vindicated in the prior hearing. In the recriminations which ensued, Cooksey called Clark "a God damn lying son-of-a bitch." Clark lunged toward him across the table separating the men, but checked himself, testifying that it occurred to him that Cooksey may have been trying to provoke him into a fight to furnish a pretext for Clark's discharge. Addressing Burke, Clark asked if he had heard Cooksey's remark. Cooksey interjected, "I will put it in writing if you want me to." Clark challenged him to do so, but Cooksey ignored him. Finally, Clark said, "Well if that's all you called me up here for, I am leaving." 8 Personnel Manager McKay, although present during the episode, apparently took no part in the altercation, and made no effort to intervene. The incident is significant for the evidence it affords of the intense hostility which existed between the IAM, the beneficiary of the Respondent's favor, and Clark, sharply brought home, once again, to management. During July, August, and September 1950, Personnel Manager McKay took occasion to engage Clark in conversation at his workbench. Once, in July, in the presence of employee Joseph Christena, according to Clark, McKay asked him, "What is the CIO paying you?" Clark replied, "They're not paying me anything." McKay commented, "They should be, you are worth a thousand dollars a week to them." 8 On another occasion, in August, under substantially similar circumstances, and in'the presence of fellow employees, McKay asked Clark what he "wanted out of the deal." Clark replied that he wanted "only a fair deal for everybody concerned." McKay then asked him if he did not realize that Welch would close the plant "if the IAM is kicked out and it goes CIO," and accused Clark of "biting the hand that was feeding" himY" 8 The findings regarding this incident are based on Clark's undisputed testimony. Cook- sey, Arnold, and Burke did not testify, and McKay testified merely that during the episode both Clark and Cooksey indulged in swearing. 9 Although McKay denied generally that he ever made such a statement to Clark, the undersigned does not credit his denial. The statement appears entirely consistent with the Respondent's conviction regarding Clark's role in opposing the IAM. Furthermore, the remarks are consistent with similar remarks attributed to McKay which were undenied. McKay's attitude and demeanor on the witness stand did not inspire credence in his testimony. io Although McKay denied that he had ever told Clark that Welch would close the plant "if the JAM was kicked out," or that Welch had ever threatened to do so, his denial of the statement attributed to him by Clark is not credited. McKay admitted that in casual conversation with a group of employees at a lunch wagon outside the plant, during a rest period, there was some jocular reference to "the goose that laid the golden egg," and "biting the hand that feeds you," but that the connotation had reference neither to the company nor any union. The undersigned finds that McKay did in fact make the remarks attributed to him by Clark on the, occasion in question. This thinly veiled threat of reprisal by a responsible management representative constitutes interference, restraint, and coercion, and it is, therefore, found that by such remarks the Respondent violated Section 8 (a) (1) of the Act. 974176-52-vol. 96-17 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sometime in July 1950 a leaflet was distributed at the plant by the Respondent's plant guards. Bearing the legend, "Mimeographed by Meyer & Welch at the request of a satisfied employee," the leaflet was addressed, "BROTHER CLARK !" and asked, "WHAT IS THE ANSWER TO THE-" followed by a design, in the center, of a large question mark, enclosing a dollar sign, with the numerals 6 and 4 on either side, denoting the "$64 question." The text of the leaflet re- minded Clark that, "Thanks To Mr. Welch," the employees were enjoying steady employment ; that, unlike Clark, most of his fellow workers did not enjoy an income from rental property ; and that if Clark were obliged to rely on his job for his only source of income, he "might talk out of the other side of [his] mouth." Next morning, Personnal Manager KcKay visited Clark, in his department and asked what he thought of the bulletin. Clark remarked that it was "typical" of McKay. McKay assured Clark that he had had nothing to do with the bulletin, with the exception of drawing the design for the "$64 question." Explaining to Clark that he had been drafting plans for Welch's office, McKay said that Welch had brought him a rough sketch of the leaflet, which he had received from an employee. McKay told Clark that Welch had approved of the idea, and had suggested that McKay draft the design for the leaflet." In August 1950, McKay brought IAM Business Agent Arnold to Clark at his machine, and attempted to induce him to shake hands with Arnold. Clark re- fused, saying, "If I shake hands in here in front of all these people they will think I am as crooked as he is." McKay and Arnold thereupon left. While it is con- ceivable that McKay may have been attempting to effect a reconciliation between Clark and Arnold after their altercation in his office in June, it is apparent that Clark assumed, not unreasonably, that this may have been a ruse to create the impression among the employees, who obviously regarded Clark as irreconcilably opposed to the IAM, that he had finally been won over as an IAM adherent. Later that month, on an occasion when Arnold entered the plant from the com- pany offices, Foreman Schlager, according to Clark's undenied testimony, warned Clark that if there were "any catcalls or booing," Schlager would fire him. Asked why, Schlager replied, "Because you will be the instigator of it." 12 This incident, and the various incidents related earlier, including the episode in McKay's office in July 1950, and the facts regarding the preparation and dis- tribution of the leaflet, furnish further evidence, and underscore the Respondent's cognizance of Clark's role as a resolute foe of the IAM, the object of the Respond- ent's continued favor. During the same period, McKay telephoned Clark at his home one evening and, adopting a conciliatory tone, told Clark-that he, McKay, was trying to do his job at the plant, and that as matters stood he and Clark were on opposing sides. In a conversation lasting well over an hour, McKay asked Clark what he wanted "out of the deal out there." Clark reiterated that all he wanted was a "fair deal" for the employees, adding, "As the thing stands now, it is illegal" (obviously referring to the bargaining relationship between the Respondent and the IAM), 11 McKay, in his testimony, denied any part in the preparation of the leaflet. He did not, however, deny Clark's testimony regarding the discussion with him the morning after the leaflet was distributed. To the extent that McKay's denial of any part in the prepara- tion of the leaflet may have been intended as a denial of any encounter with Clark next morning or of the conversation with Clark, the denial is not credited. Clark's account of the conversation is too replete with detail, and too plausible, to be rejected in favor of McKay's bare denial. - 12 Although Schlager testified as a witness for the Respondent, he was not questioned about this incident. Clark's testimony regarding Schlager's remarks, therefore, stands unchallenged MEYER & WELCH, INCORPORATED _ 247 "and I refuse to go along with it." McKay asked, "What can the CIO get for you that you haven't already got?" He told Clark that he had compared the collec- tive bargaining agreement at another plant of Welch's with the one at the Meyer & Welch plant, and that the latter contract was considerably more favorable to the employees. Clark, nevertheless, insisted that the contract at the Respondent's plant was illegal, and that the Respondent could "back out of anything" whenever it wished. When Clark reiterated that all he wanted was a "fair deal, something legitimate," McKay asked whether he thought the CIO could get it for him. Clark replied, "Well, at least whatever we get under the CIO it will be legal because it will be through a legal electiop." 18 Personnel Manager McKay testified that, in August 1950, Clark came' to his office and, purporting to speak for a group of employees, told McKay that unless the Board decision in the earlier case was forthcoming he would take matters into his own hands. McKay urged that mutual problems of the company and the employees be settled without Government intervention. Clark said, according to McKay, that he had always tried to "pacify" the employees who opposed the company, because he realized that the success of the business depended upon mutual cooperation, but added that he had adherents at the plant, and that be- fore he would "back down an inch [he] would destroy Welch or be destroyed." Clark admitted that he had called on McKay on the occasion in question, when, after asking his foreman for an opportunity to see Welch, he had been referred to McKay. He testified that he explained to McKay that his visit had been prompted because of a suggestion from an employee that Clark urge the CIO to boycott the Respondent. According to Clark, he had told this employee that such a boycott would violate the Taft-Hartley Act. The employee then suggested that an at- tempt be made to "sabotage" the machines. Because of this, Clark volunteered to see Welch in an effort to allay the unrest. He emphatically denied that he had stated to McKay that he would destroy Welch or be destroyed in the attempt. During the discussion, McKay told Clark that the CIO had damaged and disrupted the plant in Michigan," and observed that Welch could have retired on the 3 million dollar settlement received from his ranch, but, instead, put the money back into the plant to keep it in operation. On the basis of his observation of these witnesses, the background of the events culminating in the prior unfair labor practice proceeding, and the facts found herein, the undersigned credits Clark's version of this episode. This attempt to ascribe to Clark a fanatical determination to destroy his employer or be destroyed in the attempt, is a further indication of the degree of the Respondent's animus toward Clark. 3. Disciplinary measures against Clark On December 7, 1950, shortly before 2 p. in., Clark went to the employees' rest room. He had been there 4 or 5 minutes and was preparing to leave when an IAM committeeman, whom Clark could identify only as "Jimmy,"' entered. Handing Clark a booklet containing the IAM Local 's bylaws, the committeeman asked Clark to point out the provision which required 25 members as a quorum to conduct business . ( Earlier, Clark had challenged the legality of the election of a committee at an IAM meeting at which only 22 members had been present.) As Clark was pointing out the applicable provision , Foreman Schlager entered. Clark returned the book to the committeeman and left. Employees Roland "The-above findings are based on Clark's undenied testimony. 11 Presumably referring to the Novi Equipment Company, Welch's plant In the East. 15 Probably James May, one of several IAM committeemen at the plant, Identified else- where in the record by Personnel Manager McKay. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Duncan and Richard Thompson .had been in; the rest room when Clark first entered. Thompson had left before Clark, but Duncan remained after Clark had left, as did Schlager.18 Later, Schlager told Clark to report to the office. When he arrived there Plant Superintendent Weidhauer handed him a written notice marked, "FIRST WARNING,': dated December 7, 1950, 2 p. m., and signed by Foreman Schlager, warning Clark that he had violated a company rule by "loitering in the rest room." Significantly, neither Duncan, who was in the rest room when Clark entered, and remained behind after Clark left, nor the IAM committeeman, were given any warning, or even reprimanded for loitering in the rest room. The following Monday morning at about 9 o'clock, Foreman Schalger told 11 Clark that he wanted to talk to him. Clark said that he was sorry, but that he urgently needed to go to the rest room, which he referred to as "the can," .and invited Schlager to accompany him. Schlager presumably declined. When -Clark returned Schlager told him he wanted to talk to him at 10 o'clock. Clark protested against this encroachment on his rest period, and said that if Schlager wanted to talk to him he could do so on company time. At 10 o'clock Schlager again told Clark that he wanted to talk to him. Clark declined, stating that that was his rest period, and left. About a half hour after Clark had returned, Schlager asked him to come into his office, where he told Clark that if he ever told him that he was "going to the can again" he would fire him.17 Clark pro- tested that for the past week or two either Schlager or Leadman Elmer Miller had been following him into the rest room. When Schlager denied this, Clark reminded him that a separate rest room had been provided for foremen, and that Schlager had never used the employees' rest room until the past few weeks. Schlager thereupon remarked, "Well, it is either going to be you or me that will have to go." Clark told Schlager that if he would use his own rest room and desist from following Clark into the employees' rest room, something which Clark told Schlager he had never done with respect to any other employee, there would be no trouble. Clank added that he went to the rest room only when necessary and never remained there longer than other employees. Next day, Clark was issued a "SECOND WARNING," over Schlagers' signa- ture, stating that he had violated a company rule "by being insolent to your Foreman regarding the loitering warning issued to you on December 7, 1950." For this alleged infraction, Clark was disciplined by a 3-day layoff." . 16 Thompson testified, incidentally, without contradiction, that early in October 1950 Foreman Schlager told him not to talk to Clark during working hours, because he, Schlager, or the company would assume that they would be "talking union." It is not suggested that an employer may not, in the interest of uninterrupted production, prohibit union dis- cussion among employees .during working hours. The incident merely serves to illustrate further the Respondent's awareness of Clark's role in the union conflict. 17 It is not altogether clear from Clark's undenied testimony about this remark whether Schlager objected to Clark's using the rest room excessively or to his indelicate reference to the rest room. 1s Although the complaint alleges discrimination in the hire and tenure and terms and conditions of his employment generally, as well as in other respects stated elsewhere, the complaint does not specifically allege, and the General Counsel did not specifically contend, that the Respondent had discriminated against Clark within the meaning of the Act by this disciplinary layoff. However, a colloquy between the undersigned and the General Counsel suggested that the General Counsel may have intended to make such a conten- tion. To the extent that this contention may have been made, the undersigned finds the evidence insufficient to support a finding that the Respondent was motivated by Clark's union activities, rather than his apparent insubordination to his foreman, in imposing the disciplinary layoff. METER & WELCH, INCORPORATED 249 4. The withholding of the "merit raise" On January 8, 1951, the Respondent issued a mimeographed notice to its em- ployees, thanking them for their cooperation and announcing that effective that day, the Respondent was granting a "merit raise" of 10 cents an hour to "all employees who have cooperated with me." Of ai total of 400 or 500 employees of whom, according to Welch, approxi- mately 60 percent were production and maintenance employees, all but 6 or 8 employees received this so-called "merit raise." With the exception of Thomas Orr, a maintenance employee, the only other employees who did not receive this wage increase were Ann Barnett, Eldon Clark, Dora Ellis, Odean Jenkins, Lela Lea, and Hobert R. Taylor, all alleged herein to have been subjected to dis- crimination." Personnel Manager McKay testified that at the outset only 60 or 75 percent of the employees were to receive this wage increase. Originally, he testified, the Respondent had not intended the office, clerical, or plant-protection employees to participate in the wage increase. Later, the Respondent decided to include them. With respect to some'employees who had not originally been granted the increase, McKay further testified that their supervisors "went to bat" for them. and soon nearly everyone, with the exceptions noted, had been granted the wage increase. It will be noticed that the Respondent designated the increase as a "merit raise." Yet it made no examination or analysis of the quality, work performance, production, or attitude of any of the employees. Welch testified that, while he discussed the matter with Plant Superintendent Weidhauer and Personnel Manager McKay, he delegated complete authority to Weidhauer to make the selection of employees who were to receive the wage increase. He did not in- struct the superintendent or, so far as the record discloses, the personnel man- ager, to consult with or invite recommendations from the foremen, and there is no evidence that either of these men did so. According to Welch, he approved the selection of the employees who were to receive the wage increase, but, after a report from the plant superintendent, who had failed to recommend the employees alleged herein to have been dis- criminated against, refused to approve an increase for them. The increase was granted to all employees who "cooperated," which Welch defined as performing an honest day's work, refraining from interfering with other employees, and from causing "disruption and confusion." On Monday, January 22, 1951, after regular working hours, Clark, Barnett, Ellis, and Jenkins went to Welch's office to protest the denial of the wage in- crease to them. Jenkins asked Welch why they had not received the raise. Welch remarked, "You read the bulletin, didn't you?" She agreed that she had, but wanted to know what Welch meant by "not cooperating." Welch said that he "meant disrupting the place." Pressed for further explanation, Welch added, "Well, union talk and just disrupting the place, keeping it in an uproar." Jen- kins protested that she had not engaged in such conduct, volunteering that all she had done was to testify at the Board hearing, that she had testified truth- fully, and that "the truth never hurt anyone, I guess, 'till now." When Clark asked why he had not received the wage increase, Welch referred him to the bulletin. Clark said that he had not received one, and Welch directed his secretary to get Clark one. As she started to do so, Welch changed his 1e Although Personnel Manager McKay testified that all but six or eight of the employees received the wage increase, the only person he was able to' name, in addition to the com- plainants here, was Thomas Orr. 250 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD mind, and told her not to, saying, "He only wants to take it to the Board." Reverting to the matter of disruption, Clark suggested that if the employees present had been "disrupting the place and talking union" on company time, Welch would have discharged them. _ Welch made no reply. Mention was made of an election, and Welch told them they would get one. Clark said, "Yes, I know we will, and it will be an honest one." Welch retorted that "the'other election was honest." Clark observed that Trial Examiner Whittemore had not so found in his Intermediate Report. Welch then made a disparaging allusion to Trial Examiner Whittemore's "record," and recommended that Clark. "read it in a magazine sometime." Clark asked Welch whether he contended that the Board, which had affirmed the Trial Examiner's findings, was dishonest. Welch laughed, but made no reply. Joining in the discussion, Ellis remarked that if she was to receive only $1.37 an hour she would perform the amount of work commensurate with that rate. Welch said, "Just try not doing your work and see what happens. I will fire you." The employees protested that they had done their work satisfactorily and without complaint from their foremen, convincing evidence, they maintained, that they had been "cooperating." Welch stated that their work had nothing to do with it. Clark interjected, "Well, what does-race, creed, or religion, or your union affiliation?" Welch said, "Your religion has nothing to do with it." Asked if he had consulted with their foreman regarding the granting of an increase to these employees, Welch stated that he alone had made the decision. Ellis asked whether her foreman had failed to recommend her for the increase, and urged Welch to send for him so he could vouch for her work performance. Clark asked Welch how he could determine which of the employees deserved an increase when he was personally unfamiliar with the vast majority of them. Welch replied that he had his connections in the plant. Clark remarked, "I know who merits the raise." Welch returned, "Well, you didn't get your raise, did you?" Clark pressed Welch to state in what way he had failed to cooperate. Welch said that Clark had tried to "make the [employees] believe what [Clark] wanted them to believe and not what [Welch] thought was best for" them. Welch finally told- the employees that if they felt aggrieved, they should let the IAM handle their grievance. Ellis said that the employees had gone to the IAM with their grievances in the past without result. When Barnett asked whether she would receive the increase if she joined the IAM, Welch replied, "I don't think they will have you." According to each of the employees involved, no complaint had ever been made regarding their work, and each of them testified, without contradiction, that they had been commended by their foremen. The conference ended without re- sult, and the employees left.'* 5. The alleged constructive discharge of Ellis and Jenkins Next day, Ellis and Jenkins did not report for work. The following morning, Wednesday, January 24, 1951, they went to the plant and notified the foreman that they were "quitting." Schlager told them that he was sorry to see them leave, but that he knew how they felt, adding, "There's a lot of things that I would like to say to you, but I can't say them here . . . I have to keep my mouth shut." Ellis said she understood. Schlager told the women he would 20 The findings regarding this interview are based on the credible .and mutually corrobora- tive testimony of Clark, Barnett , Ellis, and Jenkins. Although Welch denied generally that he had been motivated by discriminatory considerations in refusing these employees the wage increase, except for possible differences in emphasis, his testimony did not materially refute their testimony. MEYER & WELCH, INCORPORATED 251 meet them at the personnel office. When they arrived there, Ellis told Personnel Manager McKay that they had come for their pay checks. McKay attempted to urge them to stay on. When Ellis said there was no reason to remain, McKay instructed the bookkeeper to make out their checks and exit papers, and the women received their checks and left. The complaint alleges, and the General Counsel contends, in effect, that, by denying Ellis and Jenkins the wage increase granted other employees, and refusing to furnish them with a satisfactory explanation for the failure to do so, the Respondent caused these employees to resign, and thereby discharged them constructively. The contention is apparently based on a theory that the Re- spondent , by its past conduct, in connection with the unfair labor practices in which it has been found to have engaged, had demonstrated the futility of con- tinuing in the Respondent's employ. The record shows that other employees who had been subjected to similar discrimination continued in the Respondent's employ, and pursued the remedy afforded them by the Act. Moreover, it is admitted by these employees that both their foreman and the personnel manager undertook to persuade them to remain in the Respondent's employ, but that they refused. The cases cited in support of the General Counsel's position are entirely inapposite.n The situation here is hardly comparable with one where an employer discriminatorily creates conditions of employment which are so onerous, hazardous, or intolerable as to leave an employee with no practical choice but to resign. An employee who resigns his employment in protest against his employer's mere refusal to grant him a wage increase, even where the refusal is discriminatory within the meaning of the Act, can scarcely claim to come within the conditions described. It will, therefore, be recommended that these allegations be dismissed. Hobert Taylor, employed by the Respondent as an assembly man for more than 7 years, had been a member of the IAM, and shop steward, from about February 1950 to October or November 1950. He ceased paying membership dues after September 1950. Early in January 1951, Taylor was summoned to Welch's office, where he found, in addition to Welch and his'secretary, Personnel Manager McKay. Dur- ing a conference lasting most of the afternoon, Welch told Taylor that employees were complaining that, as a result of his discontinuance of dues payments, Taylor was receiving 2 cents an hour more in take-home pay than those employees. Since he was not "cooperating" with the company, Welch told him, he did not feel that Taylor was entitled to the 10-cent increase. Taylor said that he thought it unlikely that the employees were objecting, adding that most of them had told him that they envied him, and regretted having to pay dues to the IAM. Welch asked Taylor what he suggested. Taylor said the only thing for Welch to do was to lay off the 18 or 20 employees who were not paying dues. Welch said he could not do that. Taylor reminded Welch that dues deduction author- izations could be revoked in February 1951, and told him that he, Taylor, had been asked by employees how to go about it. Welch suggested to McKay that it might be desirable to delay granting the wage increase until February, but this idea was presumably discarded. Taylor did not receive the' increase because, as Welch said, he had not cooperated with the company, and refused to pay IAM dues. Taylor protested vehemently that he had been doing the work of two men, and that if that was not an indication of cooperation, he was at a loss to know what was. McKay conceded in the discussion that Taylor was an exceptionally good worker. =Palm Beach Broadcasting Co., 63 NLRB 597; Pacific Powder Co., 84 NLRB 280. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Welch brushed aside Taylor's protestations as "beside the point," and as having no bearing on whether he deserved the raise 22 In determining the real reason the Respondent denied Taylor, as well as Lela Lea, the wage increase, the following antecedent circumstances are revealing. During October and November 1950, the employees initiated an attempt to oust Jack Arnold as IAM representative. Taylor was consulted about the steps to be- taken. He suggested that a petition, asking that Arnold be replaced, be sub- mitted to the IAM. Several handwritten copies of such a petition were pre- - pared and brought to Taylor for his approval. Employees, including Lela Lea, participated in the circulation of the petitions during lunch and rest periods and outside of working hours. The petitions, bearing purported signatures of some 125 employees, including those of Taylor and Lea, were eventually turned over by Lea to Taylor for submission at a meeting of the IAM local. Taylor, however, did not submit the petitions, when he was advised by an international representa- tive of the IAM from Washington, who happened to be at the local hall, that such action would violate the union's bylaws, and that Taylor could be brought up on charges and blackballed for presenting such a petition. He retained the petitions in his possession, later turning them over for use in these proceedings. Although Taylor conceded, in his testimony, that he at no time discussed the petitions with, or submitted them to, Welch, the inference is inescapable that the 'Respondent was aware of the circulation of these petitions. According to Lela Lea's uncontradicted testimony, although she circulated the petition in the plant on her own time, she made no effort to conceal her activity. Thus, at about 2: 30 on an afternoon later in October, Lea presented a copy of the petition to an em- ployee for signature in the immediate presence of Jerry Baron, production man- ager of Plant 1. On another occasion, during a noon hour, while Lea was at the time clock soliciting signatures, the petition was circulated in the immediate presence of George Hoyt, foreman of the Chevrolet and Plymouth department. As in the case of Taylor, Lea, too, did not receive the January 8 wage in- crease given nearly all other employees. Later, however, after the intercession of their foreman, and without further explanation, they were granted the in- crease, effective February 19, 1951. No explanation was offered at the hearing for the failure to grant these employees the ' increase at the time it was granted to all but a handful of the employees. According to Lea's undisputed testimony, when she failed to receive the increase initially, she asked Foreman Bert John- son the reason. He told her that he was surprised as she, but that he had never been consulted as to which of his employees were to receive the wage increase. Lea further testified that it had occurred to her that she might have .been denied the increase because she had mistakenly been blamed for some defective work. Recalling that during her absence from work a substitute had performed defective work on some truck motors, Lea suggested that to her foreman as a possible reason for the withholding of her raise. Lea asked that Johnson or the plant manager examine the records and clarify this, adding that if Johnson did not see fit to do so, she would personally take the matter up with Welch, because she did not "intend to take the rap for something [she] didn't do." Johnson made Ian examination of the records, and later told her that she had nothing to worry about, that the records indicated that the matter had been cleared up. Lea insisted on knowing whether Welch had been told, since that was probably one reason she had not received the increase. The record does not indicate John- son's response. According to Lea, he conceded that she was a very good worker, 22 The findings in this section are based on Taylor's credible , plausible, and uncontra- dicted testimony. MEYER & WELCH, INCORPORATED 253 and that he had absolutely no complaint about her work. Not content with this, Lea summoned Production Manager Baron and asked if he were under the im- pression that she had done the defective work. He assured her he was not. She reminded him that she had been working at that job for 8 years, and that she could hardly have made such an obvious mistake as the one involved, sug- gesting that whoever had made it either had been completely inexperienced or had made it intentionally. In February, when Lea's foreman reported to her that he had recommended her and Taylor for a raise, she asked him with whom he had discussed the matter. He told her that he had taken it up with the plant superintendent. Asked why Welch had not been informed, since he was the one who was granting the raise, Johnson said that it had been submitted to Welch who would make the decision, and that she would know when she received her pay check whether the raise had ben granted. She eventually received the raise, effective February 19, 1951. She was never told why she had not been granted the raise sooner, and made no further effort to ascertain the reason. Concluding Findings Regarding the Withholding of the Merit Raise Beyond peradventure, the record establishes that the Respondent withheld the January 8 wage raise from all six employees involved herein because of their known opposition to the IAM, and their actual or supposed adherence to the UAW- CIO. For all practical purposes, the "merit raise" was nothing more than a gen- eral wage increase. Except for the six employees involved herein, the Re- spondent was able to name only one employee, a maintenance man, concern- ing whom nothing more is disclosed in the record, by way of explanation for the refusal to grant him the increase, who did not receive the raise. Despite its protestations that the raise was intended to reward only those employees who had cooperated, it is clear that Respondent equated cooperation with fealty and allegiance to the IAM, the labor organization of the Respondent's choice. No attempt was made at evaluation of the work performance of any of the employees who received the raise, and certainly none was made with regard to the em- ployees alleged herein to have been discriminated against. Indeed, such evidence as the record discloses indicates that such an evaluation, or even a mere inquiry from the foremen who had supervision of these employees, would have established that, on the basis of work performance, attitude, production-and even coopera- tion-except in the sense in which the Respondent obviously intended and used the term, the employees would have merited an increase. With respect to the activities of Clark in opposition to the IAM, the record, both here and in the former case, speaks eloquently. As to Ellis, the Trial Examiner in the previous case found: After having twice been sent to the IAM representative and twice refusing to sign [dues deduction authorizations], employee Ellis was told by her foreman (Al Schlager) that if she joined he might be able to get a raise for her. She thereupon returned and signed the deduction slip. Barnett and Jenkins, he further found, were among only six employees who had not then signed similar dues deduction authorizations, and, with two other employees, "were likewise sent back to the IAM representative by supervision." Presumably these findings were based, in substantial part, on the testimony in that hearing of these employees. The activities of Taylor and Lea, particularly with regard to the preparation and circulation of the petitions for the removal of the IAM shop representative, known to the Respondent, have been too re- cently stated to require repetition. That the Respondent regarded this attempt to remove an IAM representative as hostile and inimical to its interests must be 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evident from what has, already been said. In sum, when the facts found in the instant case are viewed against the background of the Trial Examiner's findings in the former case, there can scarcely be any doubt that the Respondent denied and withheld from these employees a wage increase granted substantially all others because of their opposition to the IAM, and their supposed or actual ad- herence to the UAW-CIO. The General Counsel contends, additionally, that the Respondent withheld the wage increase from Barnett, Clark, Ellis, and Jenkins because they had given testimony at the prior hearing. While, as has been stated elsewhere with regard to Clark, it is perhaps impossible to assess the extent to which the Re- spondent was motivated by the latter consideration, it is sufficiently established, in view of the damaging evidence furnished by their testimony, on which the Trial Examiner in that case relied to a very considerable extent ; and the Re- spondent's entire course of conduct described in the prior intermediate report, and the findings and conclusions made there, as well as herein, that the Re- spondent was substantially motivated in denying those employees the wage increase, by the fact that they had given testimony against the Respondent in the former hearing. The undersigned, therefore, concludes and finds that, by denying Ann Bar- nett, Eldon Clark, Dora Ellis, and Odean Jenkins the wage increase. granted other employees, effective January 8, 1951, and by withholding said increase from Lela Lea and Hobert R. Taylor from January 8, 1951, to February 19, 1951,. because of their opposition to the IAM, and their adherence to the UAW-CIO, to encourage membership in the IAM, and discourage membership in the UAW-CIO, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3). With respect to Barnett, Clark, Ellis, and Jenkins, the under- signed further finds that, by denying them the wage increase for the additional reason that they had given testimony against the Respondent in a prior pro- ceeding under the Act, the Respondent has further engaged in unfair labor practices within the meaning of Section 8 (a) (4) thereof. 6. The discharge of Clark On Tuesday, April 10, 1951, after testifying at the instant hearing, Clark re- turned to the plant. He was met by a plant guard who told him that he had orders not to admit him. Clark inquired about his personal effects, and was told that he would have to report to the office. Reporting there, he asked -for Plant Superintendent Weidhauer or Personnel Manager McKay and learned that they'were at the Board hearing. When he identified himself, Welch's sec- retary, Elizabeth Burroughs, was summoned. Burroughs gave Clark his pay check, expressing her regret at having to perform the task, and stating that the matter was to have been handled by McKay. Clark asked permission to see Jess Wilcox, but was refused. He accepted his check and returned to the hearing. The Respondent contends that Clark was discharged because of an incident which occurred on Wednesday, April 4, 1951, less than a week before this hearing. The facts, as testified to by Clark, are as follows. Earlier, on the morning in question, Clark had seen the notice which the IAM had posted on the bulletin board, announcing the abandonment of its status as bargaining representative, and offering to refund dues deductions. Shortly after 10 o'clock, during the rest period, Clark visited his brother, who was employed by the Respondent in Plant No. 1, in another part of the plant, to inform him that he was entitled to a dues refund. When he reached a point in the hallway between the-crank- shaft department and the office, about 10 or 15 feet from the office, he saw a group of employees with IAM Business Agent Arnold and Jim Russell. As he MEYER & WELCH, INCORPORATED 255 reached the group Clark heard the word "boycott" mentioned. Clark asked Russell what they were talking about. Russell remarked, "We are not going into another of those lengthy conversations of yours, Clark." "No," Clark re- joined, "I guess you don't want to get involved in a conversation now that you are running out and leaving Welch to hold the bag." As the rest period ended, Clark turned to leave, when Arnold called him a vulgar and lewd name. Clark returned the compliment in a similar vein. Later the same day, during the luncheon or rest period,' Clark returned to the place where the previous incident had occurred. Substantially the same group was present. As Clark approached them, Russell, using profanity, took him to task for interrupting the discussion that morning. Clark vehemently denied that he had interrupted. Russell called on the others present to confirm him, but they declined to become involved. Finally, however, Russell apologized to Clark. Clark denied that he had used any profanity. The version of this incident, as related by witnesses for the Respondent," ascribes profanity and foul language on this occasion to Clark. All but one of the four female employees who testified regarding this episode, were em- ployed in the offices which opened off the hallway perhaps 20 or 30 feet from the scene of the encounter. The incident occurred, according to their testimony, during the afternoon rest period while the plant machinery was shut down. The doors to their offices were open and their attention was attracted by the loud commotion and argument which brought them to their doorways. Clark was standing with his back- to the offices; the other men were sitting in a group. According to Burroughs, the word "boycott" was mentioned, and Clark was heard to say that every time he spoke about the union "you so-and-so's walk away." She further testified that she heard Clark say, "Well now, that is a God damn lie " One of the group remarked that he was only repeating what had been said about the boycott. Clark said, "That is nothing but b- s-,"" and called the other a "dirty bastard." Burroughs conceded that the argument was interspersed with a number of "hells," "God damns," and "son-of-a-b-11 on all sides. She took a drink at the fountain outside her office, and went back inside. Welch testified that he learned of Clark's conduct, apparently from Burroughs, on his return after an absence from the city. He instructed the personnel de- partment to "pull his card" and, without making any investigation, discussing the matter with Clark, or affording him an opportunity to defend his conduct, issued instructions to discharge Clark on Monday morning. Neither Russell nor Arnold, the other principal participants in the altercation, was called by the Respondent to testify, and there was no showing that they were unavailable at the time of the hearing. Nor, so far as the record discloses, was either questioned by Welch, or any other management representative, about his part in the encounter, disciplined, or even reprimanded therefor. Clark's 28 Clark was insistent that the incident about to be related occurred during the lunch period between 12 : 00 and 12 : 30. Witnesses for the Respondent, however, were equally insistent that the episode occurred during the afternoon rest period, which ended at 2 : 30. Although the preponderance of the evidence indicates Mat the incident probably occurred during the afternoon recess, the undersigned regards this conflict immaterial, and does not regard that Clark's testimony has been adversely affected because be may have been mistaken as to when the incident occurred. It is undisputed, however, that the incident occurred during nonworking time. 24 Pauline Young, a janitress, who testified that she was on a balcony about 70 feet away, from which she observed and heard the altercation ; Lois Wagner, a typist in one of the offices leading off the hallway ; Margaret Wilton, secretary to the' sales manager, who occupied the same office as Wagner ; and Burroughs, Welch's private secretary, who occupied the adjoining office. 25 Obscenity deleted. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony concerning the earlier encounter is undisputed. The vulgar and lewd remarks attributed by him to Russell afford some basis for a claim of provoca- tion. The Respondent's failure, therefore, to make a serious investigation of the circumstances which culminated in the decision to discharge Clark is a significant factor in determining the Respondent's motivation. It may be assumed in favor of the Respondent, despite Clark's denial, which could reasonably be ascribed to a lack of awareness of the language he was actually using during the heat of the altercation, that he did, in fact, indulge in the profanity or even foul language which the Respondent's witnesses claimed. There is no contention that he was aware of their presence in the immediate vicinity, and it is reasonable to conclude from his testimony, as well as their own, that, had he known of their proximity, he would have exercised greater restraint. It is evident from their testimony, moreover, that these employees were quite as much disturbed by the "loud commotion" and "argument," in which others in addition to Clark participated, as they were by the profanity used. In general, too, some of the female employees conceded that language used during the alterca- tion, emanating from persons other than Clark, was not altogether uncommon in the plant. In fact, and at the possible risk of seeming ungallant, it may be observed that the janitress admitted that some of the language used in the alter- cation, which she regarded objectionable, was used by female employees in the rest room. And, although Burroughs attempted to minimize its significance, she admitted that her employer was not above using such words as "hell" and "damn" in her presence, though, according to her, with some restraint. It is probably unnecessary to observe that profanity, especially during heated argument between opposing factions, whether on union or other controversial matters, is not uncommon among male employees in a plant of the type involved here. This is not to suggest that the use of profanity or vulgar or obscene lan- guage among employees at a plant is to be condoned. Or that an employer need countenance the use of such language. The issue, however, is not whether the conduct in which the employee engaged was so offensive as to warrant dis- ciplinary action. For it is axiomatic that, under the Act, an employer may discharge or otherwise discipline an employee for any reason, or, indeed, for none whatever, so, long as he is not motivated by a purpose to discourage or encourage membership in a labor organization. But, in determining what actu- ally motivated the employer, here, the incident cannot be considered in isolation, but must be viewed in the light of the entire background of the employer's con- duct, and his attitude in relation to Clark. It should be abundantly apparent from what has been related here, and found in the earlier proceeding, that Clark was the most militant and articulate opponent of the IAM, an organization favored by the Respondent. Clark had openly campaigned for the elimination of the IAM from the plant, and had taken violent issue with its representative on a number of occasions. It is probably hyperbole to characterize Clark as a firebrand, but that term very nearly describes his role. A cursory reference to the leaflets distributed by the Company abundantly demonstrates the view the Respondent took of Clark's position. Personnel Manager McKay's frequent inter- rogation of Clark, his futile attempts to enlist his allegiance to the IAM, his refer- ences to the invaluable service Clark was rendering the CIO, leave no doubt of the desirability, in the Respondent's view, of eliminating his opposition. It will be recalled, as found in the earlier proceeding, that Welch had threatened to "get" Clark after he had circulated petitions in opposition to the IAM. Obvi- ously Clark's subsequent activities merely reinforced Welch's earlier determi- nation. On this basis, it is not surprising that the Respondent was continually on the alert for any incident which would afford a convenient pretext for Clark's MEYER & WELCH, INCORPORATED 257 discharge. Thus, the "first warning" for the rest-room incident in December 1956; followed by the "second warning," resulting in a penalty of a 3-day lay off. Witness, too, the reprisals visited on Clark by the Respondent : the transfer from his regular job to the onerous and disagreeable "tear down job," following his testimony at the prior hearing ; the denial of the "merit raise" in January 1951, ostensibly because he. had failed to cooperate, and had been a disruptive influ- ence, but, in reality, because of his anti-IAM and pro-CIO activities. When all these factors are weighed against the misconduct upon which the Respondent relies in justification of Clark's discharge, the conclusion is ines- capable that the Respondent waited for Clark to commit some offense which could be regarded of sufficient gravity to justify discharge, and then utilized it as a pretext for eliminating the most formidable adversary of the IAM in the plant. The undersigned so finds. As has already been stated with regard to the discriminatory treatment to which Clark was subjected, after testifying in the former proceeding, while it may be difficult to determine to what extent the Respondent was also motivated, in finally discharging Clark, by the fact that he had given testimony in the pres- ent hearing, it is sufficiently clear from what has been stated in this connection elsewhere, that that fact was undoubtedly a substantial factor in the Respondent's decision to discharge him, and the undersigned so finds. The undersigned therefore finds, on the basis of all the foregoing, and on the entire record in this, as well as in the former, proceeding, that the Respondent discharged Clark on April 10, 1951, while the instant hearing was in progress, because of his resolute opposition to the IAM, and his adherence and allegiance to the UAW-CIO, thereby encouraging membership in one labor organization, and discouraging membership in another, in violation of Section 8 (a) (3) ; and further finds that, by discharging him for the further reason that he had given testimony under the Act, the Respondent has also violated Section 8 (a) (4) thereof. 7. Alleged discrimination against Barnett for giving testimony On April 9, 1951, the first day of the hearing in the instant case, Ann Barnett testified as a witness for the General Counsel, chiefly regarding the withhold- ing of the wage increase and the discussion in Welch's office on January 22, 1951. Next morning, when she reported for work as usual, Foreman Schlager asked her whether she was "through up in court." She replied that she had not been told. Schlager then transferred her from the-job of assembling pumps, which she had been performing during her 6 years of employment, to the job of riveting brake linings on a pedal-operated machine. When she asked Schlager the reason for the transfer, he said, according to her, that he intended to keep her at that job "until this thing was over." She admitted, however, that Schlager told her that there was a shortage of necessary parts for assembling water pumps. Barnett's previous job had consisted of inserting bushings in water pumps. The operation involved assembling "kits" after she "spotbaste[d]" them on a drill press, added pulleys, and boxed them for shipment. Although the job riveting brake linings to which she was transferred was lighter physically, she preferred her former job because it entailed less mental strain, and because she had acquired a certain facility and dexterity in that job from long experience. She also testified that the riveting job was more hazardous because of the danger of injury to her hands. She received the same rate of pay, however, as she had been receiving on the assembling job, and her hours of work and other conditions of employment remained unchanged. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent contended that Barnett was transferred to the riveting job solely because of a shortage of essential parts for water pump kits, designated as 78 and 68 kits, required for the job which Barnett had been performing. For several months before April 1951, according to Foreman Schlager, the Respond- ent had been confronted with an increasing shortage of parts and, as work gradually diminished, he transferred Barnett to other jobs in the department. Barnett admitted that she had been transferred to the job of riveting brake lin- ings, but only once for about an hour, 2 or 3 weeks before, during her entire period of employment. In addition to Barnett, there was one other employee, Arthur Lopez, employed in the job of assembling pumps. On prior occasions, when there was work for only one employee on water pump assembly, Schlager had transferred Lopez out of the department, leaving Barnett to perform the available assembly work. On the occasion in question, however, Schlager transferred Barnett instead. According to her, she had greater departmental seniority than Lopez, and had, in fact, "broken in" Schlager, when he was transferred as foreman from another department. Although Lopez apparently had more plant seniority than Barnett, the undersigned regards that as immaterial to the issues here, since it is obvious that seniority was not a factor in the transfer. Schlager testified, however, that he transferred Barnett rather than Lopez because, in addition to the regular job of water pump assembly, Lopez did the "tear-down work," the only work then available, an operation in which parts are "broken down" and washed on a 10-ton press, and, after being cleaned, sanded, and painted, delivered to the employee who does the assembling. It is undisputed that Barnett had never operated the 10-ton press, although she testified that she and another female employee had at one time operated a some- what smaller press , and that she was not only willing to operate the 10-ton press, but had also asked her foreman for an opportunity to , do so. Schlager, however, testified credibly, and the undersigned finds, that female employees were not ordinarily assigned to the more arduous and dangerous operation of the 10-ton press, and that due to the shortage of water pump parts, and the need for opera- tion of the press, Lopez was retained in the department rather than Barnett. Company records, consisting of orders and invoices for 78 and 68 water pump kits from the Ford Motor Company, covering January and February 1951, intro- duced in evidence, fully support the Respondent's contention regarding the short- age of essential parts. Furthermore, Schlager testified that the transfer of Barnett to the brake shoe department was temporary, and that he had informed her that she would be returned to her former job as soon as necessary parts became available. In addition, he affirmed this in his testimony at the hearing. Although Schlager admitted that he had asked Barnett, on her return from the hearing, whether she had finished testifying, the undersigned is not convinced that there was any connection between this casual question and her subsequent transfer. In view of the persuasive and convincing explanation for her transfer, including the necessity required by efficient operation; the fact that her rate of pay, hours of work, and other conditions of employment remained unaffected by the transfer ; the fact that the job to which she was transferred was actually less arduous than the one she had been performing; and the assurance given her in open hearing that she would be returned to her former job as soon as parts essential to her job became available, the undersigned concludes and finds that the Respondent did not transfer her from her previous job because she had given testimony under the Act, and, therefore,, did not by such transfer discriminate against her, in violation of Section 8 (a) (4), or for the purpose of encouraging er discouraging membership in a labor organization, in violation of Section 8 MEYER &WELCH, INCORPORATED 259 (a) (3) of the Act. It will, therefore, be recommended that these allegations 'be dismissed. C. Further support and assistance to the IAM In August 1950,28 the Respondent issued a mimeographed notice to its employ- ees, informing them that they would be furnished with copies of the collective bargaining agreement between the Novi Equipment Company, identified in the notice as "Mr. Welch's plant in the East," and the UAW-CIO, so that the em- ployees could compare it with one in effect at the Meyer & Welch plant. Describ- ing employee benefits in the latter contract, the notice pointed out that the terms of that contract, under which the IAM was the bargaining representa- tive, were substantially more favorable to the employees than those in the contract at the Novi plant, where the UAW-CIO was the incumbent bargaining agent. Warning that, if Clark or the CIO had told employees that the Respondent had been responsible for any, delay in the proceedings before the Board, they were being misinformed, because the Respondent was "not the least concerned about the C. I. O.'s progress in obtaining an early decision," the notice stated that the Respondent had taken the position from the inception of the pro- ceedings that it intended to "fight this matter all the way to the Supreme Court." The notice concluded : We want to advise all of you to stop and think for yourself if it makes much difference who you have to pay dues to. We want to take this opportunity to tell you one and all that the I. A. M. is not a "Company Union" any more than the C. I. O. I have dealt with both Unions now and if you want to keep on being agitated by a few sore-heads 27 because they are not the governing body, suit yourself. I am sure if the C. I. O. had won the election which they are claiming to be illegal, we would never have heard a squeak out of them ! 28 Shortly after the first of the year 1951, the IAM posted, on a bulletin board placed at its disposal by the Respondent, over the signature of Business Rep- resentative Cooksey, the following notice : ATTENTION-ALL EMPLOYEES OF MEYER & WELCH EACH OF YOU HAVE ASKED THE QUESTION, "IS THE CONTRACT BETWEEN THE MACHINISTS UNION AND MEYER AND WELCH COMPANY LEGAL?" 1. THE ANSWER TO THE ABOVE QUESTION IS YES. THE CON- TRACT IS ABSOLUTELY LEGAL AS IT WAS PROPERLY NEGOTIATED AND APPROVED BY BOTH THE MANAGEMENT AND MEMBERS OF THE MACHINISTS UNION EMPLOYED BY MEYER & WELCH. II. THE CONTRACT IS RECOGNIZED BY THE COMPANY AS BEING A VALID CONTRACT. III. THE CONTRACT WILL BE EFFECTIVE UNTIL JUNE 5, 1951, AND IF THE MEMBERSHIP WISHES, IT WILL BE RE-NEGOTIATED AND EXTENDED TO A MUTUALLY AGREED UPON DATE UNLESS A DECREE IS RENDERED BY A "COMPETENT COURT OF LAW," DECLARING THAT OUR CONTRACT BE SET ASIDE. _ 29 According to Clark's uncontradicted testimony, several days after Personnel Manager. McKay telephoned him at his home, and discussed the Novi contract with him, as already related. 27 A reference obviously intended to include Clark 28 No finding of interference, or support and assistance to the IAM, is made on the basis of this notice. The facts concerning the notice are related as background for findings made hereinafter. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This announcement, according to Clark's undisputed testimony, remained on the bulletin board for several months after it was posted, and until as recently as a week before the hearing in the instant case. Clark further testified, without contradiction, that the bulletin board on which the notice was posted was en- closed under glass . and locked, and that only the Respondent and the IAM had keys to it. In view of, .the length of time the notice remained posted, it can scarcely be contended, and, indeed, the Respondent does not contend, that it was unaware that the notice was posted. It is, therefore, reasonable to assume that the notice was posted with the actual knowledge, consent, and, in view of the support and assistance rendered the IAM, and the Respondent's adoption of the IAM's position, with the approval of the Respondent. Under these circumstances, and because of the Respondent's failure to repudiate or disavow the statements contained in the notice, the statements and views expressed in the notice are found to be attributable to the Respondent Although the right of a party, against whom the Board has issued a decision, to a review in the courts is not to be gainsaid, the record of the Respondent's conduct in the instant, as well as in the earlier case, and the unfair labor prac- tices, apart from the support and assistance rendered the IAM, in which the Respondent has been found to have engaged, convince the undersigned that its refusal to comply with the Board's decision has been prompted, not by a sincere and genuine desire to obtain a review in the courts, but by its unrelenting opposi- tion to the fundamental purposes of the Act. Its lack of good faith in this respect is evidenced, not only by its failure to petition for a review of the Board's Deci- sion and Order, but also by the fact that after the issuance of the decision, the Respondent almost immediately embarked on a course of further unfair labor practices, designed to frustrate the employees in their efforts at self-determina- tion. Had it been sincere in its desire to obtain a review of the Board's deci- sion, it could have done so without engaging in a renewed campaign to subvert the rights of its employees. On or about January 2, 1951, some 85 employees executed and submitted to the Respondent mimeographed forms revoking their dues authorizations, effective with the deduction of dues for the. month of February 1951. Personnel Manager McKay notified Welch of the receipt of these revocations, but Welch instructed him to disregard them. ' In a circular letter dated February 6, 1951, Welch, after undertaking to reply to a CIO leaflet, and charging the CIO with having prevailed on the employees to sign the dues revocations, advised the employees that they would be obliged to sign a slip at the personnel office within the 15-day period after February 15, 1951. The Respondent does-not deny that it continued to recognize the IAM as col- lective bargaining representative, and, presumably, to deduct dues from the wages of its employees, at least until the escape period provided in the contract, notwithstanding the Board's outstanding Decision and Order. On the contrary, it maintained throughout that, having entered into what it considered a valid collective bargaining agreement with the IAM, it was legally bound to observe it, and proposed to continue to recognize and deal with that union as the repre- sentative of its employees until the matter was determined by the courts. Although Welch testified that he had instructed his counsel to appeal the Board's decision, it was stipulated that no such "appeal" was taken. Moreover, Welch admitted that he would have continued to recognize and deal with the IAM as exclusive representative of the employees even as late as the date of the hearing, had the IAM not seen fit to renounce its status as such representative, abandon the contract, and reimburse employees for dues deducted from their wages in MEYER & WELCH, INCORPORATED 261 favor of the IAM. This conduct of the Respondent is further evidence of its resolute determination to impose upon its employees a bargaining representative of its own choice rather than that of its employees. The undersigned therefore finds that , by continuing to recognize the IAM, a labor organization found to have been the beneficiary of its support and assist- ance; by continuing and expressing its determination to continue to observe the collective bargaining agreement obtained with such support and assistance; by permitting the IAM to post and maintain on a bulletin board at its plant, with its knowledge, consent, and obvious approval, a notice, reasserting the validity of the contract , its determination to continue the contract in effect until its expiration date, and to renegotiate , and extend the contract, unless set aside by a "competent court of law" ; by refusing to accede to the employees' revoca- tion of dues deduction authorization ; and imposing conditions with respect to the manner of such revocation , the Respondent has continued to render unlawful assistance and support to the IAM, in violation of Section 8 (a) (2) of the Act. The fact that the IAM has allegedly on its own initiative renounced its claim to represent the Respondent 's employees , repudiated or abandoned the collective bargaining agreement, released the Respondent of any further obligations there- under, and refunded dues deductions to employees , does not, of course, absolve the Respondent of the unfair labor practices in which it has been found to have engaged. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. If has been found that the Respondent has discriminated in regard to the hire and tenure of employment of Eldon Clark, first, by assigning him to a less desir- able job, after he had testified at the prior hearing in June 1950; second, by deny- ing him the wage increase of January 8, 1951; and finally by discharging him on April 10, 1951. It has also been found that the Respondent has discriminated in regard to the hire and tenure and the terms and conditions of employment of Ann Barnett, Dora Ellis, Odean Jenkins, Lela Lea, and Hobert R. Taylor by denying each of them the wage increase on January 8, 1951. It will, therefore, be recom- mended that the Respondent offer said Clark immediate and full reinstatement to the position which he held immediately preceding the Board hearing in June 1950, or to a- substantially equivalent 2' position, and make him whole for any loss of pay he may have suffered by reason of said discrimination by payment of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstate- ment, less his net earnings during said period 30 In addition, it will be recom- 29 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 30 Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v. N. L R B. 311 U. S. 7. 974176-52-vol. 96-18 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mended that the Respondent make whole said Clark, and Ann Barnett, Dora Ellis, and Odean Jenkins for any loss of earnings they sustained, as a result of being denied the wage increase granted other employees, from January 8, 1951, until the date the Respondent shall grant said employees said wage increase. With regard to Lela Lea and Hobert R. Taylor, whose wage increase was with- held from January 8, 1951, until February 19, 1951, it will be recommended that the Respondent make them whole for the loss of earnings which they sustained during said period as a result of the discrimination against them. In computing the loss of pay which Clark sustained as a result of his discriminatory discharge on April 10, 1951, the Board's formula in F. W. Woolworth Company, 90 NLRB 289, shall be applied. It will also be recommended that the Respondent, upon reasonable request, make available to the Board and its agents all payroll and other records pertinent to an analysis of the amounts of back pay and loss of earnings due said employees. It has also been found that, despite the Board's Decision and Order in the prior proceeding, the Respondent has persisted in recognizing the IAM as exclusive bargaining representative of its employees, and in giving effect to the contract, and has refused to permit employees to revoke their dues deduction authoriza- tions. That the IAM has voluntarily abandoned the contract, renounced its un- lawful status as collective bargaining representative, and even reimbursed or offered to reimburse employees for such dues deductions, does not relieve the Respondent of its obligation to comply with the Board's Decision and Order. Nor does the offer made by the Respondent, upon the withdrawal of the IAM from this proceeding; to consent to a Board-conducted election absolve the Respondent of its responsibility for its unfair labor practices. Since, however, the Board has already issued an order designed to redress these unfair labor practices, no purpose will be served by reiterating in these recommendations the -remedial order already entered in the former proceeding. More appropriate and effective action requires enforcement of the Board's outstanding Decision and Order, which the Respondent has thus far flouted. The unfair labor practices in which the Respondent has been found to have engaged, not only in this, but also in the prior unfair labor practice proceeding, manifest an attitude of opposition to, if not outright defiance of, the Act and the purposes which it was designed to effectuate. The Respondent's past unlawful conduct completely justifies the inference that commission of unfair labor prac- tices may be anticipated in the future, unless the remedial order here is made coextensive with the threat. In order to effectuate the interdependent guaran- tees in Section 7 of the Act, it will, therefore, be recommended that the Respond- ent cease and desist in any manner from interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by the Act.' It has been found that the Respondent did not cause Dora Ellis and Odean Jenkins to resign from the Respondent's employ on or about January 23, 1951, and did not, in that respect, discriminate in regard to their hire and tenure of employment, in violation of Section 8 (a) (3). It has also been found that the Respondent did not discriminate in regard to the hire and tenure or terms and conditions of employment of Ann Barnett on April 10, 1951, by transferring her to another job, to encourage membership in the UAW-CIO, in violation of Section 8 (a) (3), or for the reason that she had given testimony in this proceeding, in violation of Section 8 (a) (4). It will, therefore, be recommended that the allegations mentioned in this paragraph be dismissed. ffi N. L. R. B. v. Empress Publishing Company, 312 U. S. 426 ; May Department Stores V. N. L. R. B., 326 U. S. 376. TOLEDO SERVICE PARKING COMPANY 263 Upon the basis of the foregoing findings of fact, and on the entire record in this, and the former, proceeding, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, CIO (UAW-CIO), Region 6; and International Asso- ciation of Machinists, Lodge 1186, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment and the terms and conditions of employment of Ann Barnett, Eldon Clark, Dora Ellis, Odean Jenkins, Lela Lea, and Hobert R. Taylor, thereby encouraging member- ship in one labor organization, and discouraging membership in another, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By discriminating in regard to the hire and tenure of employment of said Ann Barnett, Eldon Clark, Dora Ellis, and Odean Jenkins because they had given testimony under the Act at the hearing in June 1950, and, with respect to said Clark because he had also given testimony in this proceeding, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (4) of the Act. 4. By continuing to support and assist International Association of Machinists, Lodge 1186, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 5. By the unfair labor practices recited in paragraphs 2, 3, and 4, above, and by interrogating, threatening, and engaging in reprisals against its employees, because of their opposition to the IAM, and their allegiance to the UAW-CIO, and by refusing to permit them to revoke authorizations for dues deductions, and coercing them to remain members of the IAM, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1). 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 7. The Respondent has not engaged in unfair labor practices within the mean- ing of Section 8 (a) (3) of the Act, with respect to the resignations of Dora Ellis and Odean Jenkins, on or about January 23, 1951, or, within the meaning of Section 8 (a) (4), with respect to the transfer of Ann Barnett to another job on April 10, 1951. [Recommended Order omitted from publication in this volume.] TOLEDO SERVICE PARKING COMPANY and DISTRIBUTION AND WAREHOUSE WORKERS UNION, LOCAL 22, INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PETITIONER. Case No. 8-RC-1261. September 20, 1951 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Carroll R. Martin, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 96 NLRB No. 38.