Robinson Aviation, Inc.

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluding all auto mechanics, body men, painters, apprentices and helpers, salesmen, clerical employees, parts department employees, guards, professional employees, service managers, assistant service managers, shop superintendents, foremen, and supervisors as defined in the Act. Case No. 8-RC-1571 All lubrication men and garagemen of Michaels, Inc., in Cleveland, Ohio, but excluding all auto mechanics, body men, painters, ap- prentices and helpers, salesmen, clerical employees, parts department employees, guards, professional employees, service managers, assistant service managers, shop superintendents, foremen, and supervisors as defined in the Act. [Text of Direction of Elections omitted from publication in this volume.] ROBINSON AVIATION, INC. and INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL. Case No. 2-CA-18792. May 00, 1962 Decision and Order On November 9, 1951, Trial Examiner Stephen S. Bean issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that those allegations of the com- plaint be dismissed. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers In connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. 99 NLRB No. 46. ROBINSON AVIATION, INC. 197 tions of the Trial Examiner, except insofar as they are inconsistent with this Decision and Order.2 1. We agree with the Trial Examiner's finding that the Respondent violated Section 8 (a) (3) and (1) of the Act, by discharging Dressler and LeForestier because of their activities in behalf of the Union. In addition to the circumstantial evidence detailed in the Intermediate Report, this finding is directly supported by the credited testimony of Dressler and LeForestier that at the time of their discharge on November 10, 1951, they were told by Ranslow, the Respondent's plant manager, that they were being discharged because he would not tolerate their union activities. Regarding this statement by Ranslow, the Trial Examiner considered it a derivative rather than an inde- pendent violation of Section 8 (a) (1). As no exception has been filed to the failure to find this statement to be an independent viola- tion, we hereby adopt the Trial Examiner's finding. 2. The Respondent contends that the i§sues with respect to LeFores- tier's discharge have been rendered moot, because he does not desire reinstatement and the amount of his back pay was fixed in a settle- ment agreement made at the hearing. It therefore argues that no finding, conclusions, or recommendations should be made concerning LeForestier. We do not agree with the Respondent's contention, as the Board is not precluded from determining, in it own discretion, what effect, if any, should be given to a settlement of unfair labor practice charges by the parties .3 Under the circumstances of this case, we do not think that it would effectuate the purposes and policies of the Act to dismiss the complaint as to LeForestier. Accordingly, we shall order that he be reimbursed for any loss of pay he may have suffered from the date of the Respondent's discrimination against him, to the date of his other employment, as recommended by the Trial Examiner. To prevent any prejudice to the Respondent, any money paid to LeForestier under the settlement agreement shall be credited against the amount of back pay to which he would otherwise be en- titled.4 As LeForestier does not desire reinstatement, we shall make no provision therefor. "The Intermediate Report contains certain inadvertencies , which do not affect the Trial Examiner's ultimate conclusions or our concurrence therein. Accordingly , we note the following corrections :, (1) The record shows that the Respondent did not refer to Henry Dressler as one who appeared to be an excellent workman, in its memorandum of August 1, 1950; and ( 2) in the portion of the Intermediate Report entitled "The Remedy," the Trial Examiner's reference to back-pay computation on the basis of "each separate calendar month" should read, "each separate calendar quarter." IN. L. R. B. v. Walt Disney Products, 146 F. 2d 44, 48 (C. A. 9), certiorari denied 324 U. S. 877; N. L. R. B. v. Revlon Products Corp , 144 F. 2d 88, 90 (C. A. 2). 4 See Federal Stores Division of Spiegel, Inc , 91 NLRB 647, 671. 2152:13-5:1-14 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Robinson Aviation, Inc., Teterboro, New Jersey, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from: (a) Discouraging membership in International Association of Ma- chinists, AFL, or any other labor organization of its employees, by discharging its employees or in any manner discriminating in regard to their hire and tenure of employment, or any term or condition of employment. (b) In any other manner interfering with, -restraining, or coercing its employees in the exercise of the right to self-organization, to join or assist the Union, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activi- ties, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in 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 to Henry A. Dressler immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make Henry A. Dressler and Michael E. LeForestier whole in the manner set forth herein and in the section of the Intermediate Report entitled "The Remedy." (b) Upon request, make available to the National Labor- Relations 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 analyze the amounts of back pay due and the right of reinstatement under the terms of this Order. (c) Post at its plant at Teterboro, New Jersey, copies of the notice attached to the Intermediate Report, marked "Appendix A." 5 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's repre- 5 This notice, however, shall be, and it hereby is amended by striking from line 3 thereof the words "The Recommendations of a Trial Examiner" and substituting in lieu thereof the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " ROBINSON AVIATION, INC. 199 sentative, be posted by the Respondent upon receipt thereof and main- tained by 'it for a period of sixty (60) consecutive days thereafter in conspicuous places, including ;,all , places 'here notices to em- ployees are customarily posted. Reasonable steps shall betaken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Second Region (New York, New York), in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent interfered with, re- strained, and coerced its employees by threats and warnings, in viola- tiomof Section 8 (a) (1) of, the Act. Intermediate Report STATEMENT OF THE CASE Upon a charge duly filed on March 23, 1951, by International Association of Machinists, herein called the Union, the General Counsel of the National Labor Relations Board, respectively herein called the General Counsel and the Board, by the Regional Director for the Second Region (New York, New York), issued his complaint dated August 14, 1951, against Robinson Aviation, Inc., herein called the Respondent, alleging that Respondent had engaged in and was engag- ing in unfair labor practices affecting commerce within the meaning of Section S (a) (1) and (3)' and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charge, the complaint, and notice of hearing were duly served upon the Respondent and the Union. With respect to unfair labor practices, the complaint alleges, in substance, that: (1) Respondent on or about November 10, 1950, discharged Michael E. LeForestier and Henry A. Dressler, and has since continually failed and refused to reinstate them to their former or substantially equivalent positions or em- ployment for the reason that they joined or assisted the Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid and protection; and (2) from on or about the month of November 1950, threatened and warned certain of its employees that it would not tolerate union activities and that they should know better than to join the Union; thereby discriminating in regard to the hire, or tenure, or terms of employment of its, employees, and discouraging membership in the Union, and restraining, interfering with, and coercing}its employees in the exercise of rights guaranteed by Section 7 of the Act. . Respondent filed an answer, dated August 21, 1951, admitting certain allega- tions of the complaint with respect to the nature of its business but denying that it had engaged in any unfair labor practices. Pursuant to notice, a hearing was held from September 17 to September 20, 1951, at New York, New York, before Stephen S. Bean, the undersigned Trial Examiner, duly appointed by the Chief Trial Examiner. The General Counsel, Respondent, and the Union were represented by ^a counsel and all participated ' Amended from Section, 8 (a) (1) and (2) of the hearing. 2,00 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD in the hearing. Full opportunity to be beard, to examine and cross-examine witnesses, and to introduce evidence bearing upon issues was afforded all parties. At the conclusion of the hearing, the parties were advised that they might argue orally' before me and file briefs by October 10, 1951. The General Counsel and counsel for the Respondent argued orally. On October 10, 1951, the Respondent filed a brief which has been considered. I granted, without objection, a motion by the General Counsel to amend the pleadings to conform to the proof in formal matters. Upon the entire record in the case and from my observation of witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is and has been since 1942 a corporation duly organized under and existing by virtue of the laws of the State of New York. At all times material hereto, Respondent had maintained its principal office and place of business in the town of Teterboro, county of Bergen, and State of New Jersey, and is now and has been continually engaged in said plant in the manufacture, sale, and distribu- tion of vibration absorption shock mounts for airplanes. During the year 1950, Respondent, in the course of its business operations, caused to be purchased, transferred, and delivered to its plant, aluminum, steel, rubber, and other material valued in excess of $100,000, of which approximately 25 percent was transported to said plant in interstate commerce from States of the United States other than the State of New Jersey. During the same year, Respondent manufactured at its said plant, products valued in excess of $500,000, of which approximately 90 percent was transported from said plant in interstate com- merce to States of the United States other than the State of New Jersey. Respondent admits that it is engaged in commerce within the meaning of the Act and I so find. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists , AFL, is a labor organization admitting employees of Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion' For several weeks, prior to November 9, 1950, there had been considerable talk among the approximately 43 employees of the Respondent about the desira- bility of joining a union. Employee Henry A. Dressler was a punch-press oper- ator and later an assembler. His discharge from employment is hereinafter discussed. On the afternoon of Thursday, November 9, 1910, the "first-forward step" toward joining a union was taken by Dressler. He went to a shop where he had formerly worked in order to talk with a shop steward with whom he was acquainted. It happened that one Bausch, a union representative, was at the shop Dressler visited, and the two men talked. It appearing that Bausch's 2 Findings of fact In this section of my Report are based upon substantial credited evi- dence of Henry A. Dressler , Michael E. LeForestier , Joe Velas , and David C. Clydesdale. The section does not purport to Include an encyclopedic recitation of all the testimony. Such matters as are not referred to have not been considered as material or necessary to a determination of the Issues. Insofar as any findings may be In disaccord with relevant testimony of G. DeFreest Larner , Fred J. Gallagher , Sam Licata , and Arthur G. Ranslow, the reasons or bases for findings of fact upon conflicting testimony will be set forth in section III , B, of this Report entitled "Discussion." ROBINSON AVIATION, INC. 201 activities were confined to Hudson County, New Jersey, and since Respondent's plant was located in Bergen County, Bausch, by telephone, communicated with David C. Clydesdale, Grand Lodge representative of the Union, whose area of 'operation included Bergen County. Clydesdale arranged to have Bausch supply Dressler with a quantity of union application cards and to meet Dressler, and pick up whatever cards Dressler succeeded in having signed, at the latter's station wagon in Respondent's parking space at noon on the following day, Friday, November 10, 1950. Dressler arrived at ,the shop Friday at about 7: 15 a. in., and as the employees entered the main shop, he met them, spoke to them about signing,`and handed them application cards. Of the 43 employees, 41 signed and returned cards directly to Dressler or to him through employee Michael E. LeForestier, an assem- bler, between about 7: 15 a. in. and about 8 a. in. or shortly thereafter. By about 7:55 a. in., all the cards had been handed out but there were still some to be signed and employees continued for awhile after to bring cards over to Dressler. Work commenced at 8 o'clock. One employee refused to sign and another em- ployee did not report for work that morning. LeForestier arrived for work at about 7: 35 a. in., and since by that time employees were arriving in such num- bers that Dressler was unable alone to hand out cards and procure signatures rapidly enough, he gave LeForestier a number of cards and the latter proceeded to present them to employees for signature as they came in, picked the cards up . and..returned• them, to Dressler. After Dressier had been in the main shop _for awhile he went into the locker room where the employees naturally gathered. While the cards were being given out and being returned, Dressler saw Arthur G. Ranslow, Respondent's works manager, at his desk which was located in the main shop, a room whose dimensions are 66 feet by 112 feet, in such a position that one sitting there could observe all activity in the shop. When Joseph Velas, Respondent's shop foreman, came into the shop, he heard a lot of talking among the employees about a union and he was handed a union application card which he returned after noting what it was. Not later than 5 to 10 minutes afer 12 noon on November 10, as arranged the preceding day, Dressler met Clydesdale in the parking lot directly in front of the window of the office of G . DeFreest Larner, Respondent's general manager, and handed Clydesdale the 41 signed applications for membership in the Union. Dressler then walked with Clydesdale to the latter's automobile which had been left parked on the highway outside Respondent's premises. Clydesdale took a number of union newspapers or circulars from his car and gave them to Dressler. Then Dressler returned to the shop and placed the material on a workbench about 10 -or 15 feet-from,Ranslow's desk.. At this .time Dressler did not see Ranslow. Several employees picked up and read the newspapers or circulars and Le- Forestler carried a small handful of them to other men who were sitting on a bench while eating lunch. During a rest period at about 2:15 p. in. Dressler, LeForestier, and the other employees received their pay envelopes for the period Thursday, November 2, to Wednesday, November 8, inclusive. At about 4:45 p. in. LeForestier was summoned over to Ranslow's desk. Ranslow stated he was going to have to let him go. Upon LeForestier asking him the reason, Ranslow responded that he could not stand any union activities around the plant. In response to Le- Forestier's question as to whether his work had been satisfactory, Ranslow re- plied in the affirmative. Then Ranslow called the paymaster down and Le- Forestier was handed an envelope containing his pay for Thursday, November 9, and Friday, November 10, and was requested to send Dressler to' Ranslow's desk. Upon Dressler reporting, Ranslow informed him that he too was to be 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laid off. Dressler asked Ranslow the reason for such action and Ranslow stated that one thing he would not tolerate was union activity and that he had just had to let LeForestier go for the same reason. Ranslow then attempted to give Dressler his pay for Thursday and through 5:30 p. m. Friday but the latter re- fused it saying he proposed to let the Union handle the situation. On the following Monday or Tuesday, November 13 or 14, 1950,' LeForestier and Dressler met Larner outside the plant. Larner professed surprise when informed that they had been discharged by Ranslow and that they considered that Ranslow's reason was their union activities. Larner then denied that union. activities played any part in Respondent's action. Both employees requested that they be reinstated. but Larner.told them 'it was impossible and .argued that he could not understand why they wanted their jobs back if they did not like conditions at the plant. LeForestier and Dressler had several conversations with Larner during the earlier part of the week of November 13 during the course which he admitted he knew something about union activities because he recognized the union rep- resentative he had met at the plant on November 14 as the same person to whom he had seen Dressler giving cards on November 10. However, Larner persisted in his denial that the men had been laid off for union activities and stated that he could prove through Fred J. Gallagher, Respondent's assistant production manager, that Ranslow made no reference to union affairs at the time he talked to and discharged LeForestier and Dressler. The two discharged employees also' talked to C. S. Robinson, Re`spondent's president, ,telling him why they be- lieved they had been discharged and why they wanted a union. Robinson. claimed he did not know why the men had been discharged and stated he left all such matters' up to Larner. B. Discussion 1. LeForestier's and Dressler's work records LeForestier entered Respondent's employment July 13, 1950, as an assembler at $1 an hour, and was increased to $1.20 an hour on August 3 aud' $1.25 an hour on August 17. On October 19, 1950,. he was made, a leadman in the assembly department. At this time, Vincent Stahlick, LeForestier's predecessor as leadman, had a "bad foot" and had asked to be relieved of his,duties as leadman because he had difficulty in doing the, walking" the work required. Stahlick was given a clerical desk job as assistant to the works manager. Upon, Stahlick's recovering from his foot condition he was returned to his former work as leadman and LeForestier was transferred to the position as assistant to the works manager, temporarily held by Stahlick. LeForestier tried the assistant's job out for 1.day and then told Ranslow, that he was not, interested in work of that character, that he was hired not as a desk man but as au assembler. He was thereupon returned to his job as assembler and was assigned to making metal flax cushions. This was new and "tricky" work which, accord- ing to the shop foreman, no one in the plant not even the engineers could do with 100 percent success and on which LeForestier did an "outstanding job." It was while engaged upon this work, or at about the time he was so occupied, that LeForestier was summarily discharged without notice. A few days after LeForestier was hired, Plant Manager Ranslow told ,General Manager Larner he thought LeForestier was a good man and a "comer." Larner took occasion to observe LeForestier's work and concluded he possessed outstanding possi- $I consider it unnecessary to resolve the conflict in testimony as to whether this con- versation occurred on November 13 or 14.' ' ROBINSON AVIATION, INC. 203 bilities as a leader. He looked forward to LeForestier's rapid advancement and put through a "most unusual" pay increase of 20 cents an hour for him. Ranslow considered LeForestier a "very good" assembler. Velas'characterized the quality of LeForestier's work both' as an assembler and as a leadman as outstanding and testified that Ranslow complimented LeForestier many times and told him he was "a good man and doing'a swell job." During the period LeForestier was leadman, a production bonus which was based upon the volume of shipments and which ranged from 5 cents to 23 cents per hour, was at its maximum 23 cents. Dressler entered Respondent's employment on July 12, 1950, at $1 per 'hour, as a punch-press operator and setup man. His pay was raised to $1.10 per hour on August 3, 1950, on which date Lainer told -him he thought his work was very good and that while other employees were getting 5 cents an hour increase he was giving Dressler an exceptional raise of 10 cents. He later shared a gen- eral 5-cent increase. Due to a childhood injury, Di essler's right leg is about 11/2 inches shorter than the left. He also has a loss of vision of approximately 50 percent in his right eye. He had worked in various capacities for 42 years. He was experienced not only as a ,punch-press operator but also as a setup man, of whom there was a serious shortage at the time he worked for Respondent. About September 19, 1950, Dressler informed Shop Foreman Velas that he was experiencing pain in his leg and back which he felt was occasioned by his having been obliged to press down upon and jump upon the old punch presses, and requested a job on the assembly line where he could sit down and work with his arms. The shop foreman complied with Dressler's request, and the latter continued to work as an assembler upon a very tedious "flying saucer" operation, which no employee liked, until about the time of his discharge without warning on November 10, 1950. During World War II, Dressler had 'been a foreman of a radar department in which were assembled machines consisting of 60,000 small parts. He never received any complaints concerning the work he per- formed from September 19 to November 10, although Ranslow had told him before September 19, at a time when Dressler was still in the punch-press department and applied for a further raise, that he had heard complaints from 2 employees concerning his work in the department. Upon learning that the 2 persons who were supposed to have complained about him were employees named "Barney" and "Johnny," Dressler confronted them. They denied hav- ing made any criticism and expressed a desire to make such denial directly to Ranslow. On one occasion, while Dressler was still working in the punch- pressroom, on the occasion of his making a presentation to Larner on behalf of the employees, Larner congratulated Dressler upon his work, said he liked him and thought he was doing very good work downstairs. Larner testified that Ranslow told him Dressler was a likely looking man, that his application for employment disclosed he had had setup experience and that he, Ranslow, did not believe Dressler's "slight infirmity" would interfere with his operating. After about 3 weeks' opportunity to observe Dressler's work, Larner testified he talked to him and raised him 10 cents rather than 5 cents "which is un- usual." On August 1, 1950, in a memorandum to Respondent's directors, Larner pointed out that Respondent was apparently hiring persons who are familiar with union organizations and that one of two recently hired employees, who from the way they handle themselves and talked, who in his opinion could be "influential," was Henry Dressler who appeared to be "an excellent workman." LeForestier, Dressler's leadman from October 9 to November 1, testified that Dressler's work was as good as that of anyone else in the assembly de- partment and that his work was on a par with that of the rest of the men he 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had working under him. Works Manager Ranslow testified that he thought Dressler's transfer to the assembly department would make a good worker out of him and that he did not remember any complaints from other employees about Dressler after his transfer. Shop Foreman Velas testified that Dressler produced work on the same level of quality with that turned out by other operators, that his crippled condition did not interfere with his work, that he was satisfactory both as a press operator and as an assembler, that he did not destroy any more dies than anyone else including Velas himself, whose par- ticular work was that of a tool and die maker, and that neither Ranslow nor any employees ever complained to him about Dressler's work in either the punch-press or"the assembly department. 2. Respondent's contentions Respondent contends that : (a) It had no knowledge of union organizing activities prior to LeForestier's and Dressler's discharge; (b) LeForestier was discharged because (1) he developed an attitude and point of view which was critical of the Company and its pay policies, (2) he was unhappy, and (3) had failed to live up to the Company's high expectations ; (c) Dressler was dis- charged because (1) he did not prove to be so good an operator as it had been assumed he would be, (2) his activities in the punch-press department were be- coming a burden rather than an aid, (3) his aptitude for the particular kind of work',-done in the assembly room was not particularly imprbssive^ (4)' he damaged a number of dies disproportionate to the quantity that might be ex- pected of an average experienced setup man, (5) he talked excessively to other operators, and (6) he wandered to other benches and departments. 3. Respondent's knowledge of union activities The testimony adduced by the General Counsel that Respondent's employees engaged, sometime before November 10, 1950, in discussing their desire to have the plant unionized and the General Counsel's contention that Respondent was aware of this fact are both supported by Larner's memorandum of August 1, 1950, wherein he advised the directors, for current information purposes, that Respondent was hiring persons familiar with union organization, that a number of Respondent's employees were friendly with people employed in neighboring plants which were unionized, and referred to particular employees, including Dressler, who could well be "influential" and had more than a casual interest in unions. As appears from the minutes of Respondent's board meeting held on August 2, 1950, Larner reported that there was apparently increasing interest in union organization among the shop personnel. Further corroboration of they fact that Respondent's employees, known to Respondent, had at least evinced an interest in organizing the shop is furnished by Larner's memorandum ad- dressed to the directors on November 17, 1950, 1 week after LeForestier and Dressler were discharged. Here Larner stated that it was his belief that, as long as 3 or 4 months before, Respondent had hired two or more persons actively interested in such organization and that the two men, LeForestier and Dressler, who were discharged on November 10 had apparently been the center of union activity' and had made complaints concerning the competency of the shop 4 Undoubtedly it will continue to be Respondent's contention that this information did not come to Respondent's attention until November 10. As will later appear, how- ever, I shall find that Larner knew or believed LeForestler and Dressler were "the center of union activity" at the time they were discharged on November 10. ROBINSON AVIATION, INC. 205 manager. It has been the Board's experience that in a small shop such as this, where rank-and-file workers rub elbows with management and its supervisors, knowledge of employees union predilections, desires, interest, sympathies, and activities almost inevitably becomes drawn to an employer's attention. On the morning of November 10, union application cards were distributed by Dressier and LeForestier and returned to them by the forty-odd employees who had signed the cards, not only in the locker room but in the main shop, all parts of which were within plain sight of the works manager's desk. The talk and agitation attendant upon the distribution, signing, and returning of the cards was observed by the shop foreman who indeed was himself proffered an appli- cation for membership in the Union. General Manager Larner admits that on November 10 he had seen Dressler outside the plant together with a person that he at one time had thought was a union organizer. He claimed at the hearing, however, that he saw the two men at about 10: 15 a. m. and that not until he heard Clydesdale, the Union's Grand Lodge representative, testify that he did not arrive at the plant till about noon , did he conclude that the person he had seen with Dressler must have been someone other than Clydesdale or a union organizer. Larner's testimony that he and Ranslow left the shop at about 10 or 10: 15 a. m. and proceeded by automobile to Dover arriving there at about 1: 15 p. in. requires scrutiny. He testified that the distance from Teterboro, where Re- spondent's plant is located , to Dover, where he transacted businesss with Orange Screen Company, is 35 miles , that the driving time is 1 hour to 11/4 hours and that in the afternoon he left Orange Screen Company at approximately 3 o'clock and arrived at the Company's plant at almost exactly 4 o'clock. Assuming that Larner and Ranslow left Teterboro as early at 10 or 10 : 15 a. in. and arrived at Dover not later than 1: 15 p. in., the question why it took them 3 or 31/4 hours to make a 1-hour trip immediately arises. Respondent seeks to answer this ques- tion by offering testimony that their officials stopped en route for lunch at O'Dowd's Restaurant on Route #6, where they spent a maximum time of 11/2 hours or a minimum time of 45 minutes. Respondent also claims that it re- quired from between 11/4 to 13/4 hours to drive from Teterboro to O'Dowd's, and from one-half to three-quarters of an hour to drive from O'Dowd 's to Dover. No evidence seeking to show that there was any shorter route between Teterboro and Dover than via Route #6 and past O'Dowd's was offered and even without my taking judicial notice of any fact including the distances between Teterboro and O'Dowd's and O'Dowd's and Dover, I can do no other than conclude that Larner and Ranslow followed the same route both going to and returning from Dover, that a normal running time from Teterboro to O'Dowd 's would be ap- proximately 40 minutes , and from O'Dowd's to Dover would be approximately 20,niinutes. I cannot therefore believe that these business executives consumed from between 11/4 to 13/4 hours in traveling between Teterboro and O'Dowd's and from between one-half to three-quarters of an hour in journeying the rest of the way from O'Dowd's to Dover. It is, of course, reasonable to expect that Larner and Ranslow took some time to eat around noon on November 10, but I do not deem it necessary to find whether they lunched before 12: 10 p. in. at the plant where meals brought in on a food wagon were available to them in the upstairs conference room where they usually took lunch or at O'Dowd's Restaurant, or whether they arrived at Dover as early as their unsubstantiated testimony seeks to have one believe they did, because I am convinced that Lar- ner and Ranslow did see Dressler and Clydesdale together just outside Re- 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's premises near the latter's automobile ° as they drove away, and that the time they saw them was not 10 or 10: 15 a. in., but about 12: 10 p . in., after which time Larner and Ranslow had ample time to get to Dover for an afternoon meeting whether it took place at "approximately 1: 15 p. in." or somewhat later. It is clearly apparent from the testimony of Clydesdale and Dressler that the two men met at about 12: 05 or 12: 10 p. in., that Dressler handed over the signed authorization cards to Clydesdale while both men were in Respondent's parking space directly in front of Larner's office window, and that they then walked out of Respondent's premises directly to Clydesdale's automobile stationed outside the,Company's premises at the place both Larner and Ranslow testified they-saw a car beside which Dressler and another man were standing, where Clydesdale supplied Dressler with union literature before Clydesdale drove away. There appears to have been no occasion whatsoever for Dressler to have gone outside Respondent's premises to talk to anyone beside a car on the highway at 10 or 10: 15 a. m., and I find on Dressler's credited testimony that he did not do so. In fine, I am satisfied and find, that under all the circumstances, and upon sub- stantial evidence presented by the General Counsel as well as upon reasonable inferences that may be drawn from the testimony of Larner and Ranslow, including admissions made by them that Respondent had become aware of the anion interests of its employees as early as August 1, 1950, and was in general, if not in detail, cognizant of the particular activities, in which Dressler and Le1,i orestier.played the leading, prominent, and conspicuous parts, that'took place on the morning of November 10, 1950. While denying it had any knowledge of the union interest of its employees and the union activities of LeForestier and Dressler, Respondent apparently takes the position that it not only was not opposed to the unionization of its shop but that it welcomed such an event. Yet, its statements a contained in bul- letins issued to its employees stressing the disadvantages of self-organization, asserting its belief that its employees would be better off if they should continue to deal directly with their employer rather than through strangers, and that employees should consider what it would mean to them to have outsiders repre- sent them and why outsiders wished to represent them, and arguing that em- ployees had achieved substantial benefits without the intervention of outsiders or the payment of initiation fees, dues, or assessments, as well as Larner's testimony to the effect that Respondent's President C. S. Robinson and Secretary D. H. Robinson were apprehensive of the results that might attend the organization of the plant are, none of them, supportive of this position. Rather do they dis- close on the part of top management, if not an adamant opposition to, at the very least an antipathy toward unions and a desire to avoid if possible the organiza- tion of its plant. A further indication of Respondent's aversion is furnished by the fact that in September 1950, 1 month or so after Larner's memorandum to the directors recognizing the trend toward unionism, Respondent instituted, I find for the purpose of discouraging such trend, what it termed "a very liberal bonus program" which made it possible for even the most unskilled persons coming into the plant starting at $1.05 per hour to earn as high as $1.28 an hour, thereby making their pay equal to or better than that received by employees of other f•mployers in the area which were unionized. 0 Larner testified he saw Dressler and another gentlemen standing beside a car which he recognized as a black Buick. Neither Clydesdale nor Dressler were asked what make of motor vehicle Clydesdale drove up in and left outside the gate. BIt is not to be inferred, however, that I consider any of these statements exceeded Respondent's right of free speech and I do not so find. 7 The Robinsons did not testify. ROBINSON AVIATION, INC. 207 By way of further attempting to disassociate the discharges of LeForestier and Dressler from any implication of antiunion motivation, Respondent adduced testimony to the effect that the decision to discharge LeForestier and Dressler had been made on a somewhat indefinite day earlier in the week than November 10. In an effort to establish this fact the evidence of Sam Licata, Respondent's payroll clerk, was introduced. In direct examination, Licata testified that on November 9 Larner informed him LeForestier and Dressler were going to be discharged the following day and ordered him to prepare their pay for the fol- lowing-night. In cross-examination, Licata testified that he was reasonably sure that he received these instructions on November 9, that he was not absolutely sure but if he had a choice of November 9 and November 10 be would take No- vember 9. Works Manager Ranslow testified he did not know when the terminal pay was made up. Shop Foreman Velas 8 testified credibly and I find that during his 5 years with Respondent, it was customary when necessary to discharge employees to give them 2 or 3 days' advance notice and to pay them their past accrued earnings and current pay to the date of their actually getting through, in one payment, that he knew of only one other employee, apart from LeForestier and Dressler, who was first notified he was to be laid off on the very day of his discharge, that this employee was paid through that last day of employment in one payment and not in two separate payments as were LeForestier and Dressler, and that he, in his capacity as shop foreman rather than Ranslow, had in all in8tanees,other:than those of LeForestier, and8Dressler,,,been the, person,to notify. employees that they were to be discharged and handed them their pay envelopes. That this usual procedure was not followed with respect to LeForestier and Dressler is significant, becomes most apparent when one reads Respondent's notices to its employees (which notices, to say the least, had as one of their purposes an attempted dissuasion from collective bargaining) wherein it asserted that when it was necessary to lay off employees, all men including those laid off realized that the Company had done everything possible to keep them at work,9 had tried to help employees overcome difficulties whether related to their work -or their personal affairs, had always aimed its policies for the welfare and future -security of all its personnel, had always tried to be fair in all its dealings with its employees, and had worked out the answer to problems in a spirit of coopera- tion and respect for each other. In a final essay to maintain the benignity of its motives and calumniate the complainants, Respondent introduced the testimony of Fred J. Gallagher, Re- spondent's assistant production manager. In last analysis Gallagher's testimony amounted to nothing more than that while he sat at a desk adjoining Ranslow's for a part, of the time during -Ranslow's• conversations with LeForestier and 8 Respondent points out In its brief that Velas has a bias against Ranslow, but has not either in argument or brief directly urged that his testimony should not he believed. Indeed, Respondent In argument emphasizes its claim of Respondent 's lack of knowledge of union activities by requesting I believe Velas' testimony that he did not inform Larner or Ranslow that he saw the passing and signing of cards on November 10. Velas was dis- .harged by Respondent on December 8, 1950, following an incident on the same clay when Larner took umbrage when Velas asked Respondent's secretary, rather than Ranslow, what to do about a person who was drunk on the job. Respondent asserts that It discharged Velas because he was disloyal, uncooperative, and critical of Ranslow. Yet on August 25, 1950, Respondent's then general manager recommended Velas as "a very loyal and compe- tent employee . . . honest, trustworthy and diligent." From my, observation of Velas and on the basis of the many probabilities and consistencies supplied by the entire record I find that his testiniony was truthful and I believe it. 8 Respondent's shipments increased from 43,520 ( units) in November 1950 to 84,909 in December, to 97,625 in January 1951, to 136,940 in February, and to 142,600 in April. As of September 1951 , Respondent's present monthly shipments were considerably in excess of the foregoing figures. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dressler when they were discharged, he did not hear anything said about either a union or union activities and that sometime during the following week he had the "impression" that LeForestier said to him "something like" he wished "you [Gallagher] wouldn't say anything contrary to the fact that-I [LeForestier] was fired for union activity in promoting a union or something like that." It seems scarcely necessary to burden the point that this testimony constitutes no substantial evidence by stressing the many parts of the record showing that Gallagher admittedly was not present during, and did not hear, all of the con- versations in question , the confusion, noise, and interruptions surrounding the conversations making it impossible or unlikely that Gallagher could hear all that was said even when he was at his desk and his uncertainty and indefiniteness concerning what might have been said. Suffice it to say that Gallagher's testimony in no impressive measure succeeds in rebutting or controlling the complainants' testimony or in supporting the Respondent's burden of going forward with evidence convincingly meeting the prima facie case I find has been made out by the General Counsel. 4. Respondent's motivation in discharging LeForestier and Dressler Extremely vague are the reasons asserted by Respondent for having discharged LeForestier. Of course it is fundamental an employer may without violating the Act discharge any employee for any reason whatsoever or for no reason what- soever, so long as the reason is not one proscribed by the Act. But here the causes ascribed for its action are so nebulous and the propinquity between the abrupt discharge of the one of the two active leaders of the agitation for the Union, by an employer who was aware of and disposed to resist the movement is so snug that the reasons of Respondent are wholly unconvincing. In his memorandum to the directors dated November 17, 1950, Larner stated that Le- Forestier was discharged because of a very obvious slowdown and poor produc- tion in the assembly department in which he was located. At the hearing however, Respondent abandoned this contention when confronted with the fact that under LeForestier's leadership production on the assembly line was at its maximum peak of bonus performance and claimed he was discharged because he was critical of Respondent's pay policies, unhappy, and had not lived up to expectations. Implicit obviously in Respondent's concern regarding LeFor- estier's unhappiness over the question of pay was its apprehension that he would take the very step that he did take (and it feared he would take and learned he had taken), that is, lend his support to the organization of a union in the plant in order to achieve his pecuniary purpose. Acceptance of Respondent's contention that LeForestier was discharged from the job of assembler upon which he was engaged on November 10, which was the position he wanted and had been hired to occupy and in which he manifested, by admission of Respondent's officers and supervisors themselves, "outstanding possibilities" and demonstrated that he was "a good man and doing a swell job," for the fatuous reason that he had failed to live up to the Company's high expectations, would place an unbear- able strain on one's credulity. Almost equally indistinct are the reasons asserted by Respondent for having discharged Dressler. If, as claimed by Respondent, Dressler did not prove to be so good an operator as it had assumed he would be, still its general manager in- formed the directors he was "an excellent workman ," the shop foreman testified he produced satisfactory work both as a press operator and assembler on the same level with that of other operators, and the leadman testified that his work was as good as anyone else in the assembly department . The spuriousness ROBINSON AVIATION, INC. 209 of Respondent's claim that Dressler was discharged because "his activities in the punch press department were becoming a burden rather than an aid" is manifest because Dressler was not working in that department at the time of his discharge and had not'worked there sin'ce `September 21. Dressler's "activities" so much of a "burden " to Respondent , I am convinced , were those recognized by Larner as long as 3 or 4 months before November 17, 1950 , when Dressler was working in the, punch department and Larner marked him as an employee who could well be "influential" in union organization and as a man who would and proved to be at the "center" of union activity. Another of the several alternative and conflicting reasons given by Respondent for Dressler's discharge was that his aptitude for assembly work "was not par- ticularly impressive." No claim, be it noted , was made that Dressler was an unsatisfactory assembler as indeed it could not be made in view of Respondent's admission that Dressler was "an excellent workman " and the testimony that his work was at least as good as that of any other assembler . Respondent's only crticispn of the work Dressler turned, out (without regard to whether or not on conflicting testimony such,'criticism was -justifiable ) related to his work as a punch presser from which job, as already pointed out, he was transferred long before he was discharged. I am unable to believe , then, assuming the truth of Respondent's assertion that Dressler, while in the punch-press department, damaged a number of dies disproportionate to the quantity that might be expected (an assertion flatly denied by Respondent's shop foreman ), that such conduct had anything whatsoever to do with his discharge from another job many weeks after he had been transferred from punch pressing on his own request. The final reasons for Dressler's discharge thrown in by Respondent are that he talked to other operators and wandered to other benches . These "reasons" impress me as even more palpably piscine pretenses than most of the others and as not worthy of extended discussion . Undoubtedly Respondent was not happy to see a "center of union activity" walking_ around , and. talking to other, em- ployees, and feared the possible results of such activity . But there is abundant testimony in the record, and I credit it, that Dressler did no more talking than other employees, that the nature of his work was such that he was required to walk around to procure parts and for other purposes , and that he "wandered" no more than other employees on jobs similar to his. Among all of Respondent's employees Dressler was, and was recognized by Respondent to be, far and away the most active advocate of self-organization and the most conspicuous and ardent worker and organizer in behalf of the union. 5. Conclusions a. The discharges I And that on November 10, 1950, Respondent discharged Michael E. Le- Forestier and Henry A. Dressler because of their activity on behalf of the Union. in so doing, Respondent discouraged membership in the Union and interfered with, restrained, and coerced its employees in the exercise of the rights conferred by and guaranteed in Section 7 of the Act. b. Independent 8 (a) (1) violations The General Counsel offered no testimony supportive of the allegation that it threatened and warned certain of its employees that they should know better than join the Union. Evidence was introduced which showed , and I find, that Respond- 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent did on November 10, 1950, inform two of its employees that it would not tolerate union activities. There was evidence only of this one isolated instance of threat and warning. In its context I regard it as revelatory of the reason for the discharges of LeForestier and Dressler and consider the statement as a derivative rather than as an independent violation of Section 8 (a) (1). For this reason and because it appears that shortly subsequent to the happening of the events giving rise to the issuance of the complaint Respondent, whether due to repentance and change in policy or not," recognized and entered into a ebl-, lective bargaining agreement with the Union, I am of the opinion that the effec- tuation of the policies of the Act will be made no more secure by ordering Respondent to cease and desist from threatening or warning employees with reprisals than by means of the remedy I propose to' recommend. Therefore I find that the allegation in the complaint that Respondent from on or about the month of November 1950 threatened and warned certain of its employees that it would not tolerate union activities has not been shown to be an independent violation of Section 8 (a) (1), and that the allegation that during the same period Respondent threatened and warned certain of its employees that they should know better than to join the Union has not been proven. Accordingly',' I shall recommend that these allegations be dismissed. 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 Respondent described in Section I,;above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to disputes burdening and obstructing commerce and the free ,flow of commerce. V. THE REMEDY Having found that Respondent engaged in unfair labor practices; I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. ' Having found that Respondent has discriminated in regard to the hire and tenure of employment of Michael E.. LeForestier and Henry A. Dressler, I recommend that Respondent offer Henry-A. Dressler full and immediate employ- ment to his former or substantially similar position" without prejudice to his seniority or other rights and privileges and 'make Michael E. LeForestier and Henry A. Dressler whole for any loss of pay they may have. suffered by reason of Respondent's discrimination' against them by payment to each of them a sum of money equal to the amount of wages he would have earned from November 10, 1950, to the date of a proper offer of reinstatement in the case of Dressler, and from November 10, 1950, to the date of his other employ- ment in the case of LeForestier. As LeForestier has stated he does not desire reinstatement by Respondent, I shall not recommend that Respondent offer him employment. Loss of pay will be computed on the basis of each separate calendar month or portion thereof during the period from November 10, 1950, to the date of a proper offer of reinstatement in the case of Dressler, and to the (late of his other employment in the case of LeForestier. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal "But see N. L. R. B. v. Vincennes Steel Corp.,'117 F. 2d 169, 173 (C. A. 7). 11 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. ROBINSON AVIATION' INC. 211 to that which he normally would have earned for each such quarter or portion thereof, his net earnings,' if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter" In accordance with the Woolworth decision it will be recommended that Respondent, upon reasonable request, make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay. The unfair labor practices found above disclose a purpose and intent to inter- fere generally with the rights of employees guaranteed by the Act and predicate a threat of other and related unfair labor practices in the future. Accordingly, it will be recommended that the Respondent cease and desist from in any manner interfering with, restraining, and coercing its. employees,in,the exercise of rights guaranteed,by the Act. MafI Departmentt'Stores; 326 U•. S. 376. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: r CONCLUSIONS OF LAW 1. International Association of Machinists, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Michael E. LeForestier and Henry A. Dressler thereby discouraging membership in the above-named labor organization, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the aforesaid acts of discrimination, Respondent has interfered with, restrained, and coerced its eniplbyees in the exercise of, the rights guaranteed in Section V of the Act, and thereby has engaged in-and i's'engaging in unfair, labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. Respondent has not interfei;ed',with, restrained, or coerced its employees in violation of Section 8 (a) (1) of the Act by threatening and warning them it would not tolerate union activities and that they should know better than join the Union. [Recommendations omitted from publication in this volume.] Appendix A NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL, or im any `other labor, organization by discriminatorily discharging employees or, by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employ- ment. , WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to 'self-organization, to form labor organizations , to join or assist the above-named union, or any labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities foi the purpose of collective "Crossett Lumber Couponii, 8 NLRB 440 'IF. W Wooliroiti Coup(inq. 40 NLRB 281) 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining or other mutual aid or protection, or to refrain from any or all of 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 Henry A. Dressler immediate and full reinstatement to his former or substantially similar position without prejudice to his seniority and other rights and privileges, and make Henry A. Dressler and Michael E. LeForestier whole for any loss of pay suffered as a result of the discrimina- tion against them. All our employees are free to become, remain, or refrain from becoming or re- maining members, of the above-named union or any other labor organization except as that 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 not discriminate in regard to the hire or tenure of employment or any term or condition of employment against any employee because -of membership in or, activity on behalf of•1any•such labor organizat4on.- ROBINSON AVIATION, INC., 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. HAWTHORNE-MELLODY FARMS DAIRY OF WISCONSIN, INC., and CHAuF- FEURS & TEAMSTERS LOCAL No. 579, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, PETrrIONER. Case No. 13-RC-2396. May 20,1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John P. von Rohr, hearing officer. The hearing officer's rulings made at the heaving are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer.' 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner requests that the Board find appropriate a unit of all production and maintenance employees at the Employer's White- 1 Local Industrial Union No. 1705, CIO, was granted intervention at the hearing by the hearing officer upon the showing of a contractual interest in the representation of these employees. 99 NLRB No. 30.