Rodgers Hydraulic, Inc.

In the Matter of RODGERS HYDRAULIC, INCORPORATED and DISTRICT 50, UNITED MINE WORKERS OF AMERICA In the Matter of RODGERS HYDRAULIC , INCORPORATED and UNITED ELEC- TRICAL, RADIO & MACHINE WORKERS, C. 1. 0., LOCAL 1139 Cases Nos. C-2610 and C-2611 respectively.Decided July 19, 1943 DECISION AND ORDER On May 14, 1943, the Trial Examiner issued his Intermediate Re- port 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 out in the copy of the Intermediate Report attached hereto. Thereafter the respondent filed exceptions to the Intermediate Report and a brief in support of the exceptions. Oral argument, in which the respondent and the Union participated, was had before the Board on June 17, 1943. The Board has considered the rulings of _the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's brief and exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the exceptions and qualifications noted below : 1. The Trial Examiner found that the respondent by certain speci- fied acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We agree and find further that the totality of the respondent's conduct 1 reveals a course of action calculated to, and which effectively did, defeat the rights of self-organization of its employees in violation of the Act. I This is evidenced by the posting of the Time 9 . 1942. notice ; by Superintendent Rodgers' statement to Sutherland on June 10 discouraging unionization , his criticism of Sutherland on June 12 for joining the U M. W., his later criticism of Sutherland for the asserted reason that Sutherland was engaging in organizational activities , and his questioning of employee Wennerstrom as to whether Sutherland was still tiymg to organize ; and by the dicciinihiatory discharge of Floyd Johnston 51 N. L. R. B., No. 83. 417 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Trial Examiner found that the Committee was and is a labor organization within the meaning of the Act and that the re- spondent dominated and interfered with its creation and adminis- tration, and contributed support to it. We do not concur in these findings. While the, matter is not entirely free from doubt, \ve' feel that the evidence is insufficient to warrant a finding that the Commit- tee was created for the purpose of dealing with or did, in fact, deal with the respondent, in whole or in part, concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of work. Accordingly, we find that the allegation of the com- plaint that the Committee is a labor organization within the meaning of Section 2 (5) of the Act is without support. We shall therefore dismiss the allegation that the respondent violated the Act by domi- nating and interfering with the creation and administration of the Committee, and contributing financial support to it. However, since the circumstances surrounding the formation and administration of the Committee clearly negative any suggestion of its independence, and since the respondent has shown a predisposition to commit unfair labor practices, we feel constrained to point out that, should the Committee, which appears to have been inactive since July 1942, function hereafter as a labor organization, then the domination and support inherent in its creation and administra- tion would transform the Committee into a management substitute for self-organization of employees and' genuine collective bargaining and would render the Committee illegal.2 Accordingly, in order to insure to the employees the full and free exercise of their rights under the Act without interference, restraint, or coercion by the respondent, we shall order that, in such eventuality, the respondent should refrain from recognizing the Committee as the collective bargaining repre- sentative of its employees. 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, Rodgers Hydraulic, Incor- porated, Saint Louis Park, Minnesota, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Electrical, Radio & Machine Workers, C. I. 0., Local 1139, or any other labor organiza- tion of its employees by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to 2 See our discussion in Essex Rnbber Co., hic, 50 N L. R B. 283. RODGERS HYDRAULIC, INCORPORATED 419 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 rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Refrain from recognizing the Committee, in the event that it should be,.rei ivied, as the representative of any of its employees for the purpose, in whole or in part, of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work; (b) Offer to Floyd Johnston immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges; (c) Make whole Floyd Johnston for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sun of money equal to the amount which he normally would have earned as wages during the period- from the date of such discrimination to the date of the respondent's offer of reinstatement, less his' net earnings during such period; (d) Post immediately in conspicuous places in its plant in Saint Louis Park, Minnesota, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its em- ployees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs_2 (a), (b), and (c) of this Order; and (3) that the respondent's employees are free to become and remain members of United Electrical,.Radlo &-Machine Workers, C. I. 0., Local 1139, or District 50, United Mine Workers of America, or any other labor organization of its employees, and that the re- spondent will not discriminate against any employee because of his membership or activity in those or any other labor organization; (e) Notify the Regional Director for the Eighteenth Region in writing within ten (10) days from the receipt of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges, that the Committee is a labor organization within the meaning of Section 2 (5) of the Act and that the respondent has engaged in unfair labor practices within the meaning of Section'8 (2) of the Act, be, and it hereby is, dismissed. 540612-44-vol 51-28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Mr. Francis X. Helgesen and Mr. Harry Browne, for the Board. Mr:,E. E:,Eder, of Saint Louis Park, Minn., for the 'respondent. Mr. Harold Moon, of Saint Paul, Minn., for the U. M. W. STATEMENT OF THE CASE I Upon amended charges filed, respectively, by District 50, United Mine Workers of America, herein called U. M. W. and United Electrical, Radio & Machine Workers, C. I. 0., Local 1139, herein called U E.' the National Labor Relations Board, herein called the Board, by its Regional Director for the Eighteenth Region (Minneapolis , Minnesota ), issued its consolidated2 complaint dated April 3, 1943, against Rodgers Hydraulic, Incorporated, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the consolidated complaint with notice of hearing thereon, were duly served upon the respondent, the U. M. W., the U. E. and upon Lloyd Teeuwen, one of the members of the Committee, alleged in the complaint to be a union organization dominated by the respondent. Concerning the unfair labor practices the complaint alleged in substance that the respondent: (1) from on or about June 1, 1942, and since questioned its employees about their union activities, warned and discouraged them against affiliation with or activities on behalf of the Unions, made disparaging and derogatory statements about the Unions and notified its employees that they would not receive benefits through collective bargaining with the Unions; (2) on or about June 12, 19,42, and since dominated. and interfered with' the, formation and administration of the Committee and contributed financial and other support thereto; (3) on or about January 16, 1943, discharged Floyd Johnston and there- after refused to reinstate him because of his union membership and activities; and, (4) by the foregoing acts, interfered with,' restrained and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. On April 8, 1943, the respondent filed its answer admitting the allegations con- cerning the nature of its business but denying that it had engaged in any unfair labor practices. It admitted the discharge of Johnston but alleged it was for just cause, and specifically denied that the Committee was or is a labor organiza- tion within the meaning of the Act. Pursuant to notice a hearing was held on April 19 and 20, 1943, at Minneapolis, Minnesota before J. J. Fitzpatrick, the undersigned Trial Examiner duly desig- nated by the Chief Trial Examiner. The Board and the respondent were repre- sented by counsel, the U. M W by an official. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce'evidence'bearing on the, issues was afforded all parties. At the conclusion of the Board's main case the respondent moved to dismiss because of lack of evidence to sustain the allegations of unfair labor practices in the complaint. The motion was denied. At the conclusion of the hearing a motion by Board's counsel to conform the pleadings to the proof as to names, dates and other formal matters was granted without objection. At that time also, counsel for the Board and the respondent presented oral argument. The parties i The U M W amended charge was filed Maich 31, 1944 and the amended charge of U. E on March 29, 1943 The two,unions will herein he collectively called the Unions. 2 The order consolidating the two cases was issued April 1, 1943 RODGERS HYDRAULIC, INCORPORATED 421 were advised of their right to file briefs with the undersigned after the close of the hearing. No briefs have been filed. After.tbe close of the hearing and on May 11, 1943, pursuant to a stipulation entered•rnto by Board's counsel and the attorney for the respondent, the under- signed ordered certain corrections made in the transcript of the record. Upon the record thus made and from his observation of the witnesses the undersigned makes the following : FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Rodgers Hydraulic, Incorporated, is a Minnesota corporation engaged in designing, manufacturing and distributing hydraulic press equipment. Its principal office and place of business is located in Saint Louis Park, Minnesota, a small 'community located within a few miles of Minneapolis. For the year ending DeceniIer- 31, 1942, the respondent used materials and supplies amounting in value to approximately $100,000, 90 percent of which was purchased in States other than the State of Minnesota. During the same period the total sales of its finished products amounted to approximately $400,000, about 90 percent of which was sold and shipped to points outside the State of Minnesota. It employs approximately 125 workers. The respondent in its answer and at the hearing admitted that it was engaged in interstate commerce as alleged in the complaint.' II THE ORGANIZATIONS INVOLVED District 50, United Mine Workers of America, United Electrical, Radio & Machine Workers, C. I. 0, Local 1139 and the Committee are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint and coercion; domination of the Committee; discriminatory discharge of Johnston 1. Events during U. M. W. activities During the latter part of the year 1941 and early in 1942 the U. M W. was engaged in organizing the employees of the Republic Creosote Company, adjoin- ing the plant of the respondent, in Saint Louis Park, Minnesota. The organiza- tional efforts consisted of distributing union literature on 4 or 5 occasions openly between November 1941 and February 1942, on the street in front of the office of the Republic Creosote to its 150 or 200 employees. The Republic Creosote office is about one fifth of a mile from the office of the respondent but on the same street in a sparsely settled section of the community' On April' 10, 1942, the respondent entered into individual written agreements with all its employees enjoying 6 months or more seniority whereby it agreed to pay each of them a bonus in the form of preferred stock. This stock, how- ever, was to be deposited with the respondent as a pledge that the employee would comply with the terms of the agreement which provided that if the 3 The respondent at the time of the healing was engaged 100 percent on defense contracts 4 Board's counsel also contended that the United Electrical Radio & Machine Workers, C I 0, Local 1139 made some effort to organize the respondent's employees in March 1942 As hereafter found, the U. E efforts in March 1942 consisted of isolated solicitation of one or two'of the respondent's employees at their homes by Carlson, the U E. representa- tive There is no evidence that the respondent had airy kuotiiledge of this effort of Cail- son at the time. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee "leaves the service of the company, voluntarily, or is discharged for cause, as to either of which in case of dispute, the Board of Directors of the Company shall be the sole judges, then said employee shall thereupon cease to have any right or interest under this agreement in the shares of class `A' stock" and the stock would be transferred back to the respondent as liquidated damages. Although this was the first instance when the respondent had ever issued any kind of a bonus to its employees, the testimony of John L Rodgers, the respond- ent's president, is credited that for some time prior thereto the respondent had been losing employees who were attracted by higher wages to other positions; that in about the fall of 1941 the respondent's officials roughly formulated a method to offset these defections of its employees which finally developed into the stock bonus agreement; that the agreement had been prepared, printed and posted on the company's bulletin board for 2 weeks prior to April 10; that by April 10 all the employees were familiar with the plan and as a result all; eligibles, signed the agreement within a period of an hour's time, on that date.` About April 28 or 30, 1942, the U. M W.'s organizing efforts were extended to include the respondent's employees.' On June 2, 1942, the Union by letter advised the respondent that it was endeavoring to organize the employees. Within a day or two after this letter notices were distributed by the Union in front of the respondent's plant advising of meetings of the employees of the night shift at 3: 30 p ni and of the (lay shift at 5 45 p in on Julie 9 in a local hall. A day or two before June 9 Vern Wenneistrom, an employee, brought the union notice to the office of President Rodgers, and stated that there was considerable talk among the respondent's employees as to whether they would be discriminated against if they joined the Union Rodgers replied that`,'no employee would be discriminated against if he joined a union. Other employees made similar inquiries of Rodgers' As a result, on June 9 the respondent posted on the bulletin board in the plant it copy of the union notice and underneath it a statement prepared by the respondent's attorney as follows: NOTICE TO ALL EMPLOYEES The above posted notice, distributed among our employees by United Mine Workers of America C I 0., has been brought to our attention, and we have been asked by some of our employees whether this movement has received our sanction and whether or not they will be obliged to join a union. It is for this reason that we are posting this notice to all employees' so that they may be clearly advised that under existing statutes it is the privilege of any employee to join or not to join a union as he may personally 5 Rodgers' further testimony is credited that after the government's "job freezing" order went into effect in 1942 the reason for the agreements with the individual employees ceased to exist and by December 1942 all the employees affected were paid the bonus in cash and the agreements were cancelled 0 Martin Schempt, at the time repiesentative for the U M W testified that about April 28 or 30, 1942, lie talked with "one or two" of the respondent's employees about form- ing the U M. W Apparently no fuither efforts towards organizing were made until the following June. a Although the record does not disclose any union organizational efforts in the respond- ent's plant prior to 1942, the subject has been a controversial one among the employees A number of the older workers, including Glen "Chip" Roberts, Victor Sutherland, Louis Johnson and Lloyd Teenwen, were known to be opposed to a union Sutherland's unconti a- dicted testimony is credited that during the period of a year and one half to two ye.irs prior to June,.,1942, on several occasions lie expressed himself to Superintendent il3odgers, as being opposed to unions and that the superintendent had, stated that he also was opposed to unions. RODGERS H1,DRAULIC, INCORPORATED 423 desire. This company has no right under the law to interfere with any employee's right to do this, and this company has no intention of invading your personal rights in this regard or in any other way. However, we wish to declare emphatically to every employee of this company that lie will never be forced to join a union by any act of this company."' He will be as acceptable to this company in the future as an employee regardless of whether lie elects to join a union or not to join a union. In view of the inquiries which have been made of us, we feel that we owe it to all of our employees to make an open and frank declaration to you upon this matter. RODGERS HYDRAULIC INCORPORATED, By -------------------------------> J. L. RODGERS, President." On June 9 several of the older employees working on the day shift including Glen "Chip" Roberts, Victor Sutherland, Louis Johnson, and Lloyd and Roy Teeuwen at their request were given time off to attend the 3: 30 meeting, which meeting was also attended by about 20 employees from the night shift.' At the meeting most of those from the night shift signed applications to join the Union, although the above named day workers did-not. Roberts, stated during^the°meet- ing that the day-shift employees present had been delegated by the employees to ascertain what the Union had to offer and that before joining they would secure respondent's permission to do so. Roberts also said that the night shift was made up of inexperienced, inefficient workers and that they had no complaint or reason to want a union. This group, including Roberts, also attended the 5: 45 meeting. The record is not clear as to just what transpired at that meeting except that there was some question raised by some of the employees with ref- erence to the individual stock bonus agreements precluding the employees from joining the Union. Gerald Keller, a representative of the U. M. W. advised the men that signing the individual bonus contracts would not interfere with their right to join the Union. At the conclusion of the first meeting Sutherland and the day group returned to the plant and remained until the day shift ended at 5:30 p. in. On his return to the plant' Sutherland heard talk that some of the clay group had attended the 3: 30 meeting at the instigation of the respondent. Because of these rumors, on the morning of June 10 Sutherland told Superin- tendent Rodgers, that if some of the group had been sent by the respondent to the night-shift union meeting it was a "heel" of a trick in view of the respondent's posted notice of, impartiality. Rodgers denied that the'respondent had-sent the day group to the meeting. Sutherland then suggested that, if the employees were going to unionize, the U. M. W. appeared to have a "pretty fair set up." Rodgers replied that "when you unionize , then you had to hire your help through the union and that made it pretty tough." 30 A later union meeting, also advertised by leaflets, was held the evening of June 11 and attended by about 20 employees. Roberts told the meeting that it would be impossible to have the Union in the respondent's plant, that seniority would not work because many of the workers were new employees; that the employees would gain nothing by joining a union 8 President Rodgers admitted at the hearing that the third paragraph of the statement "probably" meant that the respondent would not sign a closed shop contract with the Union i ° Sutherland testified that he heard that. Roberts and the others were leaving work early to attend the meeting, so he asked and obtained permission to do likewise ' All the day group "checked out" to attend the 3 : 30 meeting. 10 This testimony was not denied by Rodgers. 424 D.EiCOISIONS OF NATIONAL LABOR ' RELATIONS BOARD which paid big-salaries to its representatives and was only interested in collecting dues and calling strikes ; that the respondent was establishing an efficiency com- mittee to handle questions concerning, grievances and seniority and that there would therefore be no need for a union.11 Roberts was a machine worker and not a supervisor. There is no evidence that he, or the other members of the day group who attended the first June 9 meeting, represented management or were authorized by the respondent to speak for it at that time 'or at the June 11 meeting 12 Sutherland became disgruntled because of Roberts' efforts to dis- courage organizing among the night shift, and signed an application to join the Union at the June 11 meeting. Early the next morning he went to Superintendent Rodgers for the purpose of telling him that he had signed an application but found that the superintendent had already been informed of that fact. Suther- land testified that he went to inform Rodgers that he had joined the Union because he figured that the superintendent would hear of it anyway and he wanted to be the first to tell him. Rodgers accused Sutherland of being "two- faced" because Sutherland had previously been against the Union. George Rodgers, production manager for the respondent, who was present then said to Sutherland "Well, Vic, you are out to organize the place then are you?" Suther- land responded in the affirmative. After some further discussion Sutherland stated that he would have nothing further to do with organizing the plant's On June 12, 1942, the respondent posted the following notice on its bulletin board in the plant: RODGERS HYDRAULIC INCORPORATED JUNE 12, 1942. ALL EMPLOYEES PLEASE 'NOTICE Constantly increasing inefficiency on-)the part of certain employees is seriously hampering our War Production Schedule. This is prejudicial not only to the U. S. A., in its claim upon us for maximum production , but it is also unfair to the great majority of our employees. Decisions necessary to a jnst'solution of these matters must be immedi- ately made in order to promptly correct this situation in every possible way. In order that the management may be doubly certain of the justness of any decision which may adversely affect any employee concerned , we have requested the assistance of the five employees named below to act as a committee in reviewing with us the full facts incidental to any such decision which we may arrive at . If a majority ' of such committee does not confirm the need and fairness of any proposed action which may be sub- mitted to them for consideration , we shall prefer rather to abide their own final judgment in every such instance. We desire to assure every employee that no action or decision of the management of this plant will be either colored or influenced in any way by reason of any employee's support ,of, or membership in, or non-member- ship in any Union whatsoever . We believe that indisputable assurance of an unbiased decision must be conceded by anyone adversely affected where 11 Roberts did not testify The above findings are based on the uncontradicu'd testimony of Victor Sutherland and Martin Schempf who presided at the meeting 12 Louis Johnson who was in this group was a brother of Foieman John Johnson. Although "head man" on the assembly he was not a supervisor. 18 This finding is based on the uncontradicted testimony of Sutherland Fred Rodgers admitted generally that Sutherland's testimony was coirect. He testified that be did not recall using the term "two-faced" but admitted that he knew, that Sutherland had previously been against unions and testified that he may have "wise cracked" because Sutherland had changed his mind about the Union George Rodgers did not testify. RODGERS HY,DIRu1ULIC, IN'CORPORAJPED 425 any such decision may be supported and approved by a majority of the following named committee of your fellow employees , namely : ------------------ ---------------------- JOHN WALTER ANDERSON Louis WHITE ------------------ --------------------- RONALD EARL LEWIS VICTOR SUTHERLAND ---------------------- LLOYD TEEUwEN In connection with this notice President Rodgers testified that it was necessary in the conduct of its business for the respondent to train about 75 percent of its mechanics ; that because of lack of skill of some of the employees material spoilage and machine tool breakage was a problem ; that he knew the U. M. W. was organizing in the plant and was apprehensive that if an employee was dis- missed for cause such action might be construed as resulting from union activity ; ,that in order to avoid such a situation the respondent appointed the above Com- mittee solely to "pass judgment" on the skill of certain employees. Sutherland who was a member of the Committee, testified that Superintendent Fred Rodgers told him that he wanted the Committee to back him up on passing on qualifications of employees substantially as set forth in the posted notice and that he understood the Committee would function like a Grievance Committee. Louis White, another member of the Committee, testified that the superintendent told him it was being formed on account of breakage of machinery in the plant and for the protection of the company as well as the employees. Richard Cole, a welder, testified that it was generally understood in the plant that the Committee had been appointed "to act as judge and jury on anybody's ability" where such ability was being ques- tiolied by the management and the employee's discharge considered. A few days after June 12 the Committee was called upon by the respondent to investigate the work record of an employee named Barry who had been discharged by Super- intendent Rodgers for carelessness. The Committee spent about 15 to 20 minutes on company time in the investigation of the case and sustained Rodgers' action. Although there were other discharge cases about this time" the Committee has never since been called upon to pass on the skill or qualifications of any of the employees or to act in any other manner. Shortly thereafter Sutherland, appar- ently on his own motion, removed the notice from the bulletin board because the employees were blaming the Committee for the other discharges. The Committee, however, has not been officially disbanded. Although Committee Member Suther- land and possibly one or two others had left the respondent's employ at the time of the hearing, President Rodgers' testimony is credited that the Committee could at any time be revived by substituting other employees for those who had left the respondent. On June 19 the U. M. W. held another meeting but none of the &respondent's employees attended. Two or three days later, the respondent's employee, Clarence Lewis, told Schempf that the employees did not attend the meeting because they were afraid of losing their jobs. Thereafter activities of the U. M. W. ceased in the respondent's plant. ' 2. Events during U. E. activities After the efforts of the U. M. W. to organize the employees ceased in June 1942, as described in Section I above, there was no union activity of any kind in the "About July 1 Schempf , and Keller, representing the Union , conferred with President Rodgers and respondent 's counsel Eder relative to the discharge of employee Anderson, on June 15 and of employee Flodiene , on June 29 At that time Schempf asked Rodgers whether the Committee had passed on the discharges and was told that it had not. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent's plant until January 1943,16 when efforts were made to secure mein- hers for the IT. E. as hereafter detailed. On January 5, 19=13, Floyd Johnston came to Carlson at the union office in Minneapolis and suggested that the employees of the respondent be organized . At that time Johnston signed a union applica- tion card and agreed to arrange for a meeting of the employees . The meeting was set for a day or two later at a local restaurant immediately after work and Johnston passed around word thereof to the employees at the plant. The meeting was attended by about nine employees Victor Sutherland did not go to the union meeting . When he was asked the next day by Johnston why he had not attended, Sutherland replied that the respondent was having him watched and he did not want to become involved again and be the "goat." Sutherland testi- fied that he based his conclusion that he was being watched on the fact that he had stated to Superintendent Rodgers in June 1942 , that he would not engage in further union activities 16 and that recently a fellow employee, Vern Wenner- strom, told him he had beep asked by Superintendent Rodgers if Sutherland was still trying to organize During the course of the activities on behalf of the' U. E. as herein discussed Sutherland had occasion to go to Superintendent Rodgers relative to securing a job for his brother.17 In refusing to hire his brother Rodgers told Sutherland that he was riot "doing so well himself" and , that the respondent had heard that Sutherland was still spending a good deal of his working time trying to organize . Sutherland testified that he responded to this accusation of Rodgers as follows: ". . . I told him after our other talk, that I refused to have anything more to do with trying to organize the place because I was getting tired of being the goat for the rest of them ." Superintendent Rodgers was not asked about and did not deny questioning Wennerstrom , nor the conversation with Sutherland above detailed. Wennerstrom did not testify and there was no show- ing he was not available as a witness . The statement of the superintendent to Sutherland corroborates to some extent the hearsay testimony relative to Wenner- strom. Sutherland's testimony is therefore credited in both respects. There is no evidence or contention that the respondent prohibited solicitation during work- ing hours, or that at any time Sutherland neglected his work. The January statement to Sutherland by Superintendent Rodgers considered in the light of his June 1942 remarks to the same employee had the effect of discouraging union activities on the part of Sutherland. It is found that the questioning of Wenner- strom by Superintendent Rodgers as to Sutherland 's union activities and the statement of Rodgers to Sutherland that he was engaging . in organizational activities constituted interference within the meaning of the Act. Following the union meeting Johnston secured application cards and some union booklets . During the next few days he distributed them-among the-em- ployees. A number of the application cards were signed by employees and turned in to Carlson. Arrangements had been made for a further union meeting on January 19. However, on Saturday , January 16, before quitting time, Foreman John Johnson called Johnston into the shipping room and discharged him. He has not since been reemployed . There is conflict as to just what transpired at the time of the discharge. According to Johnston the foreman told him that there -Although Reuben Carlson, business representative of the U. E called on one or two of the respondent's employees at their homes in March 1942 in an unsuccessful effort to interest them in the U E there is no evidence that the respondent had any knowledge of such attempt at the time. "'See Section 1, supra. 17 Sutherland did not fix the time of this talk definitely. He testified that it was about 6 months after the previous- June 1942 talk with the superintendent - However it-is -con- ceded there was no union activity in the plant after June 1942, and until January 1948, when the U E. came in as above set forth. RODGERS HYD'R'AULIC, INCORPORATED,- 427 were "stool pigeons" around the plant checking Johnston's time and that he had been loafing ; that Johnston insisted he had done as much work that day as anyone in the plant and the foreman agreed that such was the case; that Johnston wanted to know when he had been loafing and the foreman could not give him a definite answer ; that the foreman then stated that he was neutral as to unions but that there were "others that are against it" ; that the foreman handed Johnston his check and said "it was you or I and I am the foreman and I am staying" Accord- ing to Johnston the foreman also told him that any time he wanted a recom- mendation as a good worker he would give it to him. On the other hand Foreman Johnson testified that at the time of the discharge he reminded Johnston that he had warned him many times before about loafing but that he had not improved and would have to go ; that Johnston then accused the foreman of discharging him becaum of his union. activities but that the foreman denied the accusation and told Johnston he was being discharged because of his "workmanship." The foreman denied that he said there were "stool pigeons" checking on Johnston's time who had reported that he was loafing ; that he had told Johnston that he was neutral but others were against unions or that he had said it was either he or Johnston, and that he was the foreman and would stay. Before attempting to resolve the conflict in this testimony, it is advisable to discuss Johnston's record and conduct as an employee of the respondent. Johnston first began working for the respondent in December 1939 at 35 cents an hour as a carpenter and maintenance man. Thereafter he received periodical and steady increases in compensation as well as promotions in the type of work he was doing. By February 1941 he was welding at 60 or 65 cents an hour. His rate was in- creased to 75 cents in July 1941, to 80 cents about January 1942, to 85 cents the following July and in October or November, a few months prior to his discharge, to 90 cents an hour. Some of these were general pay increases, but the 80 and, 85 cents'were individual raises. Four or five other employees in the department, but no other welders, shared in the raise in the fall of 1942. The evidence is undisputed that all raises in pay in the respondent's plant were through recom- mendations of the foremen. From the beginning Foreman Johnson was his superior and all raises received by Johnston were through him. Johnston was regarded as particularly capable in vertical welding and also in welding track wrenches. As testified to by Foreman Johnson, he was frequently called upon to drop the particular work he was doing in order to check an inferior welding job by one of the other welders, or to start some special emergency welding job. The foreman testified that Johnston's work was "satisfactory" up to about a year before the discharge when he noticed that Johnston began to loaf and waste time and take too long at his work ; that on occasion when Johnston was called to do check welding he was slow in responding in several instances with the result that several men on the assembly line were held up temporarily in their work; ,that,on one occasion^a short.time+before his discharge a track-wrench, was. brought to Johnston and the foreman requested Johnston to weld the frame but that instead of doing so Johnston "monkeyed around" with the other man directly connected with the wrench job The foreman further testified that for a year prior to the discharge he talked to Johnston every month about his loafing, the last time being the day of his discharge, but that Johnston did not improve. Louis White, a part time welder, corroborated the foreman in part only as to the wrench incident above described. White testified that, during the absence of the foreman, George White brought a track wrench to Johnston with a request that he weld the frame but that Johnston refused to leave the job he was on at the time and said that the wrench frame could wait, although he was told by George White that the wrench welding had been ordered by the foreman; that 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a result of Johnston 's refusal to work on the wrench frame, one man's work' was held up most of the morning and until the foreman returned at noon and instructed Johnston to weld the wrench frame. George White was not a super- visor and was not acting foreman. Victor Sutherland, an inspector who had occasion to check Johnston's work, testified that Johnston was a good worker and that on several occasions he heard Foreman Johnson and Head Welder McClees praise Johnston 's work during the year; 18 that on one occasion when an employee 's work was inferior he heard Foreman Johnson say he would have Johnston take over and finish the job. Suth- erland further testified that Johnston did not loaf on the job. Richard Cole, another welder who worked with Johnston , testified that the latter's work was very good, that he frequently took over Johnston's work when the latter- was called upon to do rush work or check welding and that on one occasion when he took over some work under such circumstances the foreman told him if he could complete the job as well as the work previously done on it by Johnston there would "be no kick." Cole further testified that while Johnston was not a fast worker he was steady and he had never heard his work criticized by Foreman Johnson. Johnston categorically denied that he loafed on the jolt or that he had ever been accused of loafing or of inefficiency by his foreman or'any other supervisor. He admittedxthat on one occasion he was crfticized by Johnson for refusing to leave the work he was doing to perform some special work , at the request of another employee during the absence of the foreman . He testified that he liked to keep on the job he was doing until it was completed , and not jump from one job to another, but that he invariably responded promptly when instructed by his fore- man to do special work. He denied that Johnson had ever criticized him on any other occasion or that Johnson on the morning of January 16 had accused him of loafing, as testified to by the foreman He testified that on occasion he went to the lavatory or while working talked to other employees nearby but that it did not interfere with his work . He further testified that on January 16 he com- pleted welding a four wheel trailer frame , which was in itself almost a full day's work, and in addition , almost completed another large frame.' Johnston impressed the undersigned as an inexperienced witness doing his best to give a truthful recital. On the other hand, Johnson 's testimony was char- acterized by exaggerations and inconsistencies . It is impossible to reconcile the foreman's contention that Johnston for a year prior to his discharge was con- stantly loafing and that his workmanship was poor with the admitted facts that during this period Johnston out of the three or four welders available was called upon to do expert check welding and other special jobs and 'received three pay raises. Inthe light of these inconsistencies and the entire record the undersigned is convinced and finds that Johnston was a good workman and was so regarded by the respondent ; that on one occasion Johnston was reprimanded because lie refused to leave the task he was engaged on in order to do some emergency work until specifically instructed to do so by the foreman, although he understood he was expected to do such special or emergency jobs ; and that he did' not unduly waste his employer's time. It is further found , especially when considered in connection with the experience of employee Sutherland hereinbefore detailed, that the respondent was cognizant of the activity on behalf of the U. E. and' of Johnston's leading part therein , and that at the time of the discharge ' the talk 1s McClees did not testify and there was no showing he was not available Foreman Johnson admitted that on occasion .he praised certain work of Johnson, 1E This testimony as to the actual work produced by Johnston on January 16 was not denied. RODGERS HYDRAULIC, INCORPORATED 429 between Foreman Johnson and Johnston was substantially as testified to by the latter. At the U U. meeting scheduled for January 19, Harry Blagrove was the only employee of the respondent who attended Blagrove told the union representa- tive, Carlson , that because of the discharge of Johnston the employees were afraid to attend. Since- that time union activity has been dormant in the plant. B. Concluding findings For some time prior to the execution of the individual stock bonus agreements the respondent had been having difficulty retaining its experienced employees who were being attracted to other companies because of the higher wages paid. From the year 1940 on the respondent had been concerned about this "labor pirating." In the fall of 1941 , before any union organizing had taken place in its plant and before the organizing had really started in the neighboring Republic Creosote plant, the stock bonus plan was conceived as the best method to offset the defec- tions from the ranks of its employees . The following spring the older employees were given an opportunity to share in the bonus arrangement by signing the individual agreements. There was no compulsion but all employees eligible signed voluntarily and very promptly. The usual conditions surrounding the execution of individual agreements held violative of the Act were entirely lacking. In the oral argument Board's counsel contended that these stock bonus agreements con- stituted individual no strike agreements because of the forfeiture clause in the event the employees involved or any of them "voluntarily" left the respondent's employ, especially since the decision thereon was entirely within the respondent's control. This contention is based on a strained construction of the terms of the individual agreements. The prohibition in the agreements was against voluntarily leaving the "service" of the respondent. If the employees involved had gone on strike while the agreements were alive they would still have remained "employees" within the meaning of the Act. It cannot be assumed that the respondent, if called upon to interpret the provision , would have ignored the plain terms of the Act. In view of the fact that the respondent'was engaged in war contracts under instructions from the government to avoid interruption therein and was con- fronted with a situation wherein it was losing its experienced employees, the provision was reasonable. As found above, at the time of the execution of these agreements the U. M. W. had not started to organize the respondent's employees. It is urged, however, that the respondent knew of the activities of the Union at the adjoining plant of the Republic Creosote Company and that the agreements were prepared and signed to counteract the effect of the drive then in progress. It is difficult to believe , as testified to by President Rodgers, that he did not know of the union activities at Republic Creosote in view of the proximity of that concern to the respondent's plant in a small community. However, as noted above,- the stock bonus plan was conceived in the fall of 1941 before the Union campaign at Republic Creosote reached any proportions. As a method to offset labor pirat- ing it had some success and the agreements were cancelled and the bonus involved was paid in cash to the employees as soon as the need for additional stimulation to retain the employees ceased to exist. In view of all the circumstances it is found that the respondent by executing the individual bonus agreements with its older employees on April 10, 1942 , has not interfered with its employees in contravention of the Act 20 201n Matte? of John & Oilier Engraving Conn-penij , etc 24 N L. R B 892 , 911, cited by Board's counsel , union activity was current in the respondent 's plant at the time the contracts were executed. 43011 Although the individual stock bonus agreements herein are not found to con- stitute violation of the Act, the respondent's conduct, when union activity ap- peared in its plant, clearly shows a planned course of action to discourage such activities. Thus the respondent's statement of June 9 posted in connection with the notice of the U. Al. W. meetings was notice to the employees that the respondent would under no circumstances enter into a closed-shop agreement with the U. M. W. This was in effect an ultimatum with respect to a term or condition of employment properly the subject of collective bargaining before any request to bargain had been made.21 That the respondent was not in fact impartial towards the U. M. W. is further evidenced by its critical attitude toward unioniz- ing displayed to Sutherland on June 10, by Superintendent Fred Rodgers and his criticism to Sutherland on June 13 for joining the Union with the. resulting promise from Sutherland to forego organizational-activity. On June 12 the respondent appointed a Committee of five to represent the em- ployees in dealing with the respondent concerning grievances and labor disputes. By this act the respondent attempted to supply the employees with a bargaining agency not freely selected by them as they were entitled to under the Act, but chosen by the respondent and presumably conformable to its desires. The one time the Committee was called upon to function the, individual members thereof were paid by the respondent for their time spent on the Committee. There is no dispute as to the manner in which the Committee was created or as to how it functioned. The respondent contended in its answer and at the oral argument that the Committee was not a labor organization within the meaning of the Act. With this contention the undersigned cannot agree. The Board has held in like cases that somewhat similar committees were labor organizations within the meaning of the Act.-2 It is found that the Committee was and is a labor organi- zation within the meaning of the Act. It is further found that the respondent dominated and interfered with the creation as well as the administration of the Committee and contributed support thereto I As a result of the above course of conduct on the part of the respondent at- tendance at Union meetings ceased and the activities of the U. M. W. were effectively stymied by the end of July, 1942. When the U. E. attempted to organize the plant the following January the animosity previously displayed by the iespondent toward unionization was re- flected in the attitude of some of the employees toward that Union. Thus Suther- land, although- interested, refused to attend a union meeting because he did not want to be "mixed up again" and be the "goat." Nevertheless Sutherland was accused by Superintendent Rodgers of "still trying to organize the place" and the former deemed it advisable to tell the superintendent that since his statement to the superintendent the previous June that he would not assist in organizing he had "refused to have anything more to do" with unions.,_ Johnston, the leader- in the efforts to bring the U. E. into the plant, was discharged within 11 days after the movement started. As heretofore found, Johnston was a good workman. In the light of the anti-union bias of the respondent found herein, and Johnston's work record, the undersigned is persuaded and finds that the contention of the respondent that Johnston was discharged for loafing is not in accordance with the facts, that its contention that he was discharged for failure to promptly carry out instruc- tions was an afterthought, and that the real reason for his discharge was his Union membership and activities. The undersigned therefore finds that by the posting of the June 9, 1942 notice ; by Superintendent Rodger's statement to Sutherland on June 10 discouraging 21 Matter of Roberti Brothers, Inc., etc 8 N L R. B. 925 12 Matter of C. Nelson Manufacturing Company, etc, 15 N. L. R. B. 1050, 1072. Matter of Imperial Lighting Products Company, etc., 41 N. L R B. 1408 RODGERS HYDRAULIC, INCORPORATED 431 unionization, his criticism of Sutherland on June 12 for joining the U. M. W. and his later criticism of Sutherland for union activities ; by the creation and domina- tion of the Committee ; and by the discriminatory discharge of and refusal to reinstate Floyd Johnston, the respondent has interfered with, -restrained"and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in con- nection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing, commerce and the free flow of commerce. V. THE REMEDY Since it has'been found that the respondent has engaged in certain unfair labor practices, the -undersigned will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It having been found that the respondent discharged Floyd Johnston thereby dis- couraging membership in the U. E., it will therefore be recommended that the respondent offer him immediate reinstatement to his former or substantially equivalent position or to any other available position for which he is qualified without prejudice to his seniority and other rights and privileges, and that the respondent make him whole for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum of money equal to the amount which he normally would have earned as wages from January 16, 1943 to the date of the offer of reinstatement less his net earnings 2' during said period. It has been found that the respondent dominated and interfered with the forma- tion and administration of the Committee and contributed support to it. Since the Committee appears not to have been in existence since June 1942, it will not be necessary to recommend that the respondent disestablish that organization. However, it will be recommended that the respondent refuse and withhold recog- nition from the Committee lest it be revived.` Upon the basis of the above findings of fact and upon the entire record in the case the undersigned makes the following: CONCLUSIONS OF LAW 1. District 50, United Mine Workers of America, United Electrical Radio and Machine Workers, C. I. 0. Local 1139 and the Committee are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation .and administration of the C6niiriittee and"-contributing support thereto, the respond6nt' has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. "By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- whele than for the respondent, which would not have ben incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Hatter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Ameiiea, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other iwork-relief projects shall be considered as earnings See Republic Steel Corporatwn v. N L. R. R, 311 U. S 7. "Hatter of Imperial Lighting Products Company, etc, 41 N. L. R B. 1408, 1424. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I 3. By discriminating in regard to the hire and tenure of employment of Floyd Johnston , thereby discouraging membership in the U . E, the respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. ' 4. By interfering with, restraining and coercing its employees in, the exercise of the rights guaranteed in Section 7 of the Act the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. .5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and ( 7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that Rodgers Hydraulic , Incorporated , its officers, agents, successors, and assigns . shall : 1. Cease and desist from : - (a) In any manner dominating or interfering with the formation or adminis- tration of the Committee or the formation or administration of any other labor organization of its employees and from contributing support to the Committee or any other labor organization of its employees ; ( b) Recognizing the-Committee as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes ,, wages, rates of pay, hours of employment or other conditions of employment ; (c) Discouraging membership in the United Electrical Radio and Machine Workers, C. I. O. Local 1139 or any other labor organization of its employees by discharging or refusing to reinstate or in any other manner discriminating in regard to the hire and tenure of employment or any terms or conditions of employment of its employees ; (d) In any other manner interfering with, restraining , or coercing its em- ployees in the exercise of the right to self-organization , to form, join or assist labor organizations , to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : ( a) Refuse to recognize the Committee as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment ; (b) Offer to Floyd Johnston immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges ; (c) Make Floyd Johnston whole for any loss in earnings lie may have'suf- fered by reason of the respondent's discrimination against him , by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from the date of such discrimination to the date of the offer of reinstatement, less his net earnings during such period; (d) Post immediately on the bulletin board in its plant in Saint Louis Park, Minnesota, and maintain for a period of at least sixty ( 60) consecutive days`froni the date of posting , notices to its employees stating: ( 1) that the respondent will not engage in the conduct from which it is recounmended that it cease and desist in paragraphs 1 (a), (b), (c ) and (d) hereof: (2) that the respondent will RODGERS HYDRAULIC, INCORPORATED 433 take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of these recommendations; and (3) that the respondent's employees are free to become and remain members of United Electrical Radio and Machine Workers, C. I. O. Local 1139 and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization. (e) Notify the Regional Director for the'Eighteenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. - It is further recommended that unless on o'r before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As,provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended, effective, October, 28, 1942-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Washing- ton, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or pro- ceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days after the date of the order transferring the case to the Board. J. J. FITZPATRICK, Trial E.Tanziner. Dated May 14, 1943.