Illinois Tool Works

In the Matter of ILLINOIS TOOL WORKS, A CORPORATION and INTER- NATIONAL ASSOCIATION OF MACHINISTS, AFFILIATED WITH THE A. F. OF L. Case No. C-1318.-Decided November 07, 1939' Tool Manufacturing Industry-Interference, Restraint , and Coercion : employ- ment of labor spies ; intimidating statement by supervisory employee at union meeting-Discrimination : discharge for union activities , charges sustained- Reinstatement Ordered: of employee discharged-Back Pay: awarded for period from date of discharge to date of Intermediate Report and from date of Order to offer of reinstatement. Mr. Albert P. Wheatley and Mr. Jack G. Evans, for the Board. Gardner, Carton d Douglas, by Mr. Edwin W. Roemer, of Chicago, Ill., for the respondent. Mr. J. W. Ramsey, of Rockford, Ill., for the Union. Miss Ann Landy, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Association of Machinists, affiliated with the A. F. of L., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Thirteenth Region (Chi- cago, Illinois), issued its complaint dated April 22, 1939, against Illinois Tool Works, a corporation, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor,practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint, accompanied by notice of hearing, was duly served upon the respondent and upon the Union. Thereafter the respondent filed its answer to the complaint. The complaint alleged in substance that on or about December 23, 1938, the respondent discouraged membership in the Union by dis- charging Harrison S. Van Delinder, one of its employees, because he 17 N. L. R. B., No. 98. 1016 ILLINOIS TOOL WORKS 1017 joined and assisted the Union; that the respondent employed labor spies in its Chicago plant continuously since July 5, 1935; and that by these and other acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The answer of the respondent admitted the allegations of the com- plaint as to the nature of the respondent's business and its connection with interstate commerce, denied the allegation of unfair labor prac- tice within the meaning of Section 8 (3). of the Act; denied the employment of labor spies since January 4, 1937; failed to deny such practice from July 5, 1935, to January 4, 1937; and denied all other material allegations of the complaint. Pursuant to notice duly served on the respondent and the Union, a hearing was held in Chicago, Illinois, on May 8 and 9, 1939, before Horace G. Ruckel, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel, and the Union by its representative. Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On June 23, 1939, the Trial Examiner filed an Intermediate Re- port, copies of which were duly served upon all the parties. He found that the respondent had not engaged in the alleged unfair labor practices, and recommended that the complaint be dismissed. Thereafter the Union filed exceptions to the Intermediate Report and submitted a brief in support of its exceptions. The respondent sub- mitted a brief to the Board in support of the Intermediate Report. The Board has duly considered the exceptions to the Intermediate Report and briefs filed by the parties and finds the exceptions of the Union" meritorious in so far as they are consistent with the findings, conclusions, and order set forth below. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is an Illinois corporation, having plants in Chicago and Elgin, Illinois, and Toronto, Canada, and sales offices in Chicago, Illinois, and Detroit, Michigan. It is engaged in the design, manu- facture, sale, and distribution of cutting tools and screws. In 1938 1018 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD the respondent purchased materials worth more than $25,000 for use in its Chicago and Elgin plants and sold products manufactured at the same plants worth more than $100,000. The respondent obtained approximately 50 per cent of the raw materials from outside the State of Illinois, and shipped approximately 75 per cent of the finished products to States other than Illinois. II. THE ORGANIZATION INVOLVED International Association of Machinists is a labor organization :affiliated with the American Federation of Labor admitting em- ployees of the respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion 1. Employment of labor spies From March 21, 1934, until January 4, 1937, the respondent, a member of the National Metal Trades Association, successively em- ployed at its Chicago plant two operatives, Blair and Ekstrand, supplied by that Association. The second operative was discharged the day after the report of the United States Senate Committee investigating violations of civil ;liberties was published.' The, respondent's vice president, Frank W. England, testified that Blair and Ekstrand submitted to him two or three reports weekly, but that he destroyed the reports iminediately after reading them. According to his recollection the reports contained information about "various shop conditions," and "also if there was any radical, communistic atti- tude in our plant." When asked whether these operatives were sup- posed to report on labor activities, England testified that he did not know, since "those instructions would come from the National Metal Trades and not from me." The respondent admits by failing to deny, either in its answer or in its brief, that it employed labor spies in its Chicago plant prior to January 1937, but contends that it has not done so since that date, either in Chicago or the Elgin plant, and that therefore the allegation should be dismissed. The Trial Examiner accepted this contention and in its Intermediiate Report recommended the dismissal of this allegation. However, the discontinuance of the employment of labor spies supplied by an outside agency offers no 1 Report of the Committee on Education and Labor pursuant to S. Res . 266 (74th Con- ,gress ), A Resolution to Investigate Violations of the Right of Free Speech and Assembly and Interference with the Right of Labor to Organize and Bargain Collectively , Senate Report No. 6 , Part 4 (76th Congress, 1st Session). ILLINOIS TOOL WORKS 1019 assurance that the practice may not be carried on by the respond- ent's own employees or that the practice may not be resumed in the future.2 We find that the respondent employed operatives for the purpose of maintaining surveillance of its employees' union activi- ties, and thereby interfered with, restrained, and coerced its em- ployees in their exercise of the rights guaranteed in Section 7 of the Act. 2. Interference with the organization efforts of the Union On December 12, 1938, Joseph Ramsey, an organizer for the Union, arrived in Elgin and called on Harrison S. Van Delinder, an employee, whose subsequent discharge by the respondent is dis- cussed below. The two men arranged for an organization meeting to be held on December 15. Van Delinder, Papay,3 and a few other employees attended this meeting. Those who attended joined the Union and took application cards with the intention of soliciting other members. At the next meeting held on December 20, few employees, if any, were present in addition to the original group. At this time the group decided that Ramsey should write letters: to all the employees in the plant and invite them to attend a meeting on January 3, 1939. Van Delinder furnished a list of respondent's employees and the letters were mailed out to them on December 26. At the meeting of January 3, 1939, the same group of employees was in attendance, with the addition of the foreman of the plating department, William F. Voss. Ramsey did not send Voss a letter, but Voss had seen letters sent to the men employed in his depart- ment and had told them that he intended to attend the meeting. At the door of the meeting hall an argument ensued between Voss and Ramsey as to the former's eligibility for membership in the Union. At first Voss objected to being questioned before the meet- ing started, but then stated that his purpose in .attending the meeting was merely to find out what the Union had to offer the platers. Thereupon he was invited in. As soon as the meeting was called to order, Voss arose and stated : Now, I want you to know who I am, what my job is at the Tool Works, and if there is anything that you don't want me to hear, now is the time to say so, because if you think that I am here for a purpose, why, I wish that you would just tell me to get out. Now if there is anything said in this meeting- if you allow me in the meeting, if there is anything said in this meeting that someone oh the outside, anyone, ever asks 2 Matter of Consolidated Edison Co ., et al., 4 N. L. R. B. 71, enf'd as modified in Consoli- dated Edison Co. V. N. L. R. B., 305 U. S. 197. 3 Papay subsequently voluntarily left the respondent 's employ. 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD me what went on here, I'll tell the truth about it. Now if you don't want me to hear anything under them conditions, why, I would be glad to step out. On the following morning, General Foreman Frank Havlik asked Voss in the presence of employee Frantz whether he attended the meeting. After Voss replied in the affirmative, Havlik asked him who else had attended the meeting and Voss told him. , Havlik testified that, having seen some of the letters sent by Ramsey,4 he knew of the meeting and "was just interested to see how much attention and how much interest there was over there." Although Voss had not been invited to attend the meeting, he was admitted by Ramsey after the latter learned his identity. Under the circumstances we do not view his attendance as an unfair labor practice. However, the statement Voss made after the meet- ing had been convened, that if permitted to remain he would dis- close whatever transpired at the meeting, was clearly intimidatory. It faced the employees present with the alternative of antagonizing one of their foremen by requiring that he leave, or risking that their union activity be made known to the respondent's officials. Voss testified that he went to the meeting of his own volition and with- out the knowledge' of the officials but when questioned about his conversation with General Foreman Havlik about the meeting he stated that "it was general knowledge that I was there at the meet- ing." Whether or not the respondent authorized or even knew the action taken by Voss, the fact is that because of his position as foreman he was looked upon by the other employees as a' repre- sentative of the respondent. Voss' statement at the meeting and Havlik's action in questioning Voss concerning the meeting in the presence of Frantz were acts designed to discourage union activities. The Trial Examiner bases his recommendation of dismissal of the allegation upon an erroneous finding by him that "the uncontra- dicted testimony of Voss is that he was not interrogated by any supervisory employee of the respondent as to the meeting and did not volunteer any information." General Foreman' Havlik admit- tedly questioned Voss the morning after the meeting. We find that by the foregoing actions of Voss and Havlik, supervisory employees, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discharge of Van Delinder Harrison Van Delinder was employed by the respondent' at its Elgin plant from June 1, 1938, until his discharge on December 23, 4 Havlik apparently attached sufficient importance to the letter to bring it directly to the attention of Superintendent Ehrhard Bertbelson. ILLINOIS TOOL WORKS 1021 1938. He worked in the shipping department; his efficiency and ability are not questioned by the respondent. Van Delinder was the first to join the Union on December 13, 1938. He served as the organizer's contact with the men in the plant, solicited membership, and furnished the list of employees to be invited to the meeting of January 3. A week before his dis- charge he asked his foreman, Anthony R. Harper, to join the Union, telling Harper that he had already interested about 25 employees in the Union. The record indicates that the respondent's officials were kept well informed of organizing activities in the plant. We find that the respondent had knowledge of Van Delinder's union activities. The respondent contends that Van Delinder was discharged be- cause of his consistent violation of a safety rule which required all production employees to wear goggles. This rule was put in effect in the Elgin plant because its enforcement had led to sub- stantial reduction in the number of eye injuries in the Chicago plant. A notice was posted in the plant listing penalties for viola- tion of the various safety rules. The penalty for not wearing goggles was stated in the notice to be a 2-day to 2-week lay-off ; only "habitual safety rule violators" and those "disinterested in safety" were to be penalized by discharge. However, no one except Van Delinder was ever disciplined for the violation of a safety rule at the Elgin plant. Van Delinder had frequently been reprimanded by General Fore- man Havlik for his failure to wear goggles. In the beginning of November he and Frank Frantz,5 another employee of the shipping room, were called in to Superintendent Hanneman's office and were warned by Hanneman that if they were caught without goggles again, they would be laid off for a week. Shortly thereafter, Berth- elson succeeded Hanneman as superintendent. Berthelson testified that he, also, warned Van Delinder about a week prior to his dis- charge, after Havlik's repeated warnings were of no avail. Van De- linder denied this and Havlik testified that he knew nothing about it. It seems unlikely, if Berthelson did reprimand Van Delinder, that Havlik should not have known about it, since Berthelson as- sertedly acted upon Havlik's complaint. When Berthelson discharged Van Delinder on December 23, he asked the latter to sign a termination slip which stated that the cause of the discharge was his failure to wear goggles. Van Delinder re- fused to sign in spite of Berthelson's promise that if he would sign, he might get his job back in a few months. At the hearing Berthel- 5 Frantz has violated the rule requiring the wearing of goggles just as often as Van Delinder. He was also frequently reprimanded by Havlik. He failed to wear his goggles on the day of Van Delinder's discharge. 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son offered no explanation why Van Delinder's reemployment was made contingent upon his signing the termination slip. Although Van Delinder undoubtedly violated the rule requiring that goggles be worn, we do not believe that the respondent invoked the drastic penalty of discharge against him for that reason. Not even a short lay-off, the penalty set out in the respondent's posted rules, had theretofore been imposed for similar infractions.,, In the light of Van Delinder's conspicuous union activity in the period im- mediately preceding his discharge and the respondent's interference in the self-organization of its employees we believe that the respond- ent seized upon Van Delinder's failure to wear his goggles as a pre- text for discouraging membership in the Union by discharging him.. Upon the entire record we find that on December 23, 1938, the re- spondent discharged Harrison S. Van Delinder for the reason that he, joined and assisted the Union, thereby discriminating in regard to, his hire and tenure of employment, discouraging membership in the Union, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Van Delinder had earned about 40 cents an hour prior to his dis- charge, averaging 45 to 50 hours of work a week. Since his dis- charge he has been employed as taxi driver and has earned approxi- mately $60. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial relation to the 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 Having found that the respondent has engaged and is engaging in unfair labor practices we shall order the respondent to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the conditions which existed prior to the unfair labor practices. We have also found that the respondent discriminatorily dis- charged Harrison S. Van Delinder. We shall require the respondent to offer him immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority . 6It will be recalled that when Hanneman warned Van Delinder a one-week lay-off was the suggested penalty. Frantz, warned the same day, was not discharged , or even laid off. ILLINOIS TOOL WORKS 1023 and other rights and privileges, dismissing, if necessary to effectuate such reinstatement, any person hired since December 23, 1938, to take his place. We shall also require the respondent to make whole Van Delinder 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 that which he normally would have earned as wages from the date of his dis- charge to the date of the Intermediate Report, and from the date of this Decision to the date on which the respondent offers him rein- statement, less his net earnings during such, periods 7 Inasmuch as the Trial Examiner recommended dismissal of the complaint as to Van Delinder, the respondent will not be required to pay him back pay from June 23, 1939, the date of the Intermediate Report, to the date of this Decision." Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists 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 employ- ment of Harrison S. Van Delinder, and thereby .discouraging mem- bership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, 7 By "net earnings" is meant earnings less expenses , such as for transportation and room and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It . B. 440. Monies received for work performed upon Federal, State , county, municipal , or other work-relief projects are not considered as earnings , but as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county , municipal, or other government or governments which supplied the funds for said work -relief projects. sMatter of E. R. Haffelfinger, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. It. B. 760, and subsequent cases. 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the National Labor Relations Board hereby orders that the respond- ent, Illinois Tool Works, Inc., and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in the International Association of Machinists, or in any other labor organization of its employees by discriminating in regard to their hire or tenure of employment or any term or condition of their employment; (b) Maintaining surveillance over the activities of its employees in connection with the International Association of, Machinists or any other labor organization; (c) 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 with representatives of their own choosing, and to engage in concerted activities for the purposes 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) Offer to Harrison S. Van Delinder immediate and full rein- statement to his former or a substantially equivalent position with- out prejudice to his seniority and other rights and privileges, dis- missing, if necessary, any person hired since December 23, 1938, to take his place; (b) Make whole Harrison S. Van Delinder for any loss of pay he may have suffered 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 from December 23, 1938, the date of his ' discharge, to June 23, 1939, the date of the Intermediate Report, and from the date of this Order 'to the date of the respondent's offer of reinstatement, less his net earnings 9 during such periods; deducting, however, from the amount other- wise due to him moneys received by him during said periods for work performed upon Federal, State, county, or other work-relief' projects and pay over the amount so deducted to the appropriate. fiscal agency of the Federal, State, county, municipal, or other gov- ernments which supply the funds for said work-relief' projects ; (c) Immediately post notices in conspicuous places throughout its plant and offices and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), (c), that it will 9 See footnote 7, supra. ILLINOIS TOOL WORKS 1025 take the affirmative action set forth in Section 2 (a) of this Order, that the respondent's employees are free to become or remain mem- bers of the International Association of Machinists, and that the respondent will not discriminate against any employee because of membership or activity in that organization; (d) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith.