Stromberg-Carlson Telephone Manufacturing Co.

In the Matter of STROMBERG-CARLSON TELEPHONE MANUFACTURING COMPANY and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, LOCAL No. 509 Case No. C-612.-Decided December 01, 1939 Electrical Equipment Manufacturing Industry-Agreement: not to press charges that respondent dominated a labor organization if an election is agreed to between respondent, Union, and labor, organization alleged to be company dominated ; agreement given effect in order to effectuate the policies of the Act where acquiesced in by Regional Director-Discrimination : discharges and one demotion, for union membership and activity ; charges of, not sustained as to six employees-Settlement : stipulation providing for reinstatement of cer- tain cabinet-shop employees and abstention by respondent from ordering the manufacture of radio cabinets outside its plant to discourage membership in Union-Order: entered on stipulation except as to reinstatement provision which had been complied with , and dismissing allegations of complaint not affected by stipulation. Mr. Edward D. Flaherty and Mr. William S. Gordon, for the Board. Hubbell, Taylor, Goodwin, Nixon & Hargrave, by Mr. T. Carl Nixon and Mr. Arthur L. Stern, of Rochester, N. Y., for the respondent. Mr. J. Frank Traynor, of Rochester, N. Y., for the Association. Mr. Roman Beck, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Electrical, Radio & Machine Workers of America, Local No. 509, herein called the Union, the National Labor Relations Board, herein called the Board, by Henry J. Winters, Regional Director for the Third Region (Buffalo, New York), issued its complaint dated January 29, 1938, against Stromberg-Carlson Telephone Manufacturing Company, Rochester, New York, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the meaning of Section 8 (1), (2), 18 N. L. R. B., N. 72. 526 STROMBERG-CARLSON TELEPHONE MANUFACT'U'RING COMPANY 527 and (3) and Section 2 (6) and (7), of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint, as amended, alleged in substance that the respond- ent (1) dominated a labor organization of its employees known as the Stromberg-Carlson Employees Protective Association, herein called the Association; (2) curtailed its production of radio cabinets and discharged certain men engaged in that work, because they had joined and assisted the Union; (3) discharged six named employees and demoted a forelady to discourage membership in the Union; and (4) by the foregoing acts and in other ways, interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. Copies of the complaint, accompany- ing notice of hearing, and an amendment to the complains were duly served upon the respondent, the Union, and the Association. The respondent answered the complaint as amended, denying its material averments and alleging affirmatively, among other things, that on June 23, 1937, the Association won a consent election held under the supervision of the Regional Director among the respond- ent's production and maintenance employees to determine whether they desired the Union or the Association to represent them for the purposes of collective bargaining. The answer further alleged that as a condition precedent to the election, the Union agreed with the respondent and the Regional Director that the charges set forth in the complaint "would forever be dropped." The Association filed a petition to intervene in the proceeding on the ground that it had been certified by the Regional Director as the representative of the respondent's production and maintenance em- ployees for the purposes of collective bargaining and had entered into a contract with the respondent which might be affected by the determination in the proceeding. On February 4, 1938, the Regional Director allowed the intervention with respect to all matters directly affecting the Association. Pursuant to notice, a hearing was held at Rochester, New York, on February 10, 1938, before William Seagle, the Trial Examiner duly designated by the Board. The respondent requested an ad- journment, which was granted by the Trial Examiner. On February 15, 1938, the hearing was resumed and continued through April 7, 1938. The Board, the respondent, and the Association were repre- sented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. Numerous motions and objections to the admission of evidence were made and 1 The amendment to the complaint added certain names to the group of employees alleged to have been laid o @ following the curtailment of production In the cabinet shop. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ruled upon at the hearing. The Board has reviewed these rulings of the Trial Examiner and, except as hereinafter noted, finds that no prejudicial errors were committed. The rulings are hereby af- firmed. A stipulation' was entered into during the hearing to which the respondent, the Union, and the Board were parties, whereby the respondent agreed (1) to reemploy at least 90 workmen laid off in its cabinet department by May 2, 1938; (2) to refrain from hiring new employees in that department until all men employed therein on August 1, 1937, and thereafter laid off would be offered reemploy- ment; and (3) in the future, to manufacture all cabinets that the physical capacity of its plant, in terms of equipment, would reason- ably permit and refrain from purchasing cabinets from others "for the purpose of discriminating against members" of the Union. The stipulation further provided that the Board might require the re- spondent to comply with its terms as part of the order in this case. On May 14, 1938, the affidavit of the respondent's employment manager was submitted to the Board in which it was stated that the respondent had offered reemployment to all of the men in thel cabinet department who had been laid off since August 1937, and that by May 2, 1938, 91 of such employees had returned to work.' The Board hereby approves the stipulation. After the hearing had been concluded, the Trial Examiner filed his Intermediate Report,' dated June 24, 1938, copies of which were duly served on the respondent, the Union, and the Association, in which he stated his findings of fact and recommendations with respect to the issues not affected by the stipulation concerning the cabinet-shop employees. The Trial Examiner found that the respondent had com- mitted unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3), and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist from such un- fair labor practices and take certain affirmative action remedial of their effect. The respondent and the Association filed exceptions to the Intermediate Report and the respondent submitted briefs, which have been considered. The respondent's exceptions included an ex- ception to a ruling of the Trial Examiner which excluded its offer of proof in respect to the conference at which the agreement for the consent election, mentioned in its answer, was executed. 2 A copy of the stipulation is set forth in Appendix A. 9 Our order shall accordingly be modified to the extent that the respondent has com- plied with the stipulation. 4Acting pursuant to Article II, Section 37 (a), of National Labor Relations Board Rules and Regulations-Series 1 , as amended , the Board on May 20 , 1938, ordered the proceeding transferred to It for the purpose of reviewing the settlement . Since the Inter- mediate Report was Issued after the Board had assumed jurisdiction of the proceeding, the Board, on July 8, 1938 , acting pursuant to Article IT. Section 38 (a) and (d), of said Rules and Regulations, validated the issuance of the Intermediate Report nunc pro tune as of May 21, 1938. STROMBERG-CARLSON TELEPHONE MANUFACTURING COMPANY 529 Pursuant to notice, a hearing for the purpose of oral argument upon the exceptions was held on December 6, 1938, before the Board in Washington, D. C. The respondent and the Association were rep- resented by counsel, the Union by its general secretary, and all par- ticipated in the argument. Acting pursuant to Article II, Section 38, of its Rules and Regula- tions, the Board, on January 25, 1939, ordered that the record be re- opened for the purpose of receiving evidence concerning the respond- ent's offer of proof and authorized the Regional Director to provide for a further hearing upon due notice. On February 10, 1939, the Regional Director issued a notice of further hearing, copies of which were duly served on all the parties. Pursuant to the notice, a further hearing was held at Rochester, New York, on February 27 and.28, and on March 1, 1939, before Martin Raphael, the Trial Examiner duly designated by the Board. All the parties who appeared at the first hearing again appeared, were rep- resented by counsel, and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties at the hearing. Certain motions and objections to the admission of evi- dence were made and ruled upon during the hearing. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Acting pursuant to Article II, Section 38 (d), of its Rules and Regulations, the Board, on July 8, 1939, vacated the Intermediate Report and ordered that the Trial Examiner who presided at the second hearing issue no Intermediate Report, and that Proposed Find- ings of Fact, Proposed Conclusions of Law, and a Proposed Order should issue. The Board further ordered that the parties should have ten (10) days from the receipt of the Proposed Findings, Proposed Conclusions, and Proposed Order to file exceptions, to request oral argument before the Board in Washington, D. C., and to request per- mission to file a brief with the Board. The Union requested the Board to extend its time for the filing of exceptions to the Proposed Findings, Proposed Conclusions, and Proposed Order, and the Board extended its time for the filing of such exceptions until December 1, 1939. No exceptions, however, to the Proposed Findings, Proposed Conclusions, and Proposed Order were filed by any of the parties.5 Although the Union did not file any exceptions to the Proposed Findings of Fact, Proposed Conclu- 5 The respondent informed the Board subsequent to the issuance of the Proposed Find- ings, Proposed Conclusions, and Proposed Order that it had fully complied with the terms of the stipulation embodied in subdivision ( b) of the Proposed Order relating to the posting and mailing of notices . The Regional Director reported to the Board that such was the case . Accordingly, that subdivision of the Order has been eliminated. .530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sions of Law, and Proposed Order, it requested oral argument before the Board in Washington, D. C. The Union's request is hereby denied. Upon the entire record of the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a New York corporation having its principal place of business in Rochester, New York, where it is engaged in the manufacture of telephones, switchboards, radios, and other electrical equipment. During 1937 the respondent purchased raw and fab- ricated material exceeding in value $1,000,000, of which approximately 56 per cent was transported from other States to its plant in Rochester, New York. The sales of the respondent during that period exceeded $1,000,000 and the respondent shipped approximately 70 per cent of the products it sold to points outside the State of New York. The respondent maintains sales offices and warehousing facilities in Chi- cago, Illinois, San Francisco, California, and Kansas City, Missouri. II. THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America, Local No. 509, affiliated with the Committee for Industrial Organization, is a labor organization admitting to its membership production em- ployees of the respondent, exclusive of persons having the authority to hire and discharge. Stromberg-Carlson Employees Protective Association is an unaffil- iated labor organization admitting to membership employees of the respondent. III. THE AGREEMENT COMPROMISING THE ALLEGED UNFAIR LABOR PRACTICES A. The compromise In June 1937 the Union filed a petition with the Regional Director for an investigation and certification of representatives, in which it stated that it represented 482 of all the respondent's production and maintenance employees, numbering approximately 801 persons. Prior to filing the petition, the Union's representative, August Hein, informed the Regional Director that the Association was company dominated. Hein testified that he discussed with the Regional Director the advisability, from the standpoint of the Union, of pro- ceeding with an election rather than filing a charge ,that the Asso- ciation ' was company dominated. Hein stated that the Regional Director referred to the delay necessarily incident to a disposition STII'OMBERG-CARLSON TELEPHONE MANUFACTURING COMPANY 531 of unfair labor practice charges and told him that, in view of his statement that the Union represented a clear majority of the work- men, a consent election would be the most expeditious method of attaining the Union's ends. - Hein accepted this advice of the Regional Director and accordingly did not file charges at that time. In fact, the earliest formal charge in this proceeding was filed in October 1937, which was more than 3 months after the consent election herein considered. Following his conversation with the Regional Director, Hein discussed the matter further with certain members of the Union and informed them that the Regional Director intended to arrange a conference to see whether the respondent and the Association would agree to a consent election. On June 23, 1937, at the request of the Regional Director, a con- ference took place at the Powers Hotel in Rochester, New York, for the purpose of ascertaining whether the parties would consent to an election under his supervision to determine the preference of the respondent's employees in regard to a collective bargaining repre- sentative. The respondent, the Union, and the Association were rep- resented at the conference, and signed a written consent and agree- ment providing for an election that very afternoon under the direction of the Regional Director to determine whether a majority of the respondent's production and maintenance employees wished to be represented by the Union or by the Association for the purposes of collective bargaining. In this agreement the respondent specifically undertook to recognize the labor organization that won the election as the exclusive collective bargaining agency of the employees eligible to vote. The agreement further provided that "all parties concerned agree that there will be no after dispute affecting the election or its conduct or its results." Pursuant to the agreement the election was held and the Association obtained a majority of the votes cast. The Regional Director thereupon issued a certificate in which he certified that: Stromberg-Carlson Employees Protective Association was duly chosen by the majority of the workers of the production and maintenance departments of the Stromberg-Carlson Telephone Mfg. Co., as their representative for the purpose of collective bargaining and is entitled to represent all of the employees of the production and maintenance departments of said company in collective bargaining. The right of the Association to appear on the ballot was vigorously contested at the conference by the Union's representative, but he finally yielded on this point. The Association's representatives were reluctant at first to consent to an election since the Association and the respondent had entered into a contract which accorded exclusive 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognition to the Association as the bargaining representative of the respondent's employees and, among other things, granted a gen- eral wage increase of approximately 121/2 per cent. The contract had been executed only a few days prior- to the conference and did not expire until July 1, 1938. The representatives of the Associa- tion testified that they were induced to consent to the election and thereby to hazard the validity of the contract in order to dispose of the Union's assertion that the Association was company dominated. The evidence concerning what took place at the conference regard- ing a compromise of the Union's unfair labor practice accusations is in conflict. Several witnesses for the Union testified that the Regional Director announced that the Union withdrew its accusa- tions only temporarily. The witnesses for the respondent and the Association, however, said that the Regional Director told Hein im- mediately prior to the execution of the pre-election agreement that if the Union executed the agreement all charges would be waived; these witnesses further testified that this statement of the Regional Director was not qualified in any way and that they undersood that the election would finally dispose of all pending charges. We are thus confronted with the question whether the Regional Director qualified his announcement relating to the withdrawal of charges by stating that the withdrawal was temporary. At the hear- ing the Regional Director did not recall what had occurred at the conference, apart from the facts appearing in the records of the Board. In resolving the conflict we have been largely guided by the testimony of August Hein, the Union's representative. Hein admitted that the Regional Director called him aside during the con- ference and told him that the Uniorr would have to withdraw all charges if it wished to have the election. He testified that he there- upon conferred with other union representatives who instructed him to withdraw the charges temporarily, and that he reported this to the Regional Director. When Hein was asked on cross-examination whether he told the other conferees that his authority was limited to a temporary withdrawal of the charges, he replied, "I did not." The extract from Hein's testimony which follows strongly militates against the Union's version of what took place at the conference. Q. As a result of what you did in that meeting in the Powers Hotel on June 23, in regard to the withdrawal of the charges then existing, it was your understanding, was it not, that the slate was washed clean of labor charges of all kinds existing up to noon of June 23, 1937, by whatever you said and did at that meeting? A. I withdrew the charges on the advice of Father Boland [the Regional Director], because he had said that there could STR'OMBBRG-CARLSON TELEPHONE MANIUFAOTURJNG COMPANY 533 not be a consent election while charges were on file . . . I withdrew the charges for the purpose of having an election and having the labor dispute ended. B. Conclusions regarding the compromise We find that the Regional Director's announcement concerning the charges was not qualified by the statement that their withdrawal was temporary, and that Hein agreed to their unconditional with- drawal prior to signing the pre-election agreement. We find, fur- ther, that the respondent and the Association executed the consent agreement in reliance upon a representation implicit in the conduct of the union representative that if they did so, the Union would not press charges with respect to any alleged unfair labor practices then existing. The circumstances surrounding the execution of the pre-election agreement clearly indicated to the respondent and the Association that the Board through its agent acquiesced in this repre- sentation and undertaking of the Union. We shall refrain from considering the record so far as it relates to unfair labor practices violative of Section 8 (2) of the Act al- legedly committed by the respondent prior to June 23, 1937, because we believe that the policies of the Act will best be effectuated by observing the compromise of such charges implicit in the circum- stances attending the execution of the pre-election agreement of June 23, 1937.1 6In Matter of Godchauw Sugars, Inc. and Sugar Mill Workers' Union, Locals No. 21177 and No. 2188, affiliated with the American Federation of Labor, 12 N. L. R. B . 568, the Board said : It is true that under the Act the Board upon charges of unfair labor practices being filed and a hearing upon complaint had, may in its discretion proceed to a determination of such charges irrespective of whether a representation or under- taking, such as the above , was made or assumed . Nevertheless, effective administra- tion of the Act and furtherance of its policies require that the Board pay scrupulous regard to such a representation and undertaking of its agent, where, as here, they relate to matters of adjustment. In Matter of Shenandoah-Dives Mining Company and International Union of Mine, Mill & Smelter Workers, Local No. 26, 11 N. L. R. B. 885 , which involved an agreement, partici- pated in by an agent of the Board , for the compromise of certain alleged unfair labor practices of the employer , the Board said : Although we do not agree that the compromise agreement estops the Board from proceeding herein, we believe that effective administration of the Act requires that the Board's agents have the respect and confidence of labor organizations and employers with whom their work brings them in contact. Repudiation of agree- ments entered into and relied on in good faith necessarily impairs such respect and confidence . It may well be that the Regional Director intended the instant agreement to be subject to acceptance by the complainant , Giecek, or approval by the Board, or both. There is, however , no evidence to that effect. The respondent apparently relied and acted upon the agreement, reinstating an employee the legality of whose discharge had not been adjudicated . We believe the policies of the Act will best be effectuated by giving effect to the agreement and refraining from consideration of the alleged unfair labor practices. The complaint will be dismissed. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since, upon all the evidence, we do not think that the respondent engaged in conduct violative of Section 8 (2) of the Act after June 23, 1937, which would warrant our considering the events prior to that--date as part of a continuous course of conduct forbidden by the Act ,7 we shall dismiss the complaint in so far as it alleges that the respondent dominated and interfered with the formation and administration of the Association. IV. THE ALLEGED DISCRIMINATION IN REGARD TO HIRE AND TENURE OF EMPLOYMENT The complaint alleged that the respondent discharged six 8 em- ployees because of their union membership and activities, and de- moted a forelady to discourage membership in the Union. The re- spondent denied these charges. In determining the respondent's motive for terminating the services of these employees, it is necessary to consider the following facts stipulated by counsel for the Board and the respondent at the hearing : Commencing in the early fall of 1937 and continuing until the early winter of 1937-1938 the radio industry generally suffered a decline which was more than seasonal, and which necessitated the laying off of numerous employees engaged in the radio in- dustry. . . . The same general conditions . . . necessitated the laying off of more than 40 percent or upwards of 400 em- ployees of the Stromberg-Carlson Telephone Company engaged in the production of radios, such lay-offs beginning in August of 1937 and continuing to and throughout the early part of March 1938. Thomas B. Carter Carter, the financial secretary of the Union, began to work for the respondent in August 1936. On June 7, 1937, he was transferred from the radio assembly to the salvage department where he remained for 1 day and was then transferred to the cabinet-finishing depart- ment. He remained in the latter department until November 9, 1937, when he was laid off for lack of work. T Cf. Matter of Hope Webbing Company and Textile Workers Organizing Committee of the C. I. 0., Local 111, 14 N. L. R. B. 55, in which the Board recognized that its policy of refraining from considering events prior to a consent election held under the circum- stances there present would not preclude consideration of the respondent's entire course of conduct if, after the election, the respondent engaged in acts violative of the spirit of the election agreement. 8 At the hearing the complaint was dismissed on motion of counsel for the Board as to Jean Pantolfo, one of these employees. STROMBBRG-CARLSON TELEPHONE MANUFACTURING COMPANY 535 Carter contended that his transfer to the cabinet-finishing depart- ment was motivated by his union activity, since the men in the cabinet-finishing department were subject to the earliest seasonal lay- off. When Carter first sought employment with the respondent, he asked for work as a "touch up man," the kind of work to which he was assigned in the cabinet-finishing department. Carter readily admitted that his work was more agreeable in the finishing depart- ment than it was in the assembly department and that he earned as much in that department as he had previously earned. The re- spondent's superintendent testified that Carter was not retransferred to the assembly department because he was doing well and earning more money in the new department. We do not think that the evidence is sufficient to warrant a finding that the respondent discriminated against Carter because of his union activity. F. Arthur Little field Littlefield was a member of a union committee that protested against certain conduct of members of the Association. He was em- ployed by the respondent in July 1937 as an aligner of radios, and was laid off on January 7, 1938. When Littlefield inquired of his foreman how long the lay-off would continue, the latter replied, "Well, don't worry Art, I will see that you get back just as soon as possible." His lay-off slip stated that he had been laid off for lack of work only "until notified." On September 22, 1937, when work in the aligning room became slack, Littlefield was given assembly work that he regarded as less desirable, while other employees having less experience than he were kept in the aligning room. Though Littlefield did not deny that it was necessary for business reasons to reduce the aligning force he felt that he should have been retained in preference to these other employees. The falling off of work in the aligning room progressed so rapidly after Littlefield's transfer that at the time of the hearing only a supervisor and one employee remained at that work. It is significant that the employee so retained is a member of the Union. Pilling, Littlefield's foreman, testified that he transferred Little- field before the other aligners because Littlefield was the least efficient aligner. Pilling stated that he based his opinion of Littlefield's work upon the relatively higher number of radios aligned by Littlefield that had been rejected on further test. Even if Pilling's opinion of Littlefield's work were not well founded, we do not think that his transfer from the aligning room was discriminatory; nor do we think that his subsequent lay-off in January 1938 was due to his union 283029-41-vol. 18--35 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activity. Seventeen other men in his department were laid off the same day that he was laid off. Among them were two aligners whose longer retention in the aligning room Littlefield considered dis- criminatory. Evidence was submitted by the respondent to explain why certain men having less seniority than Littlefield were retained after his lay-off. The record shows, however, that the respondent did not follow a seniority policy to any great extent in determining lay-offs, and that only when other factors were equal did it give departmental seniority any weight. In view of the respondent's failure to observe, seniority as the controlling factor in lay-offs, its disregard in a particular case is not sufficient in itself to establish discrimination. But even if seniority had been given greater weight, we do not think that there is any reason to doubt the respondent's explanation for having retained the other employees in preference to Littlefield. Of the three men retained in Littlefield's department who had less seniority than he, one was a union member who had previously been reinstated at the request of the Regional Director, and the other two had received special training for the work in which they were engaged. We find that Littlefield's transfer and subsequent lay-off were not due to his union activity. Albertina Culhane Culhane began to work for the respondent in June 1936 and was laid off on October 12, 1937. At the time of her lay-off there was no work available of the kind in which she and eight other women had been employed. The eight others were also laid off the same day. The exhaustion of their work was due to the general falling off of business, previously noted, that ultimately necessitated the lay-off of more than 400 employees. The effect of the general business decline in Culhane's department is graphically revealed by an analysis of the dismissal dates of the 62 9 women in her department who had the same seniority as she, or less. Twenty-four of these women were .laid off prior to her dismissal, eight others on the same day, fourteen others within 3 days thereafter, and the rest by the end of November 1937. After she was notified of her lay-off, Culhane told the respondent's superintendent that she greatly needed the work, and that others having less seniority were being retained. The superintendent in- formed her that since the amount of business in the radio department was diminishing, he did not wish to teach her a new operation. Nevertheless, he agreed to consider her case further. That after- "One woman resigned and another was transferred to general office work. STR'OMBERG-CARLSON TELEPHONE MANUFACTURING COMPANY 537 noon the foreman of the radio department instructed her to report for work on the following Monday and , according to Culhane, remarked that "he didn't know at the time that I needed the work so badly-I believe he said he would find some temporary work for me to do." She worked thereafter in another department for a period of 8 working days and was again laid off. Although Culhane was a member of the Union's negotiating com- mittee, we find that the respondent did not discriminate against her because of her union membership or activity. Howard Guess Guess, a member of the Union's bylaws committee, was first employed by the respondent in March 1934. On October 27, 1937, he was laid off, allegedly for lack of work. Although Guess admitted that others had previously been laid off because work was slack in his department, he contended that Abram Zonneyville should have been laid off before him, since he had greater departmental seniority than Zonneyville. The respondent contended that it kept Zonney- ville in preference to Guess because Zonneyville was the better work- man and could perform a certain operation that required greater strength than Guess possessed. The record shows that Zonneyville, who was 46 years of age at the time of the hearing, had first applied for work with the respondent when he was 14 years of age, and that he was a boyhood friend of Micklei, the foreman of the department. We think that these circumstances explain Zonneyville's retention in preference to Guess. Though Guess was a member of a union committee, there is no showing that his union affiliation motivated his lay-off. Nick Van de Sande Van de Sande began to work for the respondent on October 23, 19351 in the coil-winding department. On November 9, 1936, he was trans- ferred to the maintenance department, where he remained until November 12, 1937, the date of his lay-off. At the hearing, the respondent admitted that it did not intend to rehire him, since it contended that his lay-off was due to incompetency, neglect of duty, and his deliberate infraction of the rule against smoking in the plant. Van de Sande was a member of the Union's organizing committee and attributed his dismissal to his union activity. In August 1937, while Roy F. Scranton, a member of the Union, and Van de Sande were removing a panel of electrical equipment having a 440-volt current, a short circuit occurred. Scranton there- upon asked Van de Sande not to touch the equipment until he called their foreman. When Scranton returned with the foreman, they 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD saw Van de Sande attempting to remove the fuses with a pair of steel pliers. The foreman testified that there was no necessity for the immediate removal of the fuses , and that Van de Sande incurred the danger of serious injury to himself and of damage to the machinery when he used steel instead of fibre pliers that were available . Though Van de Sande denied responsibility for the short circuit, he did not deny that he had used steel pliers in removing the fuses. In October 1937, Van de Sande carelessly broke an electric -light reflector, and at the hearing admitted his responsibility for its breakage. In addition to these incidents, which were testified to by Scranton, a fellow union member, the record shows that Van de Sande frequently left his work to visit other parts of the plant. He also admitted that he had smoked in the boiler room in violation of the respondent's rule. Under the circumstances, we do not think that the evidence estab- lishes that Van de Sande was laid off for union activity. Elsie Jones On November 15, 1937, Elsie Jones, a forelady in the coil-winding department, was demoted from her supervisory position and assigned to production work. The respondent contends that her demotion was due to the necessity of reducing the cost of supervision in her department, resulting from the great decline in business. While Jones did not question the existence of such necessity , she complained of the retention of Walter Knobles as a supervisor after her demo- tion, since Knobles had a shorter service record in her department. Though Jones was never a member of the Union and had never engaged in union activity , she was a friend of the union president. The respondent's witnesses testified that Knobles was retained in preference to Jones for the reason that the work of a foreman was largely mechanical and that a man was needed as an understudy to Micklei , the foreman of the department . At the time of Jones' demotion, Knobles was the only male supervisor in that department other than Micklei. We do not think that the respondent was in- fluenced in demoting Jones by her friendship for the union president. We find that by terminating the services of Carter , Littlefield, Culhane, Guess, and Van de Sande, and by demoting Jones, the respondent did not discriminate in regard to their hire and tenure of employment or in regard to the terms or conditions of their employment to discourage membership in a labor organization. The allegations of the complaint with respect to these persons will there- fore be dismissed. STROMRERG-CARLSON TELEPHONE MANUFACTURING COMPANY 539 On the basis of the foregoing findings of fact and upon the entire record in the case, including the stipulation above mentioned, the Board makes the following : CONCLusIONs OF LAW 1. The operation of the business of the respondent constitutes a continuous flow of trade, traffic, and commerce among the several States, within the meaning of Section 2 (6) of the Act. 2. United Electrical, Radio & Machine Workers of America, Local No. 509, and Stromberg-Carlson Employees Protective Association are labor organizations, within the meaning of Section 2 (5) of the Act. 3. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (2) of the Act. 4. By terminating the employment of Thomas B. Carter, Arthur Littlefield, Albertina Culhane, Howard Guess, and Nick Van de Sande, and by demoting Elsie Jones, the respondent has not engaged in unfair labor practices, within the meaning of Section 8 (1) and (3) of the Act. 5. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (1) of the Act. ORDER On the basis of the above findings of fact, conclusions of law, and stipulation, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Stromberg-Carlson Telephone Manufacturing Company, Rochester, New York, and its officers, agents, successors, and assigns shall take the following affirmative action which the Board finds will effectuate the policies of the Act : Produce in its plant all cabinets which its physical capacity in terms of equipment reasonably permits. In determining capacity there shall be taken into consideration, however, the demand for any particular model or models at a given time, so as to make possible the meeting of current demands. The respondent shall not in the future place orders for radio cabinets outside its plant for the purpose of discriminating against members of United Electrical, Radio & Machine Workers of America, Local No. 509. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (1) and (2) of the Act, and that the respondent, by terminating the employment of Thomas B. Carter, Arthur Little- field, Albertina Culhane, Howard Guess, and Nick Van de Sande, 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and by demoting Elsie Jones, has engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed. APPENDIX A 1. It is stipulated and agreed by and between the Respondent, the Stromberg-Carlson Telephone Manufacturing Company, by its Coun- sel, and the United Electrical Radio & Machine Workers of America, Local 509, by its representative, and the National Labor Relations Board, by its Counsel, that, subject to the approval of the National Labor Relations Board, the Board may enter as part of its order in this case an order for the following affirmative action in connection with the allegations of the complaint and amended complaint charg- ing that the Respondent discriminated with respect to the hire and tenure of employment of those of its employees named in Group B of the complaint and amended complaint and whose names appear in the appendix attached to this stipulation and made a part hereof : The Respondent, Stromberg-Carlson Telephone Manufacturing Company, shall take the following affirmative action which the Board finds will effectuate the policies of the Act : 1. Offer re-employment to all former employees of Departments 14, 16 and 18 who were employed by it in August, 1937, as soon as work is available. Re-employment shall be offered in the following order as far as practicable : Those who were laid off last in each de- partment shall be called back first in that department until all those who have been laid off have been offered re-employment. 2. Re-employ, on or before May 2nd, 1938, at least ninety of the workers from Departments 14, 16 and 18 who were employed by it in August, 1937, and who have since been laid off ; of the ninety so re-employed as many as possible shall be employed in Department 14, 16 and 18. Further, Respondent shall make every effort to re-employ these workers on or before April 18, 1938. Rehiring shall commence as soon as practicable. 3. Hire new employees in any of Departments 14, 16 and 18 to do a job formerly done by any former employees of those departments employed by the company in August, 1937, only after all such former employees have been offered re-employment in such departments. 4. Produce in its plant all cabinets which its physical capacity in terms of equipment reasonably permits. In determining capacity there shall be taken into consideration, however, the demand for any particular model or models at a given time, so as to make possible the meeting of current demands. The Respondents shall not in the future place orders for radio cabinets outside its plant for the purpose of STR'OMBERG-CARLSON TELEPHONE MANUFACT'UILING COMPANY 541 discriminating against members of Local 509, United Electrical Radio R Machine Workers of America. 5. Immediately post notices on the bulletin boards, or in conspicu- ous places, in Departments 14, 16 and 18, and on the main bulletin board in the plant, and mail one copy thereof to each employee who was working in departments 14, 16 and 18 in August, 1937; such notices shall incorporate the provisions hereinabove set forth. Said notices shall remain posted for at least sixty consecutive days from the date of posting. II. It is further stipulated and agreed by and between the respec- tive parties that in the event an order of the Board is entered and it becomes necessary, in order to enforce the terms and provisions of so much of said order as is entered upon this stipulation, to file a petition for enforcement of the same in the appropriate circuit court of the United States Circuit Court of Appeals by the National Labor Rela- tions Board, the Respondent consents and agrees that a decree of said Court be entered upon so much of said order as is entered by the Board upon this stipulation. III. It is further stipulated and agreed by and between the respec- tive parties that the Respondent will, immediately after the date hereof, commence compliance in accordance with the terms of the stipulated order as aforesaid. NATIONAL LABOR RELATIONS BOARD, By (sd.) WM. S. GORDON. UNITED ELECTRICAL RADIO & MACHINE WORKERS OF AMERICA, LOCAL 509, By (sd.) Louis ToRRE. STROMBERG-CARLSON TELEPHONE MANU- FACTURING COMPANY, By (sd.) T. CARL NIXON. Approved by WILLIAM SEAGLE (sd.), Trial Examiner. Dated March 22, 1938. NOTE.-Annexed to the stipulation was an appendix containing the names of 87 persons. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.