National Cash Register Co.

III the Matter of NATIONAL CASH REGISTER COMPANY and' ^ UNITED_ EIx,c,rRiCAL, RADIO & MACHINE WORKERS OF AMERICA, LOCAL 807 Case No. C-14115.-Decided June 26, 19/.0 Cash Register and Adding Machine Manntacturing Industry-Settlement in Part: stipulation providing for compliance with the Act, including reinstatement with back pay to one employee and dismissal of the complaint as, to two oilier alleged discriminatorily discharged employees-Order: entered on stipdation- Consent Decree: assent to filing of consent decree in terms of the Order in (Ale Uniled,States Circuit Court of Appeals for the Sixth Circuit stipulated-Dis- crim.ina.tion.: charges of, not sustained as to three persons whose cases were not settled by the stipulation-Complaint: dismissed as to 5 alleged discrimi- uatory discharges. Mr. W. J. Perrieelli and Mr. TVeldon P. Monson, for the Board. Maxwell cf Ramsey, by Mr. Joseph Graydon and Mr. Joseph. Lack.- ner, of Cincinnati, Ohio, and Smith, Schnacke & Compton, by Mr. F. D. Schnacke and Mr. Boyd M. Compton, of Dayton, Ohio, for the respondent. Mr. Irwin Carl Delscamp, of Dayton, Ohio, for the Independent. Mr._ Ernest DeMaio, of Dayton, Ohio, for the United. Mr. Roscoe L. Barrow, of counsel to the Board. DECISION AND ORDER .STATEMENT OF THE CASE Upon charges and . amended charges duly. filed by United. Elec- trical, Radio & Machine Workers of America, Local 807, herein called the United, .the National Labor Relations Board, herein called the Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio) issued its complaint dated April 7, 1939, against National Cash Register Company, Dayton, Ohio, herein called the respondent, alleg- ing that the respondent had engaged in and was engaging in unfair" labor practices affecting commerce, within the meaning of Section' -8 (f) ','(2), and (3) and Seetion.2 (6) and (7) 'of the National. Labor. Relation's Act, 49 Stat. 449, herein called the Act. Copies of the com- plaint, accompanied by notice of hearing, were duly served upon the 24 N. 'L: R. B., No. 108. .995 996 DECISIONS OF NATIONAL.LABOR RELATIONS BOARD respondent, the United, and N. C. R. Employees' Independent Union, herein called the Independent.' The complaint alleged in substance, (1) that the respondent inter- fered with, restrained, and coerced its employees -in the exercise of the rights guaranteed in Section 7 of the Act; (2) that the respondent at all times from January 15, 1920, to the date of the complaint, domi- nated and interfered with the administration of the Independent and contributed financial and other support thereto; and (3) that the respondent discharged six employees because of their union member- ship and activities, and thereafter reinstated three of them, but re- fused to grant them back pay for the work lost while they were unemployed by reason of the discriminatory discharges. The re- spondent filed its answer dated April 21, 1939, denying that it had engaged in the alleged unfair labor practices. Pursuant to notice duly served on all parties ,2 the hearing opened at Dayton, Ohio, on April 24, 1939, before Martin Raphael, the Trial Examiner duly designated by the Board. On May 18, 1939, during the course of the hearing, the United filed a fourth amended charge, and on May 22, 1939, counsel for the Board moved to amend the complaint. The motion was granted. The amendment to the complaint alleged' in substance that the respondent on or about April 29, 1939, entered into _a contract with the Independent governing terms and conditions of employment of its employees. On June 2, 1939, the respondent filed its amended answer in which it admitted that it had executed a contract with the Independent but denied that its action constituted an unfair labor practice. On July 17, 1939, the Independent filed a motion to intervene in the proceeding and at the same time filed an answer denying that the. respondent had dominated or interfered with its formation and ad- ministration,,and denying that the respondent had contributed finan- cial or other support to it. On July 21, 1939, the motion to intervene 1 On Oe ; ober 17 , 1938, the Independent filed a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the ' respondent, and requesting an Investigation and certification pursuant to Section 9 (c) of the Act. On March 28. 1939 , the Board directed the Regional Director to conduct an investigation and to provide . for an appropriate hearing and further ordered that the proceeding arising out of the petition be consolidated with the proceeding arising out of the complaint . On April 29. 1939, the respondent and the Independent entered into a contract governing terms and conditions of employment of its employees . Thereafter , the Independent moved that it be granted permission to withdraw its petition . On June 10, 1939, the Board , after due' notice, ordered that the proceedings be severed , granted the Independent's request to with- draw its petition , and ordered the proceeding arising out of the petition closed. The Inde- pendent , on July 17 , 19 39. filed its motion to intervene in the proceeding arising out of the complaint . On'July 21 , 1939, the motion was granted. ? During'the hearing a number of craft unions of the American Federation of Labor, which had obtained contracts with the respondent,, secured. members among the respondent's employees, ' or were otherwise interested in the proceedings , were permitted to intervene. They are not mentioned here, however , since their interest was in the proceeding arising out of the petition, and that case has been closed. .. . NATIONAL CASH REGISTER COMPANY 997- was granted "to the extent that its (the Independent's)' interests, in the proceeding may appear." On July 25, 1939, the hearing'was adjourned for an extended period. Thereafter, the respondent, the Independent, and counsel for the Board entered into a stipulation,4 subject to the approval of the Board, disposing. of substantially all of the allegations of the com- plaint, with the exception of - the.-allegations, pertaining to the dis- charges of Walter Beare, James Coatney, and Jacob Flick. On November 10, 1939, the Board approved the stipulation and ordered the proceeding transferred to and continued before the Board. On November 20; 1939, the hearing was continued and concluded at Dayton, Ohio, before Earl S. Bellman, the Trial Examiner duly designated by the Board, for the purpose of receiving rebuttal testi- mony relative to the matters not disposed of by the stipulation - At. the hearing, the Board, the respondent, and the Independent. were represented by counsel and the United by a representative. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. During the hearing counsel for the Board moved to, copform the pleadings to' the proof. The motion was,'allowed. Dur- ing the course of the hearing, the Trial Examiners made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiners and finds that no prejudicial error was committed. The rulings are hereby affirmed. On December 15, 1939, pursuant to Article II, Section 37 (c),,of' National Labor Relations Board Rules and Regulations-Series 2,. the Board ordered that Proposed Findings of Fact, Proposed Con- clusions of Law, and Proposed Order should be issued ; that no. Intermediate Report should be issued by the, Trial Examiner; and,, .pursuant to Article II, Section 37, of said Rules and Regulations, that the parties should have the, right, within twenty (20) days, from the receipt of said Proposed Findings of Fact, Proposed Con- clusions of Law, and Proposed Order, to . file exceptions, to request. oral argument before the Board, and to request permission to file a brief with the Board. Article II, Section 37, of -National Labor-' Relations Rules and Regulations-Series 2, as amended, of- 3 While the Trial Examiner had not acted upon a formal motion to intervene in the pro- ceeding, no motion having been filed , actually the Independent had participated in the pro- ceeding from the beginning of the hearing. * The stipulation was not signed by any representative of the United. ' Prior to the adjournment on July 25. 1939 . certain motions for subpenas had been filed, , and the Trial Examiner had not passed upon the motions. The evidence which the motions. sought to elicit is irrelevant in view of the stipulation which has been approved ; therefore, when the Bearing was resumed these motions were not passed upon. ' Cerl ain other motions, for subpenas relative to issues in the proceeding arising out of the petition were not passed noon after the closing of that case. 283035-42-vol. 24-64 998 DECISIONS-OF NATIONAL ,LABOR RELATIONS BOARD fective March 13,1940, provides that any party may file a brief with the Board within thirty (30) days after the date of proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order. In view of this all parties to this proceeding were permitted to file a brief within thirty (30) days after the date of our Proposed Find- - ings of Fact, Proposed Conclusions of Law , and Proposed Order. Pursuant to a request by the United for an extension of. time within which to file exceptions to the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order, the Board on May 28, 1940, granted to all parties until June 10, 1940, for the filing of such exceptions . No exceptions, however, were filed by any of the parties . The Board received no request for oral argu- ment, and no hearing for the purposes of oral argument was held. On June 16, 1940, the United filed a brief -with the Board. The Board has considered the arguments set forth in the United 's brief and finds no merit in them. The stipulation hereinabove referred to reads as follows : IT IS HEREBY STIPULATED AND AGREED by and between The Na- tional Cash Register Company, respondent herein ; United Elec- trical Radio and Machine Workers of America , Local 807, affiliated with C. I. 0., party herein ; N. C. R. Employees' In- dependent ; Union, intervenor herein; and Weldon P. Monson, attorney for the National Labor Relations Board, that : I. Upon charges duly filed by the United Electrical Radio and Machine Workers of America, Local 807, affiliated with the C..I. 0., the National Labor Relations Board, by the Regional Director for the Ninth Region, acting pursuant to authority granted in Section 10 (b) of the National Labor Relations Act,- 49 -Stat. 449, and its Rules and Regulations , Series I as amended, Article IV, Section 1, issued its Complaint on the seventh day of April, 1939, and filed its Amended Complaint on May (sic) 1939, . against The National Cash Register Company, respondent herein. II. Respondent, The National Cash Register Company, is a corporation organized under and existing by virtue of the laws of the State of Maryland , and has its principal office and place of business in Dayton , Ohio, and is now. and has continuously, for a long period of time, been engaged at its place 'of business in Dayton, Ohio, as aforesaid , in the manufacture, sale and dis- tribution of cash registers and accounting machines. III. Respondent,' The National Cash Register Company, in the course and conduct of its business at its Dayton plant , causes, and has contir uously caused, raw and other materials used in, the manufacture, sale and distribution of its cash registers and NATIONAL CASH. REGISTER COMPANY 999 accounting machines to be purchased and transported into and through the States of the United States, other than the State of Ohio, and causes , and has continuously caused, the cash registers and accounting machines manufactured. by it in its Dayton plant, in the: State of Ohio, to be sold and transported in interstate com- merce from-its said Dayton plant, to, into and through, States of the United-States, other than the State of Ohio; and as will more fully appear in Board Exhibit 3 introduced into the hearing commenced in the above -entitled matter. The respondent, The National Cash Register Company, is en- gaged in inter-state commerce within the meaning of the National Labor Relations Act. IV. The United Electrical Radio and Machine Workers of America, Local 807, affiliated with the Congress of Industrial Organizations, is 'a. labor organization within the meaning of Section 2 , Sub-section 5, of said Act ; The N. C. R. Employees' Independent Union is a labor organization within the meaning of Section 2, Sub-section 5, of said Act. V. This Stipulation, together with the Charges, which in- cludes the Fourth Amended Charge, Complaint, Amended Com- plaint, Notices of Hearing, and Rules and Regulations of the National Labor Relations Board, may be filed with the Chief Trial. Examiner of the National Labor Relations Board in Wash-' ington, D. C., and considered as in evidence in this matter. VI. The taking of further testimony or evidence before the Trial Examiner in this matter and as concerning the Charges, including the Fourth Amended Charge , and allegations of un- fair labor practices in the Complaint and Amended Complaint is her expressly waived. by the respondent, The National Cash Register ' Company. The respondent, The National Cash Register Company, particularly waives the taking of further testimony or evidence concerning the allegations in the Com- plaint and the Amended Complaint concerning the allegations of unfair labor practices , within the meaning -of Section 8, Sub- division 3, of said Act, (provided the respondent, reserves to itself the right to offer further rebuttal testimony or. evidence in the event the Board produces further evidence or testimony concerning unfair labor practices within the meaning of Section 8. Sub-division 3, of said Act). VII. Upon this Stipulation, if approved by the National La- bor Relations Board, and upon that portion of the Record not relating to allegation's of unfair labor practices under Section 8, Sub-division 3, pertaining to Jacob C, Flick, James Coathey and Walter Beare, an Order may forthwith be entered by said 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board containing the following .ternis, 'which Order may be em- bodied by said Board in the form of a Consent Decree (consent thereto being hereby expressly given) and filed with the United States Circuit Court of Appeals for the Sixth Circuit without further notice for application for 'enforcement thereof: The respondent, The National Cash Register Company, and its officers , agents , successors and assigns , shall : 1. CEASE and DESIST from : (a) In any manner interfering. with, restraining or coercing its employees in the exercise of their rights to self-organization, to form, join or aid labor organiza-. tions, to bargain collectively through representatives of their own choosing and to engage in concerted activi-' ties, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in section 7 of the National Labor Relations Act. (b) Discouraging membership in United Electrical Radio and Machine Workers of America, Local 807, affiliated with Congress of Industrial Organizations, N. C. R. Employees' Independent Union, or any other labor organization of its employees, by discriminating. in re- gard to hire or -tenure of employment, or any term or. condition of employment.. (c) In any manner dominating or interfering with the' administration of the N. C. R. Employees' Independent Union, or 'its successor, or successors , and with the for- mation or administration of any other labor organiza- tion of its employees, and from contributing aid or sup- port to said organization or to any other organization of its employees., 2. Take the following affirmative action which the Board finds will effectuate the policies and purposes of the National Labor Relations Act : (a) Offer to Fred Clauss, immediately upon the ap- proval of this Stipulation , full and unconditional rein- statement to his former position of employment with- out prejudice to his seniority or other rights. and pridi- leges previously enjoyed by him. "Said offer shall be made by the respondent by registered mail, return re- ceipt requested, and acceptance shall be made within a period of ten (10) days from the receipt thereof, other- wise said, offer shall be deemed rejected. NATIONAL CASH REGISTER COMPANY 1001 (b) Make whole Fred Clauss for any loss of earn- ings he may have suffered by reason of his discharge, by payment to him of a sum equal to that which he would normally have earned during the period from the date of his discharge to the date of the offer of rein-. statement, less his net, earnings during said period. (c) Post and keep visible in prominent places on each floor of respondent's Dayton plant for a period of sixty (60) consecutive days, to commence promptly upon receiving notification of approval, of this Stipula- tion by the Board, notices stating that respondent will cease and desist as aforesaid. (d) Notify the Regional Director for the Ninth Re- gion, in writing, of. the steps respondent has taken to comply with the above Order within ten (10) days from the date of notification of approval of this Stipulation by the Board. It is-ordered that the Complaint and Amended Com- plaint'be, and they hereby are, dismissed as to allegations with respect to unfair labor practices under Section 8, Sub-section 3, concerning Walter Hofaker. and George Rudasill. VIII. It is further stipulated and agreed by and between the parties hereto that the record pertaining to allegations in the Complaint and Amended Complaint of unfair labor practices under Section 8, Sub-section 3, of the Act with regard to the cases of James Coatney, Jacob C. Flick and Walter Beare remain open, until further ordered closed by the Board, for the making of findings of fact and conclusions by said Board, and that the record be closed as to the other and further allegations in the 'Complaint and Amended Complaint on the remaining issues thereof. Nothing herein contained shall be construed in any manner as a waiver by respondent of its right to the taking of an appeal from the Board's findings of fact and conclusions and Order pertaining only to the cases of James Coatney, Jacob CC. Flick and Walter Beare, such. right being guaranteed by said Act. It is expressly stipulated and understood, however, that, in event of an appeal, only such portions of the record, evidence and transcript of testimony as relate to the cases of 'Jacob C. Flick, James Coatney and Walter Beare and such other portions ,of the evidence heretofore taken as the parties severally consider proper and necessary for decision of said issues shall be in- corporated into the record upon such appeal, . or such other portion's of the record 'as the parties hereto may agree.. 1002 DECISION'S OF NATIONAL LABOR RELATIONS BOARD IX. Provided, however, that nothing in this Stipulation con- tained shall be taken as an admission by respondent of the com- mission of any unfair labor practice as alleged in the Complaint or Amended Complaint in this matter; and, further, that no acts of respondent prior to the date of the approval of this Stipu- lation with respect to the N. C. R. Employees' Independent Union, or any other labor organization, shall be used as the basis for any further complaint or order that respondent has domi- nated or interfered with the formation or administration of any labor organization , or has contributed financial or other support to it; and that no acts Of respondent prior to the date of the approval hereof by the Board with respect to the N. C. R. Em p1oyees' Independent Union shall be used as the basis for any further complaint or charge that the N . C. R. Employees' In- dependent Union is a labor organization established , maintained or assisted by • any action defined in said Act as an unfair labor practice. X: The entire agreement is contained within the terms of this Stipulation , and there is no verbal agreement of any kind which varies,"alters or adds to the Stipulation. XI. All of the foregoing shall be subject to the approval of the National Labor Relations Board, and that it shall become effective and binding upon such approval. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT National Cash Register Company is a Maryland , corporation having its principal office and place of business in Dayton , Ohio. It is engaged in the manufacture , sale, and distribution of cash registers. and accounting machines. It operates manufacturing plants in Day- ton, Ohio; Ontario, Canada ; Berlin, Germany ; and Tokyo , Japan. During 1938 the respondent manufactured at the Dayton plant prodiicts which grossed more than $38,000,000., In excess of 96.5 percent of these goods were shipped to States other than Ohio or to foreign countries. The principal raw materials used in the respond- tint's operations are lumber , steel, paper , glass, and brass. During 1938 approximately 75. per cent of the raw materials used at the Day- ton. plant were shipped to the plant from points outside the State' of Ohio. The .respondent has stipulated . that,.it is engaged in interstate commerce within the meaning of the Act. NATIONAL CASH REGISTER COMPANY 1003 We find that the respondent is engaged in trade, traffic, and com- merce among the -several States and between the United States and foreign countries. IT. THE LABOR ORGANIZATIONS United. Electrical, Radio & Machine, Workers of America, Local 807, is a labor organization affiliated with the Congress of Industrial Organizations. N. C. R. Employees' Independent Union is a labor organization admitting to membership all non-supervisory employees in the re- spondent's Dayton plant, excluding compositors, pressmen,. photo- engravers, electrotypers, and stereotypers.6 III. THE ALLEGED UNFAIR LABOR PRACTICES NOT DISPOSED OF IN THE STIPULATION - The allegations in the complaint, that the respondent discharged and refused to reinstate Walter Beare and James Coatney, and dis- charged and reinstated Jacob Flick. without back' pay, because of their union membership and activities; were not disposed of by the stipulation. The respondent in its answer denied these allegations of the complaint. After approval of the stipulation, further evi- dence at to these three cases of alleged discrimination was taken at the hearing on November 20, 1939. Walter Beare was first employed by the respondent on January 26, 1925, and on July. 9, 1928, he voluntarily left the respondent's employ. During his first period of employment Beare operated the burr lathe, speed lathe, and drill' press. He reentered the respond- ent's employ on December 20, 1935. Upon his return to the plant he was assigned to the, 1 and 2 spindle drill press section. On April 20, 1936, Beare was transferred to the 4 and 6 spindle drill press section where he was employed at the time of his lay-off -on December 3, 1937. Beare began attending meetings of the United in January 1935 and, joined the United on April 6, 1937. He was an, active member, having distributed handbills and having served as a trustee of the" United and as a member of its negotiating committee, in which capacity he had conferred with the management of the respondent on several occasions. Subsequent to: his lay-off he was elected presi- dent of the United. Harry N. Lowrey, foreman of the department in which Beare worked, admitted that he knew 4 or 5 months prior to Beare's lay-off that Beare was- a member, of the United. a The employees in the excluded categories include. .members .'of several craft ^ unions affiliated with the American Federation of Labor. 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From September 1, 1937, to December 3, 1937, 653 employees were laid off by the respondent in the entire plant. On December 3, 1937, seven employees were laid off in the 4 and 6 spindle section and eight others were transferred therefrom to the burr section. Foreman Lowrey told Beare that business conditions necessitated a reduction in force and that he was among those who had to be laid off. Beare then requested a transfer to the 1 and 2 spindle section. Lowrey .told him that there was not enough work in that section to require another employee and sent Beare to see Val Gleim, the employment manager. Beare reported to Gleim and renewed his request. Gleim telephoned Lowrey concerning the possibility of a transfer. According to Gleim, Lowrey said it would be necessary to lay off men in the 1 and 2 spindle section.7 Beare then said that.unless he received the transfer the United would file charges of unfair labor practices against the re- spondent. Gleim closed the" interview by saying that there was nothing he could do about it. The basis for his request for a transfer was, according to Beare, that ".. . they had a, practice in the de- partment when one section was busy of taking men from. other sec- tions, who could do the work, shifting them to that section and when that section became slack, of shifting them -back to the section or the job that they had been shifted from." Lowrey admitted that the re- spondent had such a policy. It is clear, however, that both Beare and Lowrey were referring to temporary shifts s from one section to another. Beare had not worked in the 1 and 2 spindle section for 19 months, and there is no evidence in the record that where the em- ployees had been assigned to other sections for this length of time the respondent applied its policy. We find that the respondent did not follow the above-mentioned policy-under these circumstances.a Lowrey testified that no employee had been transferred to the 1 and 2 spindle section since Beare's discharge, though employees had been shifted on and off the job temporarily due to fluctuations in the work.,' Even if transfers to the 1 and 2 spindle section had been made, according to Lowrey, Beare would not have been considered On the day Beare - was laid off four employees , w. Getter, E. Hakes, R. Marsh, and Fl.' Rauch, were transferred from the 1 and 2 spindle section to the burr section. On December 6, 1937, however, H. Stewart , and on December 12. 1937, Lester Lawrence, were transferred to the 1 and 2 spindle-section from the burr section. 8The only example cited by Beare was the transfer of one Hildebrand from the multiple spindle drill press to the. 1 and 2 spindle section. Lowrey testified that Hildebrand had been only "teinporarily" shifted from the 1 and 2 spindle section to the multiple spindle drill press and that the respondent had never considered him to be a multiple drill operator. 9 Beare testified that he had greater seniority than Vogel, Spring, Hufford , Brewer, and Coffey, who were retained in the 1 and 2 spindle section at the time he was laid off. Under this view the respondent 's refusal to transfer Beare to the 1 and 2 spindle section does not in itself show discrimination as to Beare. The employment records show that while Beare had greater departmental seniority , the above-named employees had greater seniority in the 1 and 2 spindle section , and it appears that sectional seniority was followed. 10 But see footnotes 7 and 8, supra. NATIONAL CASH REGISTER COMPANY 1005 for a transfer since his work there had been below average and Beare had been transferred from the 1 and 2 spindle section to the 4 and 6 spindle section at his (Beare'sy request." . In determining who should be laid off the respondent. took into consideration the employees' seniority and ability. Gleim testified, and- we find, that sectional rather than departmental seniority was followed.12 At the time Beare was.laid off eight employees 13 were transferred from the 4 and 6 spindle section to the burr section. In- explaining this Foreman Lowrey testified that the respondent hires young men immediately after they have finished high school for the work in the burr section, trains them, and if they show ability transfers them to other sections. He stated that-employees who were transferred had been in the 4 and 6 spindle section for only a short time, were good operators, and the respondent wished to keep them. Apparently Beare recognized this practice since he did not request a transfer to the burr section at the time of his lay-off. Although he had worked in the .4 and 6 spindle section for only about 6 weeks, Maurice Driscoll was retained there at the time Beare was laid off. Driscoll was laid off in March 1939. Lowrey testified that Driscoll was retained because he had greater ability than Beare. Beare testified that one Eby, 14 who had less seniority than he, was retained in the 4 and 6 spindle section at the time he was laid off. While the retention of these two employees in preference to an active member of the United with greater seniority gives rise to some sus- picion that Beare was subjected to discrimination, we note that of the six other employees 'S laid off in the 4-and 6 spindle section on the day Beare was laid off, at least two had greater seniority than Beare. About October 1937 Beare complained to Barr. that his foreman, Bodenmiller, favored certain employees by giving them assignments "Lowrey testified that Beare 's operation in the 1 and 2 spindle section was reaming, .that his wage there was 6 cents per hour below the average for the section ( the figures are based on 1 week of each month of employment ), and that upon Be^re 's requ-st he was transferred to the drilling operation in the 4 and 6 spindle section . Beare contended that his operation in the 1 and 2 spindle section was drilling. Lowrey admitted that Beare had probably done some drilling jobs there, and that the 1 and 2 spindle machines were suitable for the drilling operation. 12 Lowrey testified that the respondent took into consideration the man's "length of service with the Company ." Frederick G. Barr , Supervisor of Industrial Relations, stated in a letter that the policy was to consider "length of service first." 13 These employees are B. Archer, G. Gheen, H. Hurt, L. Kesling, A. Kettler, 0. Peters, G. Struve, and B . vickroy. 14 Eby was one of a group of young employees who had been transferred to the 4 and 6 spindle section - from the burr section . The other members of the group were returned to the burr section when Beare was laid off. 11 These employees are A. Abraham, C. Harm, W. Kenzie, F. Lloyd, J. Philrps, and C. Shad- rack. Lowrey testified that Abraham and Shadrack had greater seniority than Beare. Gleim testified that Shadrack had 18 years of,service and that his latest,periodlof employ- ment began on, November 6, 1935. Ile further testified that Harm had 17 years' service, Kenzig had 14 years' service and Lloyd had 6 years and 8 months ' service with the respond- ent. He did not state the dates on which their last periods of employment began. 1006 DECISIONS Or NATIONAL LABOR RELATIONS BOARD. on which greater production might be had, that he was assigned tedious work on which the rate of pay was set too low, and that his requests to have the jobs on which he worked checked and the rates raised were refused. Bodenmiller denied having thus discriminated against Beare and. explained that assignments to particular opera- tions were made with regard to the ability of the specific employee to do the particular assignment. Lowrey and Bodenmiller further testified that there was no way of determining which. assignments would prove most profitable to the employee. We find that the re- spondent did not discriminate against Beare in the assignment of work. According to Lowrey, he never refused to investigate any job when Beare complained about its rate. Lowrey reviewed the last three complaints made by Beare. On the first, the test showed that Beare was making. 711/2 cents per hour or 135 per cent of the'job rate, and the rate was not changed. On the second, there was a-failure to allow for the time lost in loading and unloading the gigs, and the rate was increased. On the third, where Beare said he could not make 55 cents per hour, two other operators checked the job; one made $1.05 per hour and the other 99 cents per hour. The rate was not changed. We find that by laying off Walter C. Beare the respondent did not discriminate in regard to his hire and tenure of employment. . James Coatney was first employed by the respondent as a mill- wright for the summer vacation period of 1934. On April 6, 1936, he was reemployed. He was laid off on. September 20, 1937. - Prior to the formation of the United, Coatney had been active in United . Electrical Radio and Machine Workers of America, Local 801, in Dayton. He distributed handbills and pamphlets at the re- spondent's plant. In September 1936 lie invited a representative of the United to come out to the plant and address the employees. Coatney testified that Thomas Mahlmeister, his job foreman, lis- tened to part of the address, and entered the plant; immediately there- after Harry Brusman, Coatney's foreman, came out and listened to the speech. Coatney went on to testify that on the following day Brusman said to him, "Say ... who was that friend of yours out there talking to you yesterday? ... Was it a friend or was it someone that was going to blow up the plant and had dynamite in the suitcase." Mahlmeister and Brusman deny that they either attended the meeting in question or made any statement'to Coatney relating to it. . - . During August 1937 the United was organized and Coatney became its president. He negotiated with the respondent in his official capacity. . Coatney testified that on one occasion he questioned Brusman as to' why he was not given a raise at the time one was granted all other millwrights. According to Coatney, Brusman replied that "There was NATIONAL CASH REGISTER COMPANY 1007 nothing wrong with my work but he felt that I needed a little jogging up..." Coatney believed that the "jogging up" referred to his union activities. Brusman testified, however, that he "wanted to bring him up to snuff in his, work" and that by "jogging up" he, meant that Coatney had to -improve his work. Brusman further testified that 'Coatney at the time attributed the deficiency to his helper and, re- quested that a millwright be assigned to work with him instead of a helper. The request was granted. Mahlmeister corroborated Brus- man's testimony.- About a month after the foregoing incident Coatney received a raise. On September 20, 1937, six millwrights, including Coatney, and -two millwrights', helpers were laid Off.', Coatney did not have senior- ity over any of the millwrights retained but had seniority over the helpers retained. Coatney testified that in prior years when lay-offs were necessary the. respondent. retained the millwrights and laid off helpers Who had less seniority. He,requested Gleim to keep, him on as a millwright. Gleim denied that in past years the respondent had laid off helpers before the millwrights and explained that helpers were retained as an economy measure, since the practice was to work a millwright and a helper together on one job,"' No millwrights or helpers have been rehired since Coatney was raid off. The evidence does not establish that the respondent generally laid off helpers and retained millwrights in slack periods. We find that by laying off James Coatney the respondent did not discriminate in regard to his hire and tenure of employment. Jacob Flick was first employed by the respondent on July 13, 1936, and was assigned to the punch press No. 1 department. During September 1937, 21 employees, including Flick, were laid off in this 'department, Flick being laid off on September 23. During Novem- ber 1937 about 25 more employees were laid off. During September 1938 about 30 employees were recalled, including Flick. During March 1939 about 20 employees were laid off. Flick, who was one of these, was laid off on March 22. Flick was sergeant at arms of the United, distributed copies of the United's newspaper in his department, and wore his union button on the job. His union activity was known to Mathias Babo, his job foreman, who on one occasion communicated a telephone message to Flick concerning g-a union meeting. Flick testified that on another 16 Mahlmeister further testified that while he had criticized Coatney only twice, his work required "a lot" of supervision. 17 On September 20, 1937, Lawrence F. Miller, a millwricht having less seniority than Coatney. was given another job at a reduced rate of pay. While Coatney received no such offer, he was asking to be kept on as a millwright at the time he was laid off . , About a month after he was laid off, Coatney requested a job as.he'per . Barr , to whom the request ,Was made, said they had been laying off employees and there was no place to put.him. 16 Millwrights are paid a substantially higher rate than is paid to helpers. 1 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occasion Babo touched Flick's coat lapel-, on which he was wearing his United button, and asked, "What is that you have got there." Babo denied this. Flick testified that after he was laid off he talked to Gleim concerning reinstatement . and Gleim told him that the "C. I. 0." caused strikes and was composed of a "bunch of radicals." Gleim denied this and attributed the latter remark to Flick. Gleim and Arthur Throm, foreman of the department, testified that in determining who should be laid off they considered the employees' seniority, ability, versatility, and the number of persons dependent on them. At the time Flick was laid off, Conrad, Gilliotti, . and Flaugher, with less seniority than Flick, were retained in the punch: press No. I department. Throm explained at the hearing that Con- rad was originally hired with a view to transferring him to the rate department as soon as a vacancy occurred there. In September 1937 Throm told one Whistler,. foreman of the rate department, that a reduction was necessary and that as Conrad was one of the last to be employed they would have to lay him off. Whistler asked Throm to retain Conrad for a week or two and promised that Conrad would then be transferred to the rate department. Not "very long" there- after he was transferred to the rate department. Throm and Babo asserted that Gilliotti was retained because he could efficiently operate all of the machines in the department. Throm further testified that Flick, due to his large hands, was incapable of operating machines producing small pieces. Babo first testified that ,Flick was a good operator on the large presses, but that he could not make his minimum wage rate on the small presses. Later he changed his testimony, admitting that Flick could make his minimum wage rate when turning out small pieces but contending that he could not earn as much on these jobs as he earned when working on the larger pieces. Flick testified that he always made his minimum wage. rate while processing small pieces. This was corroborated by the pay-roll cost supervisor. Throm stated at the hearing that Flaugher had worked on the automatic Dowell pin grinders, the automatic T machine, No. 3 flywheel Bliss, No. 4 flywheel Bliss, and all the regular punch presses. Babo, however, merely claimed that Flaugher had operated three different presses. Flick denied that Flaugher had operated any machines which he could not operate and added, that his hands are smaller and slenderer than Flaugher's. In view of the conflicting testimony 'of the respondent's witnesses, we give credence to Flick's testimony and find that Flick was an efficient operator on the presses producing small pieces. We note,. however, that in Flick's depart- ment 21 -employees were laid off in September 1937, and 'about .25 more employees were laid off in November 1937. When approxi- NATIONAL CASH REGISTER COMPANY 1009 mately 30 employees were recalled during September 1938 Flick was among them. The record shows no systematic effort to rid the plant of union members, and no reason appears why the "respondent, with a view to crippling the United, should have singled out this union member for discrimination. We find that by laying off Jacob Flick on September 23, 1937, the respondent did not discriminate in regard to his hire and tenure of employment. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the, following : CONCLUSIONS OF LAW 1. The operations of National Cash Register Company constitute a continuous flow of trade, traffic, and commerce among the several States and between the United States and foreign countries, within the meaning of Section 2 (6) of the Act. 2. United Electrical, Radio & Machine Workers of America, Local 807, and N. C. R. Employees' Independent Union are labor organiza- tions within the meaning of Section 2 (5) of the At. 3. The respondent has not discriminated in regard to the hire and tenure of employment of Walter Beare, James Coatney, and Jacob Flick, within the meaning of Section 8 (3) of the Act.. ORDER Upon the basis of the above findings of fact, stipulation, and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations At, the National Labor Relations Board hereby orders ' that National Cash Register Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : . (a) In any manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or aid labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act; (b) Discouraging membership in the United Electrical Radio .& Machine Workers of America, Local 807, affiliated with the Congress of Industrial Organizations, N. C. R. Employees' Independent Union, or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment, or any term or condition of employment; 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In any manner dominating or interfering with the adminis= tration of the N. C. R. Employees' Independent Union, or its suc- cessor, or successors, and with the formation or administration of any other labor organization of its employees, and from. contributing aid or support to said organization or to any other organization of its employees. 2. Take the following affirmative action which the Board finds will effectuate the policies and purposes of the National Labor Rela- tions Act: (a) Offer to Fred Clauss full and unconditional reinstatement 15 to his former position of employment without prejudice. to his sen- iority or other rights and privileges previously enjoyed by him. Said offer shall be made by the respondent by registered mail, . return ,receipt requested, and acceptance shall be made within a period of ten (10) days from the receipt thereof, otherwise said offer shall be deemed rejected; (b) Make whole Fred Clauss for any loss of earnings he may have suffered by reason of his discharge, by payment to him of a sum equal to that which he would normally have earned during the period from the date of his discharge to the date of the offer of reinstate- ment, less his net earnings during said period; (c) Post and' keep visible in prominent places on each floor of respondent's Dayton plant for a period of sixty (60) consecutive days '20 notices stating that respondent-will not engage in the conduct. from which it is ordered to cease and desist as aforesaid ; , (d) Notify the Regional Director for the Ninth Region, in writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT JS FURTHER ORDERED that the complaint in so far as it alleges that the respondent discriminated in regard to the ' hire and tenure, of employment of Walter Hofaker, George Rudasill, Walter Beare,.. Janies:Coatney, and,Jacob Flick, within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed. MR. EDWIN S. SMrrH took no part in the consideration of the above Decision and Order. 19 According to the stipulation, the offer of reinstatement. to Clauss was to be made immediately upon. approval of the stipulation by the Board. In the event that at the time of the Order herein Clauss already has been offered reinstatement, the Order will' require no further action in tbis.respect. . 20 The stipulation provided that the notice should be posted promptly after notice of the Board's approval of the stipulation was received. If at the time of the Order-herein appro- priate notices have been posted for the required period the Order will' require no further action in this respect.