Minneapolis-Honeywell Regulator Co.

In the Matter Of MINNEAPOLIS-HONEYWELL REGULATOR COMPANY and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, LOCAL No. 1145; AN AFFILIATE OF THE C. I. O. Case No. C-1769.-Decided July 10, 1941 Jurisdiction : temperature controlling devices manufacturing industry. Unfair Labor Practices Interference, Restravat, and Coercion: anti-union statements ; discriminatory enforcement against union members of Company rule against visiting by em- ployees during working hours ; urging employees not to present grievances through labor organizations. Discrimination: discharge, lay-off, or refusal to reinstate because of union mem- bership and activity ; charges of. dismissed as to five employees Remedial Orders: reinstatement with back pay for six employees; back pay for two employees Mr. Lee Loevinger and Mr. Henry W. Lehmann, for the Board. Fletcher, Dorsey, Barker, Colman c6 Barber, by Mr. Clark R. Fletcher, of Minneapolis, Minn., and Mr. Robert H. Biron, of Min- neapolis, Minn., for the respondent. Helstein c6 Hall. by Mr. Ralph L. Helstein, of Minneapolis, Minn., for the Union. Mr. Louis Newman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges 1 duly filed by United Electrical, Radio & Machine Workers of America, Local No. 1145, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighteenth Region (Minneapolis, Minne- sota), issued - its complaint dated June 7, 1940, against Minneapolis- Honeywell Regulator Company, Minneapolis, Minnesota, 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 charge was filed on November 1, 1939, amended charges on January 2 and June 4, 1940, and a supplemental charge on July 16, 1940. 33 N L. R B., No. 60. 263 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Copies of the complaint and of notice of hearing thereon were duly served on the respondent and the Union. With respect to the unfair labor practices, the complaint, as amended at the hearing,2 alleged in substance that the respondent had discharged or laid off and had failed or refused to employ 13 named employees because of their membership in and assistance to the Union or its predecessors, and that it had advised, warned, and threatened its employees against becoming or remaining members of or assisting the Union and its predecessors or any labor organization, had insti- gated opposition to union membership and activities among its em- ployees, and had otherwise interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. - On June 19 and July 29, 1940, respectively, the respondent filed an answer and an amended and supplemental answer, in which it denied having committed any unfair labor practices. In the amended and supplemental answer, it was affirmatively alleged that 12 of the 13 employees named in the complaint had been discharged or laid off because of insufficient work, that 4 of these 12 employees had since been reinstated, and that the thirteenth employee had been discharged for cause. Pursuant to notice, a hearing was held at Minneapolis, Minnesota, from July 19 through August 8, 1940, before T'ilford E. Dudley, the Trial Examiner duly designated by the Chief Trial Examiner. The respondent, the Union, and the Board were represented by coun- sel 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. A motion by counsel for the Board at the close of the Board's case to conform the plead- ings to the proof as to names and dates and to correct other "im- material variances" was granted without objection. A motion by the respondent at the close of the Board's case to dismiss the complaint or various parts thereof was denied by the Trial Examiner. The Trial Examiner also excluded from evidence copies of four hand- bills printed and distributed by the Union and offered by the re- spondent,3 and denied a request by the respondent for leave to call 2 On motion of counsel for the Board, and without objection , the names of Ed Forseth, Annette Skinn , and Hans Lindahl were struck from , and the names of Irwin John Farrell and Reahn I. Reinhard were added to, the employees against whom the complaint alleged the respondent had discriminated. At the close of the Board 's case the complaint was amended, over the respondent's objection , by adding to the allegation that the respondent had discriminated against certain employees because they "joined and assisted the Union" the phrase "or its predecessor organizations." The amendment served only to conform the complaint to the proof, and the Trial Examiner granted leave ,to the respondent to recall witnesses for any additional cross-examination deemed necessary because of the amendment . We affirm the Trial Examiner's ruling permitting the amendment. 8 The Trial Examiner excluded them as irrelevant . During oral argument subsequently held before the Board, counsel for the respondent conceded that these proffered exhibits are not material to a consideration of the unfair labor practices involved' in the proceeding. MINNE'APOLISLHONEYWELL R'EGULAT'OR COMPANY , 265 all its employees for the purpose of testifying as to whether the respondent had in any way interfered with or discriminated against them. Other rulings on motions and on the admissibility of evidence were also made by the Trial Examiner during the course of the hearing. The Board has reviewed all the rulings of the Trial Ex- aminer and finds that no prejudicial error was committed. The rulings are hereby affirmed. At the close of the hearing the parties were given, but did not avail themselves of, the opportunity to argue orally before the Trial Examiner and to file briefs with him. Thereafter, the Trial Examiner issued his Intermediate Report dated December 26, 1940, copies of which were duly served on the respondent and the Union. He found that the respondent had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist there- from, that it offer reinstatement to 7 of the 13 employees named in the complaint, and that it reimburse these 7 employees and 1 other for any losses in pay suffered by them because of the re- spondent's discrimination. As to 5 of the 13 employees named in the complaint, the Trial Examiner recommended dismissal. On February 4 and February 6, 1941, respectively, the respondent and the Union filed with the Board their exceptions to the Inter- mediate Report; and on February 28 and March 15, 1941, respec- tively, they filed with the Board briefs in support of their exceptions. Thereafter, pursuant to notice duly served on the parties, a hearing was held before the Board in Washington, D. C., on April 10, 1941, for the purpose of oral argument. Both the respondent and the Union were represented by counsel and participated in the hearing. The Board has considered the exceptions and the briefs submitted by the parties, and hereby finds the exceptions to be without merit in so far as they are inconsistent with the findings of fact, conclusions of law, 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 4 The respondent, a Delaware corporation, manufactures and sells temperature controlling devices of various kinds. It has factories at Minneapolis, Minnesota; Chicago, Illinois; and Wabash, Indiana, and maintains branch sales offices in 44 cities located throughout the United States. It owns subsidiary corporations operating in Phila- delphia, Pennsylvania; Toronto, Canada; Amsterdam, Holland; Lon- don, England; and Stockholm, Sweden. 4 The facts as to its business have been stipulated by the respondent. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The principal raw materials purchased by the respondent for use at its Minneapolis plant are steel, copper, mercury, brass, platinum, glass, and bakelite. The purchases for the Minneapolis plant totaled approximately $1,400,000 in value during the year 1939; approxi- mately 90 per cent thereof was shipped to the Minneapolis factory from outside the State of Minnesota. The total sales of products manufactured at the Minneapolis plant exceeded $6,000,000 in value during that year; approximately 95 per cent thereof was shipped to points outside the State of Minnesota. The respondent admits that it is engaged in interstate commerce within the meaning of the Act and that it is subject to the jurisdic- tion of the Board. II. THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America, Locals No. 1140 and 1145, are labor organizations affiliated with the Con- gress of Industrial Organizations. International Association of Ma- chinists, Local No. 382, is a labor organization affiliated with the American Federation of Labor. Steel and Metal Workers Industrial Union, Minneapolis-Honeywell Independent Union, Twin Cities Tool and Die Makers Club, and the Tool Room Committee are or were unaffiliated labor organizations. III. THE UNFAIR LABOR PRACTICES A. Background The respondent's employees have, at various times, formed and joined a number of labor organizations, including some affiliated with the American Federation of Labor and the Congress of Industrial Organizations, and some unaffiliated unions. One of these unaffili- ated unions reached an informal understanding with the respondent concerning tool and die makers, as is hereinafter described, but none of the organizations ever obtained sufficient membership to receive or claim recognition as exclusive representative of all the production employees. At the beginning of the period covered by the testimony, i. e. in 1933, a few employees belonged to Local No. 382 of the Inter- national Association of Machinists. In 1933, William Mauseth, who was not then employed by the re- spondent, was an officer of Local No. 91 of the International Associa- tion of Machinists, and chairman of the organization committee of the Tool and Die Makers Club. He was well known as an active organizer among the tool and die makers in Minneapolis and St. Paul. Eric Wistrand, who was in charge of the respondent's tool room until promoted in 1934, testified that Mauseth had been con- nected in the public press with "Communistic activities and radical- MIN'\EAPOLIS)-HONEY`VELL REGULATOR COMPANY 267 ism, and all that . . . and, consequently, he couldn't stand very high amongst those that knew his name." In fact, a society to which Wistrand belonged, the International Order of Good Temperance, had at Wistrand's suggestion stopped renting its hall to an organiza- tion in which Mauseth was active, for fear that "our temperance or- ganization should be mixed up with it and be rated as Communistic activities and their being around would spoil the place." In the early summer of 1933, Mauseth spoke to Wistrand about get- ting a job at the respondent's plant. Wistrand said he would let Mau- seth know. Later, some tool and die makers were hired, but Mauseth was not called to work. Consequently, he again spoke to Wistrand, who replied that he did not think it was advisable for Mauseth to try to get a job at the plant, because the respondent would not hire him on account of his labor activities.5 In July 1933, while Wistrand was away on vacation, Mauseth went to the plant and asked if they needed any tool and die makers. The employment manager replied that they did. Mauseth filled out an application under his own name. The employment manager took the application into another room, then returned in about 10 minutes and said he was sorry but he had made a mistake and the company was not hiring any tool and die makers. The next day Mauseth reappeared at the plant, spoke to the same man, and gave him another application, using the assumed name of William Dosen. The employment manager took this application into another room. This time, however, he returned with the foreman of the tool room and introduced him to Mauseth, alias Dosen. Mauseth was then employed and started work the next day, July 10, 1933. That summer Mauseth, Adams, Lundberg, Swenson, and Lundquist in the,tool room, and Mayville in the punch press department, started a new unaffiliated union called Steel and Metal Workers Industrial Union. Practically all the employees in the tool room joined. On July 18, 1933, Mayville was discharged by the respondent. At about the same time, Foreman Fred Eklund told Mauseth, alias Dosen, that it was to his best interest not to carry on any organizational work in the plant, that the company was too big and too powerful to organize, and that able fellows like him could get a good job if they "followed a different line in the plant.'" However, Mauseth continued his activity. On August 14, 1933, he was discharged. 6 Wistrand testified it was possible Mauseth talked to him about getting a job and he thought Mauseth had, but he doubted if he had promised Mauseth any employment. He did not otherwise deny these conversations O This finding is based on Mauseth 's testimony Eklund denied he had any such talk. Although Mauseth's testimony must be regarded critically because of his intense interest in union success , Eklund did not impress the Trial Examiner as being a credible witness. Furthermore , Eklund knew Mauseth was an active union organizer in 1933 and had heard him make speeches , and the Trial Examiner found that Eklund semed to regard Mauseth as a dangerous character . Because of these facts , Mauseth 's testimony is accepted by us in this instance , as it was by the Trial Examiner 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the Steel and Metal Workers Industrial Union tried to spread from the tool room into the punch press department, Lundberg and Lundquist were "caught" by McCutcheon 7 talking to an employee in the punch press department. The next day Wistrand, who had returned from vacation in the meantime, called them into the office and said that they would have to stay on their jobs and that the company wouldn't stand for any organizing "in there." Nevertheless, some members were obtained for the new union in both the punch press and the hand screw machine departments. Some time thereafter, Sig Morud, an employee in the hand screw machine department, asked Lundquist for some Industrial Union application blanks. Lundquist gave him some blanks the next day. Morud and employee Bloomberg then proceeded to distribute the applications among the hand screw machine workers. Foreman McCutcheon reported this to DuToit, the respondent's vice president in charge of production, who in turn called in Wistrand. Wistrand said that he thought the men were passing out union application cards, but that he believed Bloomberg innocent and was of the opinion that "somebody else had gotten him to do some running around the plant for him." Both Bloomberg and Morud were there- upon discharged. Wistrand, however, persisted in his belief that the wrong men had been discharged. He went to Bloomberg's house and "told him we are very anxious to find out what really transpired here and see what we can do in order to straighten things out." Wistrand also told DuToit that he thought they should have a hearing about the matter, and he wrote a memorandum setting forth his views. To Lundquist he said : "If I could have found evidence that would have showed you were guilty of that, I would have fired you right then and there, and there was nothing more I would like to do as that, because of this : when you as an older man would be small enough to use a young, inexperienced man like Bloomberg to do some work you know well enough might cause him trouble, then you should be penalized for that." 8 Bloomberg was later reinstated. In the spring of 1934, the respondent's vice president and general manager, H. W. Sweat, who has since become president, employed the William J. Burns International Detective Agency, Inc., to con- duct an investigation among the employees in Minneapolis. Sweat testified : "It [the Burns Agency] was hired by me in 1934 to follow the activities of a man named Harry Mayville 9 and one other man 7 McCutcheon became foreman of the punch press department on September 5, 1933. Although the record is not clear, it appears that he was a supervisory employee before that time. 6 This is based on Wistrand's testimony. There was other testimony that DuTolt made similar remarks, which he denied. 9 Mayville had been an employee of the respondent in 1933. MINNEAPOLIS-HOMYWELL RIEGTJLATOR COMPANY 269 who I think is known as Carson . . . It had been reported to me that certain rather radical elements were forming certain indepen- dent unions around town and I wanted to find out what was going on' as far as those activities of Mayville might have been concerned . . . The interests of the Minneapolis-Honeywell were simply that we considered these men radicals and Communists and if they were working around our plant we wanted to know it." Sweat also testified that Mayville and Carson were active in the Steel and Metal Workers Industrial Union; 10 that the daily reports from the detective agency related to what Mayville and Carson were doing and what calls they made, if any ; and that the reports were thereafter destroyed. The accounts paid by the respondent for this surveillance indicate that it was carried on from March 16 through May 14, 1934, by a total of six different operatives, and at a cost of $1,151.70. The Industrial Union ceased to function at about that time, and there was little, if any, union activity in the plant for approximately a year. Since they ocurred prior to the effective date of the Act, the events above described do not constitute unfair labor practices. It is, how- ever, well settled that they are material and relevant to a considera- tion of the respondent's conduct and practices subsequent to the effec- tive date of the Act. We are of the opinion that the employment and discharge of Mauseth, alias Dosen, the Bloomberg incident, the respondent's use of a detective agency for surveillance purposes, and the warnings against union activity given by supervisory employees were indicative of a policy on the respondent's part to thwart the unionization of its employees. B. 'Interference, restraint, and coercion In the spring of 1935, some of the older employees rejoined Local No. 382 of the International Association of Machinists. In 1936 the movement to Local No. 382 grew; 300 to 400 employees, largely from the machine shop, punch press, hand and automatic screw machine, and drill press departments, joined at that time. In 1936, while Local No. 382 was campaigning for members, E. C. McCutcheon, foreman of the punch press department, called the screw machine and drill press operators on both shifts into the bake- lite room. He then addressed the 75 or 80 employees so assembled for 10 or 15 minutes, telling them that the respondent had treated everybody right, that it was paying higher wages than the union schedule called for, and that he saw no reason for their joining Local 10 He also testified that he thought this union was not in existence at that time, but was formed later. In this respect, he appears to be mistaken . The activity occurred in 1933 and 1934. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No. 382.11 By this conduct on McCutcheon's part, the respondent interfered with, restrained, and coerced its employees In the exercise of the rights guaranteed in Section 7 of the Act. Later in 1936, the Minneapolis-Honeywell Independent Union was organized. Employees began to leave Local No. 382 and to join the Independent. Thus, employee Forseth testified that he was secre- tary-treasurer of Local No. 382, but that employees in his department (i. e. the plinth press department) dropped out of the Local and joined the Independent, and that he himself became secretary-treas- urer of the latter. Armstrong became president and Nels Bakken vice president of the Independent. In the late fall of 1936, Forseth was called into the office of the respondent's vice president, DuToit. There he found assembled em- ployees from the respondent's spray room, to whom DuToit asked Forseth to explain the "principles" of Local No. 382. Forseth stated that his department "wasn't so much in favor of Local No. 382 be- cause they wouldn't back us up," and that "in the by-laws of Local No. 382 it says that any money that is paid into the lodge can be confiscated by-I imagine it went to the office or was sent to the home local, or whatever it was." Forseth advised the men not to join Local No. 382. DuToit remained during this discussion, but did not say anything.12 However, by arranging for the anti-union advice to be given in his office, and by remaining present throughout, he sanctioned Forseth's statements and gave them greater weight than they would have had if made under normal circumstances by one employee to another. By such acts, therefore, the respondent interfered with, restrained,. and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. In' May 1937, after Lundquist had spoken to other employees about transferring from the Independent to Local No. 382, he was given a written warning by George Wise, tool room general foreman, that he would be discharged without further notice if he repeated the offense of "leaving department without permission of foreman." 13 At about the same time in 1937, when employees Dahl and Judge 11 This finding is based on the testimony of former employee Ekberg. McCutcheon testi- fied • "I had mfetings with the men quite frequently because I invited them to come to me with any difficulties that they had in connection with anything that they didn't think was just right." Be said they discussed conditions in the drill press department , piece- work rates, and similar matters ; he denied, however, any discussion of unions or union wage scales. On the last point, Ekberg's testimony was accepted by the Trial Examiner as more credible, and we agree. i2 The record does not disclose any explanation by DuToit of his participation in this meeting. 13 Wise testified: "There had been complaints from various foremen in the departments concerning Lundquist's presence in their department , as to whether he actually had any business there or not," and he gave him the notice "because I knew he had duties outside of the department, and I wanted him to be sure that he had permission to be absent on legitimate duties." MTN'NTEAPOLIS-HONEYWELL REGULATOR COMPANY 271 distributed union application blanks in the plant, they were warned by Foreman Haugen, who gave them a copy of the respondent's printed EMPLOYMENT POLICY with one section marked foi their attention ; the section so marked listed "Engaging in activities, outside of regularly assigned duties, during working hours" as a ground for discharge without notice. The record also shows that Lundquist, in July 1939, received , warning from Foreman Wise similar to that received by him in May 1937. There is conflicting testimony as to whether Wise, at the time, told Lundquist that he was being given the warning because of his union activities. In view of Wise's anti-union activities, we find that this statement was made by Wise to Lundquist in July 1939. Wise admitted at the hearing that Lundquist's was the only case in which he ever gave an employee written warning against leaving the department. We are convinced- and we find that the respondent's rule against visiting by employees was enforced with particular strictness against Lundquist and the other employees mentioned, and that a similarly strict enforcement of the rule was directed against other active union members, such as Ekholm and LeVoir. However, the rule against visiting was not enforced with equal strictness against employees who opposed unions. As is found here- inafter, employees Mattes, Lockren, and Rogers 14 left their depart- ments in April 1937, went to employee Dahl's machine, and warned Dahl against union activity. When Dahl reported the incident to Superintendent Foster, the latter said he was sorry it had happened, but did nothing about it. When a union protest was made to Du- Toit, he called Mattes, Lockren, a,nd Rogers to his office, read the union complaint to them, and said that he did not want any trouble in the plant. However, they were only mildly reprimanded by Du- Toit for what they had done. Similarly, as we describe in more detail below, employee Charles A. Nelson has been allowed to leave his job for substantial periods of time, even to the extent of making his work await his return,.and has been permitted for years to roam the plant at will in his extra-curricular activities, many of which- were anti-union in character. Other employees, some of them not supervisory, have also been allowed to visit in the plant and to carry on activities outside their regularly assigned duties, without the re- spondent's rule against visiting being invoked. This enforcement of the respondent's rule against, employees en- gaged in union activities and non-enforcement of the rule against employees engaged in other extra-curricular activities, including anti-union activities, is clearly a discrimination against union adher- 1+For a discussion of the supervisory or management status of these employees, see page 23 below. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ents and is designed to discourage union activities. By this dis- crimination, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The activities of Charles A. Nelson 15 Nelson started work for the respondent in 1917 as an assembler in the thermostat department. With the exception of 14 months in the Army, he worked in this department until 1921, receiving about $16 a week. • At that time, the respondent had Nelson start a new department known as the repair department. At first he worked alone, repairing instruments sent in for adjustments by customers in the field. Later, however, four or five other people were assigned to this department and worked under Nelson's supervision. When he started this department, Nelson received a raise in pay of 5 cents per hour, and by 1927 his income had been increased to approximately $38 per week. In 1927, Nelson went into the respondent's sales department, where he made, about $2,200 to $2,300 the first year. In 1929, he decided to leave the respondent's employ to go into private business, and so noti- fied the respondent. However, he was told that "there would be an opening in the advance office" if he stayed with the firm. He stayed and got the promotion. At first he received about $35 per week in the new job, but in 1937 or 1938 his remuneration was placed on a monthly basis, and at the time of the hearing he was receiving a salary of $230 a month. Nelson characterizes himself as a "parts chaser" or a "contact man" between the assembly departments and the. manufacturing depart- ments. The manufacturing departments make the parts which the assembly departments use in assembling the respondent's finished products. Nelson's job is to see that the proper parts are manufac- tured and on hand in sufficient quantities to meet the needs of the assemblers. This is accomplished as follows : the stock chasers for the various assembly departments notify Nelson, usually in writing, as to` what parts are needed next and when they are needed; Nelson thereupon,informs schedule clerks in the manufacturing departments what parts are needed next and the dates on which they must be avail- able; the schedule clerks then schedule the work of their departments accordingly. The foremen of the various departments apparently have little or nothing to say about what their departments produce, their attention being largely confined to the manner in which the machines are operated by the workmen. Sometimes a part is needed so urgently that the question arises is The findings about Nelson's position and the nature of his iNork are based upon his own testimony. MTNNEEAPOLIS-HONEYWELL REGULATOR COMPANY 273 whether a machine should be torn down from its current set-up and changed over to make the needed part. In such a situation, Nelson consults Harris or Coates.16 If a decision is then made to tear down a machine, Nelson so informs the schedule clerks,' who inform the foremen, who in turn supervise the actual work of changing it over. Nelson has one of 25 or 30 desks in the respondent's production office. In addition to stenographers and clerks, there are in that office about 10 or 12 men who purchase parts, take care of raw mate- rial stock, handle orders, and perform other administrative functions. Superintendent Foster and his assistants have closed offices alongside the open desk space. Hocking, the employment manager, has his desk just a few feet from Nelson's desk. It is, however, closed in by glass partitions, so as to give Hocking a separate office. Nevertheless, Nel- son and his proximity to Hocking are easily observable by any person visiting the office. Nelson has been a leader in two activities sponsored by the re- spondent, i. e., the Minnreg Veterans Association and the M-H News- Circulator. The former was started by the respondent in 1925, and Superintendent Foster was its first chairman. At first it was a social organization ; then it branched out to sponsor athletics ; during the depression it distributed relief to employees in need. All male em- ployees with at least 10 years service are eligible to join, and there are now about 600 ihembers. The Association is supported by annual dues of $1.00 collected from each member, and by financial support from the respondent. For 5 years or more, the respondent has made available to the Association various parking lots, now totaling five or six in number, two of which are on company property. The Asso- ciation charges employees for the privilege of parking in the lots; however, it does not maintain attendants at the lots, the fees being taken out of the employees' pay by the respondent and paid directly to the Association. For 5 or 6 years, the respondent has also had an arrangement under which boys are allowed to go through the plant selling soft drinks, on condition that a certain percentage of the profits be paid the Association. Likewise, the respondent has given the Asso- ciation leave to install candy and soft-drink vending machines in the plant, the profits from which go to the Association. Nelson was chairman of the Minnreg Veterans Association for 2 years, 1936 and 1937. Other chairmen were: General Superintendent Foster, employee Skogbald, Foreman McNicoll, employee Kenneth Roby, methods man Paul Hake, and Assistant Foreman Hoisbe. These men, including Nelson, also form the Board of Governors of the Association. Nelson was also chairman of the entertainment com- mittee for "a number of years." For 5 years, from 1932 until 1937, he 11 Harris is the production manager. Coates is his assistant 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was also chairman of the Association 's relief committee. He inter- viewed men who came to him for relief and also men reported to him as being in need. He then sent them to the Family Welfare Agency, with which he had arranged for the detailed administration of the Association's relief funds. Nelson carried this work on in the plant, often at his desk, and customarily during working hours. The re- spondent both knew and approved of his so doing. In about 1934, Nelson, Richard Larson, foreman of the finished stock department , and a third man conceived the idea of a company news- paper. They talked to the respondent's treasurer, Willard Huff, about it. They told him it would contain gossip , news from the shop and announcements of social events , but no advertising and no personalities. Huff first rejected the idea. Later, however, he said, "If we would assure him that the paper was going to be kept going and not just for a little while, it would be all right" and he would sanction it. Nelson then appointed the editors of the paper , which was thereafter called the M-H News-Circulator. Boxes were installed on all floors of the plant for the collection of news contributions from the employees . Nelson remained on the News -Circulator as managing editor, and arranged with Huff for it to be printed in the respondent's printing plant. The respondent now pays for the paper and for the printing ; 25 cents per year is charged subscribers to defray the remaining expenses. The paper has a wide monthly circulation among subscribers in all depart- ments of the plant, and can be described as a house organ of the respondent. Nelson testified that, although there were , of course , times when many employees of the respondent were laid off, he had never been ]aid off. He said that even during slack times, when there was not much work to do in supervising the movement of parts, he "just done the same work as much as there was to do, and that's all" and, if there was nothing to do in regard to- the movement of parts, then he did nothing. He further testified that, when he left his job to attend meet- ings of Minnreg or the relief committee , or because of some similar ac- tivity, no one took his place if he was gone for only "a little while." He could leave for an hour or so without a substitute and, if something jammed up the movement of parts during his absence, "they just have to wait." However, if he left work for a full day or a half day, "then somebody else has to take the work." Nelson said he had never been reprimanded for attending meetings or for going out to talk to people during working hours.. He further testified that he is the only man in the manufacturing departments who does the kind of work he does. Several employees or ex-employees of the respondent testified at the hearing that Nelson gives orders or has some supervisory or special status with the respondent . While Nelson denied at the hearing that he gives orders and testified that he has no subordinates, it is clear MINNiE'APOLIS)-HONEYWELL REGULATOR COMPANY 27 55 from the record that he told employees of the respondent on a number of occasions that he represented and spoke for the respondent. As will appear hereinafter, Nelson more than once urged employees to bring their grievances to him as a management representative, and his status and authority as such were sufficiently well recognized for him, either directly or through the foremen, to call employees from their work to attend meetings at which grievances were discussed. In view of this conflict between the position taken by Nelson with the respondent's employees and the position taken by him at the hear- ing, and in view, also, of the Trial Examiner's unwillingness to credit Nelson's testimony over the testimony of other witnesses in two other instances, we do not believe Nelson's testimony in this instance and credit the testimony of the other employees. Because of the nature of Nelson's duties, his connection with the respondent's house organ, the amount of his salary, the location of his office, the extent of his extra-curricular activities for the respondent, and the other incidents of his employment, we believe and find that Nelson's interests lie with the management, rather than with the em- ployees, and that he may properly be regarded as being identified with the management. We therefore find further, as did the Trial Exam- iner, that the respondent is responsible for Nelson's activities, and is answerable therefor whenever they contravene the provisions of the Act. In February 1937, Nelson attended a meeting of the Independent. After speeches by two officers of the Independent against Local No. 382, Nelson was invited to talk. He told about his brother-in-law who, he said, had been a member in good standing of a union 17 for 25 or 30 years, "and all of a sudden he was told that he .. . couldn't keep his job any more unless he paid the business agent six hundred dollars. He ' went to the president of the union and he referred him back to the business agent. He went to the alderman of the ward where he lived. He referred him back to the business agent. And he settled for $400.00." 18 Nelson also said that Local No. 382 was "no good"; that its members were all radicals and Com- munists; that the men should stay out of it; and that the company could "get along fine" without a union.1-8 After these speeches, grievances were discussed. Nelson said, in substance : "I am here representing the company . . . If any of you boys have any grievances as to low rates, that you can't make them, or about working conditions, or something like that, where the day 17 This union was apparently not connected in any way with the respondent 's' employees 1$ This is Nelson 's testimony. _ "This finding is based on Dahl's testimony, which was, however, denied by Nelson. The Tiial Examiner found Dahl to be a more credible witness than Nelson, and we see no season to disagree with his appraisal of the witnesses 450122-42--vol 33-19 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rate is wrong, or anything pertaining to that, I wish you would bring your grievances to me because I am at liberty at all times to handle these grievances for you." Some of the men mentioned rates which they thought were too low ; Nelson made notes of the jobs in question and said he would check up and let them know what could be done about it.20 During the serving of refreshments after the meeting, Nelson got into a discussion with employees Dahl and Judge about the merits of the union and the advisability of trying to organize other plants instead of the respondent's. Nelson asked why they had not organized other plants rather than the respondent's, and said that the respondent was fair to its employees and that it was voluntarily giving them things such as insurance and sick benefits, which it could take away if the union succeeded in organizing its plant.21 Later in the spring of 1937, Ervin Hiltz, a member of the Tool Room Committee, told Larsen, the chairman of that committee, that "he had gotten himself into a little jam" at a union meeting the night before; he had gotten into an argument, and some of the men, had called him a "fink" and almost thrown him out. Hiltz asked Larsen to call a meeting of men from different parts of the plant to straighten out, the trouble. Larsen agreed to do so, and asked about six men to meet in a small room on the sixth floor of the plant. Among them were Charles A. Nelson, and employees Ekholm and Armstrong who were, respectively, a member of the Tool Room Committee and president of the Independent. At the meeting, there was considerable discussion of Hiltz's situa- tion. This developed into an argument, which eventually turned to unions and to grievances. Nelson said it was not necessary to have a union in the plant, and that a union was not welcome, was not needed, and consisted only of racketeers. He said that, if any griev- ances came up, the men could see him and he would take care of them. He pointed out that, at some previous time, the men in the punch-press department had had some grievances; that they had in- vited him to a meeting and asked him to take their grievances up with the management; and that he had done so to the satisfaction of the men. Nelson thereupon called two or three men from the punch-press department to the meeting, and asked them to verify his statements. They did so. Somebody present said that most of the men in the 20 The findings in this paragraph are based on Judge's testimony , which was not contra. dicted in this respect by Nelson or the respondent 91 This finding is based on the testimony of employee Judge. Nelson denied having slid that the respondent could take away from its employees the insurance and sick benefits it was giving them if the plant was unionized. In view of the Trial Examiner ' s general uniuIIhngness to credit Nelson 's testimony over that of other witnesses and of the anti- union activities in which Nelson engaged, we credit Judge's testimony over Nelson's denial, and find that Nelson made the statement attributed to him MIN'NE'APOLIS-HONEYWELL REGULATOR COMPANY 277 metal-finishing department belonged to Local No. 382, and asked that their leaders be called in to the meeting. Nelson thereupon called the foreman of that department and asked him to send the men so named to the meeting on the sixth floor. The men came. There was then additional controversy, apparently between Nelson, the Tool Room Committee, the Independent, and Local No. 382 members. The meeting finally broke up in disagreement, Nelson maintaining to the end that they did not need a union in the plant and that the men should merely come to him and he would correct any grievances they had 22 The pay of the men who attended the meeting was not reduced because of the time thus spent by them. Shortly after his lay-off by the respondent in November 1937, em- ployee Carl Nord applied to Nelson for relief from the Minnreg Veter- ans Association. Nelson said he would send Nord to the Family Relief Agency for assistance, and then launched into a discussion of unions. He criticized unions severely, saying that they were no good and that all they wanted was the employees' money. On May 9, 1940, Nelson presided at a meeting of between 25 and 35 employees from the coil-winding and other departments. This meet- ing was held in Superintendent Foster's office at the close of the work- ing day, and Nelson sat at Foster's desk while he presided. The an- nounced purpose of the meeting was to discuss grievances and to in- vestigate employee Kush's alleged claim that she had been reinstated because of union pressure. However, the meeting became an inquisi- tion of union members about Kush's reinstatement, about the identity of union officials, about union benefits for the employees, and about what happened to union dues. Nelson insisted that Kush had not been reinstated because of union pressure, and took his usual position in opposition to unions. He testified at the hearing that he had not called the meeting, but had been present merely on the telephoned in- vitation of an unidentified girl. He was, however, responsible for getting Foster's office for the occasion. By his participation in the 12 Larsen testified he did not remember any discussion of grievances at this meeting, but both Nelson and Ekholm did remember such a discussion . Their recollections are credited as being the more accurate . Nelson , however, denied saying that a union was not welcome or needed at the plant , or that its members were racketeers . However, he later testified : "My opinion is that as far as the employees at the Honeywell Company are concerned, I firmly believe that the union can not do any good for them . I don't believe they can. That is my firm opinion . . . . The working conditions at the Honey- well Company, I believe, are as good or better than they are in any other place in Minne- apolis. I believe the wages are as high or on an average higher than they are in other shops, whether they are union or nonunion shops, and , therefore, I feel that if a man goes to work and pays dues , he should have something in return , and I don't believe the union can help the people at the Honeywell plant and give them anything in return for the money they pay out. " Nelson also testified : " I have expressed my opinion as to that I believe I have done that on several occasions , expressed my own personal opinion as to what I think about union in regard to the Honeywell Company and the employees of the Honeywell Company." It is therefore not unlikely that Nelson made similar state- ments at the sixth floor meeting in 1937, and Ekholm 's testimony to that effect is accepted. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting, he sponsored it on behalf of the respondent, and the re- spondent is responsible for the anti-union remarks there made by Nelson. We find that, by Nelson's conduct in attending meetings of employees both during and outside of working hours, in speaking against unions, and in continually urging employees to present their grievances through him rather than through a union, the respondent instigated opposition among its employees to union activity and membership and urged upon its employees a substitute method for handling grievances. By so doing, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. Discrimination in regard to hire or tenure of employment So far as the record shows, neither the Independent nor the Indus- trial remained active among the respondent's employees for more than a comparatively short time. The Tool and Die Makers Club and the Tool Room Committee also became more or less quiescent. Local No. 382, on the other hand, continued its efforts to obtain members for some time during 1937, and became the most active labor organ- ization in the respondent's plant. However, some time during 1937, Local No. 1140 of United Electrical, Radio & Machine Workers of America came into the field, and apparently met with some success, because on August 27, 1937 a majority of the members of Local No: 382 voted in favor of becoming members of the United. Since that time, United has been the most active labor organization in the respondent's plant. On June 1,1939, a separate local was established by the United for the respondent's employees. This was Local No. 1145, the labor organization which filed the charges in the present proceeding and which is referred to herein as the Union. In the fall of 1937, the respondent laid off or discharged a large number of its employees. Included among the employees whose employment was thus temporarily or permanently terminated were six named in the complaint herein as having been laid off or discharged because of union membership and activity. At various dates there- after, the respondent laid off or discharged the other employees named in the complaint. The respondent contends that all these employees, with one exception, were laid off or discharged because of lack of work. It will, therefore, be useful to consider first the respondent's normal policy in selecting employees for lay-off or discharge. 1. The respondent's lay-off policy : seniority In about May of 1936; the respondent embodied its then existing personnel rules in a printed leaflet entitled Employment Policy, which MINNEAPOLIS)-HOdNEYWELL REGULATOR COMPANY 279 it distributed among its employees. Except for minor changes, this policy has remained in effect ever since. They policy provides, in part, that : It will be the policy of the management when making any change in personnel, or when laying off employees for lack of work, or for any other legitimate reason, to consider length of service, when that and merit do not conflict. Superintendent Foster testified that this provision is generally interpreted as meaning departmental rather than plant seniority, but that exceptions are sometimes made in individual cases. Employees who are to be laid off or discharged or reinstated are usually selected by the department heads or foremen, after they have been told what future production in their respective departments will be. Each department head or foreman apparently carries out the respondent's seniority policy as he understands it, and it appears that the policy as thus enforced is comparatively flexible in application and is at times subordinated to immediate production and personnel needs. Early in 1936, the Tool Room Committee 23 began negotiations with the respondent with respect to terms and conditions of employ- ment. On February 16, 1937, the respondent wrote two letters to the Committee, embodying the agreements previously reached by them. The letters stated in part: The Company agrees to recognize the length of service of its employees and when work is slack to give preference to the employees you represent having the longest ;service records, subject to ratification and agreement between your Committee and the management. On November 29, 1937, the Tool Room Committee obtained a supple- mental agreement stating in part that the respondent would recog- nize, "length of service with the Company" 24 as the basis for de- termining seniority. Foster testified at the hearing, however, that plant seniority in the tool room "means the same as departmental seniority," since employees in that department are very seldom trans- ferred. The respondent's general policy as to seniority seems, therefore, to have remained unchanged. In the spring of 1937, an official of Local No. 382 and Farrell, an operator in the drill-press department, prepared a proposed con- tract for that department. This proposed contract provided, in za The record is not clear as to whether this committee was a part of, or independent of, , the Twin Cities Tool and Die Makers Club. The issue seems unimportant, since they seem to have acted in unison . Both Ekholm and Francis testified this committee was not a union. In view of its dealings with the respondent, however, we find that it was a labor organization within the,meaning of the Act. 24 Italics supplied. 280. DECISIONS OF NATIONAL LABOR RELATIONS BOARD part, that men in that department, would be laid off in the order of their seniority. After consulting with Superintendent Foster, Powers, the department foreman, announced that 'the respondent agreed to the contract, but that the drill press department would be divided into two groups, to be known as Group 160 and Group 161, the first of which would do the more skilled work, and the second of which would do the simpler work in the department. Employees in Group 161 would be laid off first, in case of necessity, their work to be taken over by employees in Group 160, who -would be retained until those in Group 161 had first been laid off: In June 1937, Foreman Powers left the respondent's employ, and Harry Long became general foreman of the machine shop, which included the automatic screw machine, the hand screw machine, and the drill press departments. When extensive lay-offs became neces- sary in the fall of 1937, Long consulted with Foster and they agreed that seniority would be considered in selecting the employees to be laid off. They also agreed that employees in Group 161 would be laid off first. In December 1938, Long prepared a statement of policy as a guide for himself in dealing with employees. Except that it clarified certain details, the statement followed Long's previ- ous policy on seniority. The statement was approved by Superin- tendent Foster and was read by Long to various groups of employees. We find that seniority, usually on a departmental basis, is one of the factors considered by the respondent as a general policy in select- ing employees to be laid off or reinstated. Since selections of em- ployees to be laid off or reinstated are made largely by department heads or foremen, the extent to which seniority is followed varies somewhat from department to department, and is at times subordi- nated to other considerations. With respect to its tool room em- ployees, however, the respondent has expressly agreed to follow departmental seniority, with the proviso that the employees in the drill-press department were to be divided into two groups, 160 and 161, the latter of which would be laid off before the former. 2. The 1937 lay-offs a. Evelyn Knutson Knutson started work with the respondent on October 10, 1932, in the glass department, at 25 cents per hour. After a month there, she was transferred to the Relay Bench Assembly, where her job con- sisted of working in a line with other girls assembling relays. She worked at this, with occasional lay-offs, until her employment was terminated on August 27, 1937. During her employment, her pay was gradually increased until on May 3, 1937, it was raised to 40 MIN'I^TiEAPOLIS-HONEYWELL REGULATOR COMPANY 281 cents per hour. Her foreman was Elder Quarfot, who was in charge of the relay assembly department. Knutson joined Local No. 382 in the spring of 1937. She testified that she was then the only girl in her department, or even in the entire plant, who was a union member, but that she was not active. She later, however, solicited members among the girls in her depart- ment and, together with other employees, transferred her affiliation from Local No. 382 to Local No. 1140 of the UERMWA.25 The respondent contends that Knutson and other married women in its employ were laid off as work for them became unavailable, and that they have not been recalled because of a policy adopted in some departments during 1935 and 1936 against the employment of married women. We shall consider first the alleged reason for Knutson's failure to be recalled to work. Quarfot testified that Hocking, soon after he became employment manager in 1935, spoke to him about the number of married women working in the plant, and said that "he was getting a lot of heat from the public" in opposition to the employment of married women when there were single women seeking work.16 Quarfot testified : "He just asked me if we couldn't get along without all these married women we had ... I told him right at that time I don't see how I could, because I had them broke in on all these older jobs, but I said I would have it in mind and when I could break into it, why, I would help him out." Quarfot further testified that at some later time, in 1935 or 1936, he decided to accept Hocking's suggestion, and formu- lated a policy against employing married women. ' Quarfot admitted that Hocking merely spoke to him about the problem of married women and never sent him any written com- munication on the subject. In fact, Quarfot never received written instructions from any source with reference to a policy on married women or to a change in the respondent's printed Employment Policy. Quarfot admitted that he had seen this printed Policy, that he knew it was given people when employed by the respondent, that it con- tained no statement against employing married women, and that no such statement had ever been published or posted. He stated that he had informed all the people in his department orally of the rule, but that he had not notified Knutson of the change in writing. The respondent's rules provide that, if any change is made in them, the employees will be so notified in writing and given the right to reject the change and to resign, if they so desire. 25 Knutson also testified that at one time some of the girls from her department came to her house, near the plant, for their lunch, and that two of her friends and co-workers, Florence Kaston and Laura Larson, told her they had been told by the foreman's secretary, Mildred Stenglein, "not to come over to my house ; that I had something to do with the union at my place " However, neither Kaston, Larson, nor Stenglein testified. Since Knutson's testimony is hearsay, no finding is made on this point. 26 Hocking also testified to the same effect. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although Quarfot claimed that he formed a policy in 1935 or 1996 against employing married women, he admittedly did nothing about it until the lay-offs of 1937. Thus, the respondent introduced into evidence a list prepared by Quarfot in the spring of 1940, which contained the names of 36 married women whom Quarfot laid off during 1937 and 1938. Five of these women had started work for the respondent in 1930 or before, 1 in 1931, 1 (Knutson) in 1932, 11 in 1933, 9 in 1935, and 9 in 1936. Whether these women were mar- ried at the time they were first employed is not shown; neither are the dates on which they were married or on which the respondent learned of their marriages. However, it is unreasonable to assume that all of them married in the summer of 1937. It is thus clear that Quarfot employed a number of married women after his policy against married women had allegedly been decided upon.27 It is also clear that Quarfot did not apply any such policy in making lay-offs; even in 1937. Thus, of the 36 women laid off on August 27, 1937, 30 were single and only 6 were married. The re- spondent failed to offer evidence showing the number or marital status of employees laid off on other dates in 1937, or of those re- tained. There is thus no evidence that the proportion of "married to single women in the August 27 lay-offs was higher in the other lay-off s of that year. Moreover, it affirmatively appears that some married women were retained after Knutson's lay-off. Thus, of the 33 mar- ried women who were terminated in 1937, 1 resigned in July, 6 (in- cluding Knutson) were laid off on August 27, and the remaining 26 were retained for at least a month or so thereafter. Three other women, Stenglein, Rugg and Rice, were retained until 1938, the latter two working until November 10-more than a 'year after Knutson's lay-off.28 In addition, at least one married woman, Norstrum, is still working in that department on what Quarfot described as a special job.29 Six of the married women who were retained after Knutson and then laid off later in 1937 were recalled to work for a "short period" in the fall of 1939.30 All these women had less seniority than Knut- son. Quarfot testified that they were selected for special jobs; "they were mostly all kick press operators", on which machine he said 2T It should be noted that the above finding does not necessarily cover all married women hired during this period, since the respondent did not submit a complete list of married employees . Thus , married women hired during these years would not be included in the above figures if they left the respondent before 1937 , or if they later became single, or if they were retained by the respondent after 1937 ° Ritter was also laid off in November 1938, but is not included in these calculations because she was not married until 1938 . Quarfot testified she was included in the list by mistake. 29 It must be again noted that the record is not complete in this respect, since evidence was not offered as to all the women in the department who were married while working. 20 One of these six women had also been recalled in 1938 and worked approximately 9 months during that year. MINNE'APOLIS)-HONEYWELL REGULATOR COMPANY 283 Knutson was inexperienced. However, he later admitted that, of the six, only one was a. full-time kick press operator, while a second was a part-time operator, and a third "was in that machine group." It further appears that Knutson had had experience in that work. When Knutson applied for reinstatement at the plant' in 1938, Superintendent Foster said that the fact that she was married had nothing to do with the refusal to reinstate her, and Quarfot said nothing about her marital status. Quarfot testified that he had never seen Knutson's application for employment, but that he had talked with her and that "she always claimed that she wasn't living with her husband." He did not learn that she had gone back to her husband until after her lay-off, when "some of the people talking around there" said they were living together. Even then, Quarfot testified, he did not ask Knutson if she was reunited with her hus- band or make any attempt to find out whether she was, in fact, living with him, although Quarfot testified that such information would have affected his application of the alleged policy. The respondent's contention that Knutson was not reinstated because of her marital status thus involves these contradictions: (1) The respondent's established general policy in selecting employees for reinstatement, as well as for lay-off, is to give consideration to seniority and merit, and there has been no written modification of that policy providing for non-reinstatement of married women, al- though the rules provide for written notice to employees of any change; (2) neither Foreman Quarfot nor Superintendent Foster, when Knutson applied for reinstatement, said that her marital status was the reason for her not being reinstated; and (3) some married women with less seniority than Knutson were reinstated. We are convinced that Knutson's marital status was not the reason for the respondent's failure to reinstate her. In the absence of any other explanation for the respondent's discriminatory failure to reinstate Knutson in her seniority order, we infer and find that it was due to the fact that she was the first woman in the plant to become a union member and also to her union activity. The respondent contends that Knutson was laid off on August 27, 1937, for "lack of work". Foreman Quarfot testified that a total of 36 employees were laid off in his department on the same date, that other, employees had been laid off prior to August 27, and that "quite a few" were laid off afterwards. On the other hand, it is admitted by the respondent that employees with less seniority than Knutson were retained after she was laid off. Quarfot testified that the lay-offs were not made in order of seniority, and that Knut- son was one of the oldest employees in his department. No claim is made that Knutson was less efficient than the employees with 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD less seniority who were retained, and the respondent expressly denies that marital status was a factor in selecting the employees to be laid off. There is some evidence that the employees in Knutson's department worked in groups and were laid off by groups, as the work in each group tapered off, and that, these group lay-offs cut across seniority lines. There is no showing, however, that the work was of such a nature as to make realignment of groups by transfer of employees difficult. On all the facts, including the respondent's discriminatory refusal to reinstate Knutson, we find, as did the Trial Examiner, that the respondent discriminated against Knutson by selecting her for lay off in complete disregard of its general seniority policy, and that this discrimination was due to Knutson's union membership and activity. By thus laying off and refusing to reinstate Knutson, the respond- ent discriminated in regard to her hire and tenure of employment, discouraged membership in labor organizations, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. b. Conrad Dahl Dahl started work for the respondent on April 27, 1929, in the relay inspection and timing department. From January 21, 1932, until September 16, 1936, except for occasional lay-offs, he' worked as a punch press operator. On that date, he was transferred at his own request to "out-side" work as an installer in the Twin Cities Branch Service department. After 2 months' employment there, he was laid off. On January 28, 1937, he was reinstated as a punch press operator, and he worked in that capacity until his final lay-off on September 24, 1937. His initial pay was 40 'cents per hour. It rose to 45 cents on May 13, 1929, but thereafter fell to 36 cents on April 24, 1933; since then it has again risen and, when finally laid off, he was receiving 55 cents per hour. Dahl joined the Steel and Metal Workers Industrial Union in 1934. He started to be active in Local No. 382 in 1936, and became a member of the organizing committee. However, he did not actu- ally join Local 382 until April 1937, when he commenced wearing his union button in the plant. He then became a shop steward and as- sisted in the presentation of grievances to the respondent. In July 1936, Ernest Borge 31 engaged in a conversation with Dahl at the latter's machine. Borge told Dahl to "lay off" unions, saying that they were made up of a bunch of radicals and communists and 31 Borge was a tool maker in the relay assembly department from 1927 or 1928 until 1931 or 1932 . He „as later put in charge of a departmental tool room and continued as such until about 1936 , when he was promoted to a position as trouble shooter in the methods department . We find that Borge was, in 1936 , a part of management. MINNE'APOLIS-HONEYWELL REGULATOR COMPANY 285 that the respondent would not tolerate them. Dahl said that the employees needed the union and that he was going to "stick by it." Borge then warned Dahl that, when there was a lay-off, he would not be rehired.32 At about the same time, Charles Nelson told Dahl that if he had any grievances he should take them up with Nelson, who would take them up with the respondent. Nelson said that the respondent did not want any union in the plant, and that it would take away some of the employees' privileges, such as insurance, if the plant were unionize'd.33 - In February 1937, as has been found above, Dahl and employee Judge got into a discussion with Nelson at a meeting of the Inde- pendent. Nelson argued that a union was not necessary; Dahl and Judge argued that a union was necessary. In April 1937, Cyril Mattes was a group • leader in the relay de- partment stockroom, with about four men under his supervision. He has since been placed in charge of the stockroom. Carl Lockren started with the respondent in 1929 as a packer. Since then he has worked his way up in the respondent's employ; first, he was given a special assignment in the field; then he went into the relay repair department; in about 1932 he was placed in charge of that depart-' ment; then he went into the engineering test department, testing controls; in about 1936 he became a methods engineer in the methods department. That job "took in trouble shooting and setting up new manufacturing lines in the production department of the factory, particularly assembly lines." In April 1937, Lockren was engaged in setting up an assembly line and doing "manufacturing difficulty work." At that same time, Walter Rogers was a group leader in the respondent's limit control department. He is no longer in the re- spondent's employ. We find that in April 1937 Mattes and Rogers were supervisory employees and Lockren's work was such as to iden- tify him with management. Mattes testified that, one morning in April 1937, a girl employee in the relay department on the fourth floor told him she had been both- ered the day before by Dahl's coming up to their floor and asking her to join Local 382. Mattes reported the incident to Lockren, who said, "Well, let's go down and see Connie." Rogers happened to be 12 Borge testified that Dahl asked him to join the Local, and that he replied he was very well satisfied with the way things were going Ile said he did not recall saying that the respondent would not tolerate union men and that Dahl would not be rehired when lay-off time came Later, Borge denied making the statement . The Trial Examiner was favorably impressed with Dahl 's demeanor on the witness stand, and we accept his testi- mony as being the more credible 81 Nelson testified that he might have said the respondent was paying for insurance and sick benefits voluntarily and could take them away at any time , but that he did not say this would be because of any union and he did not say the respondent didn't want the Union in the plant. The Trial Examiner believed Dahl to be the more credible witness. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visiting at that time on the fourth floor, overheard the conversation, and said he wanted to go along. The three men then agreed to visit Dahl that afternoon at his place of work. Mattes testified that the three of them decided to go together in order to impress Dahl. "It would make me think twice if three people came and told me not to do a thing, rather than if only one person came," Mattes testified. After lunch the three men went downstairs to the punch press de- partment and spoke to Dahl, interrupting him while at work at his machine. They told him they knew he had been upstairs in the relay department soliciting the employees on behalf of the- Local. They said he should "lay off of" the union and quit organizing around the plant. Dahl refused to quit, saying that the union was all the em- ployees had to protect themselves in their work. They then said that, if Dahl did not quit his activities, he would not be safe at home or on the street. Lockren said that if Dahl came up on the fourth floor again he would kick him back downstairs. Mattes said that, if "he didn't stay off (the floor), he would probably go off regardless." The argument continued for some time.34 Employee Judge heard part of it from his nearby machine. After Mattes, Lockren, and Rogers departed, Dahl asked his own foreman, Haugen, how it hap- pened that foremen from other departments could come down and take up his time. Haugen shrugged his shoulders but did not reply. After work that day, Dahl and Judge reported the incident to Superintendent Foster, who said he was sorry it had happened. Shortly thereafter, Mauseth, as organizer for Local No. 382, gave vice-president DuToit a written complaint that Lockren, Mattes and Rogers were "terrorizing the workers" in the plant, telling them if they "don't stop trying to organize a union they will take care of them by beating them up either in their homes or on the street." DuToit then called Lockren, Mattes and Rogers in to see him. He read them 'Mauseth's letter, and then said he did not want any trouble in the plant. He then reprimanded them mildly, but neither took nor threat- ened them with disciplinary action. In 1937 there were about 134 men working in the punch press de- partment. Of these, about 100 men operated punch press machines, about 9 men set dies and also operated presses, and the balance were foremen, clerks, helpers and others. The presses were of four kinds, i. e., #3, $t5, #74, and #7. The #3 press was the smallest and the #7 press was the largest, Foreman McCutcheon testified, and we find accordingly, that he would start a relatively inexperienced man on easy jobs on the #3 press and, as the man gained in experience and S! The findings as to the statements made by Mattes, Lockren, and Rogers are based largely upon Dahl's testimony . Mattes and Lockren denied parts of Dahl's testimony, and gave somewhat different versions of what occurred , but admitted that their rather extraor- dinary call on Dahl took place. In view of their partial admission and of the Trial Examiner 's estimate of Dahl as a witness , we credit his testimony. MIN'NE'APOLISLHONEYWELL REGULATOR COMPANY 287 dexterity, he would give him more difficult jobs on that press. As a man improved still more, and as openings became available, he would be promoted to the #5 press, then to the #74 press, and finally to the #7 press. The larger presses handled heavier jobs, had more expensive tools, and required greater care and skill than the smaller presses. The operators on the heavier presses received a correspond- ingly higher rate of pay. Dahl and 4 other men operated only #7 presses, and the remaining men operated the smaller presses, with-approximately 70 men work- ing on the #3 or smallest presses. It would thus appear that Dahl was among the best operators in the punch press department.35 Dahl was carried on the respondent's records as an operator and installer. Although he had transferred out of his department in September 1936 and did not return until January 28, 1937, his start- ing dates were indicated on the department records to be April 27, 1929, the date on which he started his employment with the respond- ent, and February 26, 1931. Presumably, the respondent used the later date as indicating Dahl's starting time in the department and as the basis for determining his seniority. On this basis, Dahl- had over two years more seniority than the other operators on the #7 presses and also exceeded many operators on the other presses in that respect. Nevertheless, Dahl was laid off on September 24, 1937. The other operators on #7 presses were laid dff later, i. e., on October 1, Octo- ber '29, and November 5 of that year. Some operators of the smaller presses were laid off before Dahl, but many of them were retained until October or even November, and one was not laid off at all. Of these men so retained, 15 had less seniority than Dahl. Haugen, Dahl's foreman in 1937, did not testify as to why Dahl was the first to be laid off in his group, or as to why men operating the smaller presses were kept on for substantial periods of time after Dahl's lay-off. This was in violation of the respondent's published rules on seniority and merit. We' therefore find, as did the Trial Examiner, that the lay-off on September 24, 1937, was caused by Dahl's union office and activities, and that, if it had not been for his union activity and if he had heeded the warnings to cease such activity, he would have been retained until at least November 5, 1937. In 1938 the respondent reinstated a large number of the employees in the department, including 24 operators who had less seniority than 35 The respondent submitted tabulations showing the piece-work earnings of Dahl and other operators , as an indication of relative merit. Although these have been considered, they are not conclusive ' because of variations in the piece-work rates, i e, as between night and day work, as between work on different presses , as between different jobs, and as between trial runs and other work. Foreman McCutcheon, himself , apparently paid little attention to the comparative piece-work earnings of the operators in determining, for examplerwhnch of them should first be recalled. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dahl. Among these was Wiemiller, who returned to his work on the #7 press on August 9. The other men apparently worked on the smaller presses. Later that year, however, many of these em- ployees were laid off again. In 1939 there were more reinstatements, including 35 operators with less seniority than Dahl. Dahl, how- ever, was not reinstated in either 1938 or 1939 and is still on the lay-off list. McCutcheon, who has been foreman since January 1, 1938, testified that he did not reinstate Dahl because he had lost his seniority rights when he voluntarily transferred out of the department in 1936, and that Dahl had been so informed by McCutcheon at that time. This, however, is refuted by the fact that McCutcheon's departmental records indicated Dalil's last starting date to be February 26, 1931, instead of January 1937, the date on which he returned to the punch press department. McCutcheon testified that he also considered the relative merits of the employees, and he submitted a tabulation of earnings in support thereof, on which Dahl appeared as having the lowest average hourly piece-work earnings. However, as we have already pointed out, this tabulation is subject to many qualifications and is not an accurate gauge of merit. McCutcheon apparently did not rely on it, because he did not rehire the men who had the highest earnings. Indeed, the first of the #7 press operators to be rehired by McCutcheon was Wiemiller, who had the lowest average piece-work earnings of the four operators other than Dahl. McCutcheon also testified that Dahl was a dissipated man and drank too much. Two instances were cited, one in 1933, and one in 1936 in the installation department. Dahl testified that in 1933 the man in charge of the die crib supplied "moonshine" to some of the boys, and that in 1936 it was his superior, Green, who was drunk and not he. In any event, Dahl had been reinstated in the punch press department since the last incident, so his drinking was apparently not then considered by the respondent as disqualifying Dahl for employment. We therefore find, as did the Trial Examiner, that the respondent discriminated against Dahl because of his union membership and activ- ity, not only in laying him off on September 24,1937, but also in failing to reinstate him on August 9, 1938, and thereafter. We further find that, by thus laying off and failing to reinstate Dahl, the respondent discriminated in regard to his hire and tenure of em- ployment and discouraged membership in labor organizations, and thereby, and by the above described acts and conduct of Borge, Nelson, Mattes, Lockren, and Rogers, interfered with, restrained, and co- erced its employees in the exercise of the rights guaranteed in Section 7 of the Act. MIN'NE'APOLIS-HONEYWELL REGULATOR COMPANY 289 c. Frank Judge Frank Judge started work with the respondent on August 10, 1936, as a punch press operator at 470 per hour. With the exception of a 2-month lay-off, he worked continuously thereafter until laid off on September 10, 1937, at which time he was receiving 55¢ per hour. Since 1928, Judge has belonged to a building trades union which has no connection with the respondent's employees. In August 1936 he applied for membership in Local No. 382, and on April 10, 1937, he was initiated into membership. He then paid one month's dues, and began wearing his union button in the,plant and talking to other employees in an attempt to make them more active members. On one occasion, after his working hours, he and Dahl delivered union application blanks to people in different departments throughout the building. As is found above, Foreman Haugen, in 1937, warned both men against such activities by giving them a copy of the respondent's printed Employ- ment Policy and directing their attention to the section which states that engaging in outside activities during working hours constitutes ground for discharge without notice. In August 1937, Judge, together with other employees, transferred his affiliation to the UERMWA and became an active member. As found above, Judge and Dahl argued with Nelson at a meeting of the Independent in February 1937, Nelson claiming a union was unnecessary at the plant, while Judge and Dahl insisted it was neces- sary. In addition, Judge had a personal talk with Nelson while both of them were waiting for this meeting to begin, in which Judge, not knowing that Nelson was there representing the company, indicated a pro-union attitude. Judge also overheard part of the conversation in which Lockren, Mattes, and Rogers argued with and threatened Dahl at the latter's bench. Judge urged Dahl to see Foster about this inci- dent and went with him to the conference with Foster. Judge was one of about 15 men operating the #5 presses, which ranked third in size to the #7 presses. Of these 15 men, Judge ranked eleventh in seniority, two men being his junior by 4 days, and 2 others by approximately 5 months. In the fall of 1937, 14 of these operators were laid off. The 4 men with less seniority than Judge were laid off either on the same date as Judge or prior thereto. On the #3 presses, 5 operators with less seniority than Judge were retained at work for 2 weeks after Judge was laid off. There was thus no patent disregard by the respondent of its seniority policy in laying Judge off, and Judge makes no complaint that this lay-off was improper. In 1938 the respondent recalled seven of the #5 press operators for varying periods of time, all of whom had greater seniority than Judge, and one of the #3 -press operators who had less seniority:, Thus, there again appears to have been no serious violation of sen- 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD iority, and Judge makes no claim that the respondent's failure to rein- state him during 1938 was improper. In the spring of 1939 the respondent reinstated 10 of the #5 press operators, including two, Urista and Urbik, who had less seniority than Judge. In the fall of 1939, the respondent also reinstated Wickberg and Smithson, both of whom were junior to Judge. The only men not reinstated, other than Judge, were Johnson and Ye, and the record does not disclose whether they desired reemployment. During 1939, Urista worked approximately 61/2 months, Urbik ap- proximately 31/2 months, Wickberg approximately 13/4 months, and Smithson 25 days. The respondent also reinstated 8 of the #3 press operators who had less seniority than Judge.36 These men worked for varying periods of time in 1939, ranging from 17 days to 7 months. All 12 of the operators so preferred over Judge were again laid off during that same year. The question-thus arises as to why the respondent discriminated against Judge in favor of the 12 junior operators. McCutcheon, who was foreman of the punch press department in 1939, testified that he recalled Urista, Urbik, Wickberg and Smithson in preference to Judge because of their ability as operators. "Mr. Judge wasn't a good punch press operator," McCutcheon testified. "He started out in the department in 1936 operating a #3 press, and his productive ability was low. I am informed that in 1937, at his request, he was moved on to a #5 press. In checking on it, the records show that he did not improve any. In order to verify my findings I have had the pay roll department prepare for me a list showing a comparison of the earnings and the ability of these various operators." This list is in evidence and tabulates the piece-work earnings in 1937 of the 15 operators of #5 presses. It shows an average piece-work earning of 69¢ per hour for Judge, 741/2¢ per hour for Wickberg, and 761/2¢ for Smithson. The averages of all the other operators are higher, the average for all the operators being 83.9¢ per hour. We have pointed out above the many qualifications to which such a tabu- lation is subject because of the many variations in rates of piece-work pay, and also the possible inaccuracy of such a tabulation as a gauge of merit. ha addition, Judge testified that his low earnings were due to the bad condition of his press, which he said "probably belonged to Noah's Ark" and was too old, too small, and too slow to let him handle the work as fast as the operators on the other presses.37 8' Stuth , E G Carlson, Ted Carlson, Sam Smith, Mueller , Snook, Martin, and Cain sr McCutcheon testified that Judge's press was "in good condition " and not "so old." However, Judge's testimony is that he worked on the defective press from January 1937 until July or August, when he was given a new press for a short time , and other evidence indicates that Judge' s over-all rating as an operator in 1936 was A, whereas his rating in 1937, when he claims to have had a defective press, was B. Furthermore, Judge testi- fied without contradiction that the press in question has since been taken out of active service. We therefore credit Judge's testimony. MINNEAPOLISLHONEYWEiLL REGULATOR COMPANY 291 It is thus not at all clear that Judge was a less able operator than the four men who were junior to him but who were nevertheless preferred over him in reinstatement. In any event, Judge could have been recalled to work on one of the #3 presses. As we have found above, the operator of a #3 press generally required less experience and skill than the operator of a #5 press, and Judge's assignment to the heavier machine is therefore an indication that he was more highly skilled than the operators of the smaller machines. Nevertheless, the respondent recalled eight of the #3 press operators who had less seniority than Judge, and no substantial explanation for this preference appears in the record. Although Judge was not an officer or committee member of any of the unions here involved, he nevertheless was active in their affairs. The Trial Examiner, after observing Judge on the witness stand, remarked in his Intermediate Report -that Judge appeared rather disputatious by nature; he displayed this trait in connection with his union activities by, for example, arguing with Nelson, accompany- ing Dahl to Foster's office, and engaging in other activities such as those which prompted the warning given him by Foreman Haugen. In view of Judge's activity as a union member and of the respondent's violation of its seniority policy in 1939 without any substantial showing of real difference in ability between the operators, we find, as did the Trial Examiner, that the respondent discriminated against Judge and in favor of the 12 operators with less seniority because of Judge's union membership and activity. By thus failing to reinstate Judge in 1939, the respondent discrimi- nated in regard to-his hire and tenure of employment, discouraged membership in labor organizations, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. d. Frank Flannigan Flannigan started work for the respondent on August 10, 1933, as a helper in the punch press department. After about 11/2 years of intermittent employment in this capacity, he became a punch press operator and worked on the #3 machine until October 1, 1937, when he was laid off. He has not since been reinstated. When Flannigan was asked at the hearing if he had joined a labor organization, he replied : "They tried to organize down there once . . . That was about in 1935 or 1936, and I was going to join then, but they went haywire, or something went wrong with it." As a result, Flannigan did not then join. In fact, he did not join a union at any time during his employment with the respondent. He could not even remember the name of the organization or the number of the local which the employees attempted to form in 1935 or 1936 450122-42-vol 33-20 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the respondent's list of punch press operators, Flannigan's seniority date is given as the time he started in the department, i. e., August 10, 1933, and also as July 1936. His order on the list was governed by the former date. If this be taken as correct, Flannigan ranked 17th in seniority out of the 72 operators on the #3 presses; 38 3 operators with less seniority were retained after llim in 1937,39 1 of whom was not laid off until 1938; 5 operators with less seniority were reinstated for temporary work in 1938; and 22 operators with less seniority were reinstated in 1939, 6 of whom were still working at the time of the hearing 40 If July 1936 is taken as Flannigan's correct seniority date, one operator with less seniority was retained after Flannigan in 1937; two operators with less seniority were re- instated temporarily in 1938; and eight with less seniority were reinstated in 1939. Flannigan was a nervous worker. He spoiled at least as much material as the average operator and broke more than his share of dies. His foreman called his attention to this breakage, but he re- plied that he was trying to increase his speed so' as to make $1 per hour. His breakage record was reported to Superintendent Foster, who called Flannigan to his office sometime in the summer of 1937. Foster said that he understood Flannigan was causing trouble in his department; that he was reckless; that "he had quite a bit of scrap"; and that he was breaking his tools because of inattention to his work. Flannigan did not say much at the time. He returned to his department and worked there until his lay-off on October 1, 1937. Since not more than three operators with less seniority were re- tained in 1937 after Flannigan was laid off, since his work had been the subject of complaint even before the lay-off, and since the record does not show him to have been a member of or active for a union at that time, we find, as did the Trial Examiner, that Flan- nigan was laid off on October 1, 1937, because of lack of work, after a consideration of his seniority and merit, and without regard to membership in or activity on behalf of any labor organization. On August 10, 1938, Flannigan secured employment as a punch press operator with another firm in Minneapolis. He has been em- ployed there ever since. Soon thereafter, he joined Local No. 1140 of the UERMWA, and he has since remained a member. On August 16, August 18, and September 5, 1938, the respondent reinstated a total of five of its #3 press operators who had less seniority than Flannigan.' Since this occurred at about the time, or shortly after, 39 These numbers may be somewhat inaccurate , since Foreman McCutcheon was not entirely certain at the hearing as to which operators worked on the #3 presses. 39 Blade, Bakken , and Young 4O A seventh man was retained in 1939 until he quit. 41 Pearson and Blade, Lord, Lachner, and Mueller MUITNEAPOLI&-HONEYWELL REGULATOR COMPANY 293 Flannigan joined a union, the question arises as to whether he was passed over because of his union membership. The same question is raised by the fact that 22 operators with less seniority were rein- stated on #3 presses in 1939. The record does not show that the respondent knew Flannigan joined Local No. 1140 in August 1938, and there is affirmative evi- dence that Flannigan was not recalled because of considerations of merit. Since August 1938, when he secured employment elsewhere, Flannigan has not applied to the respondent for reinstatement. We therefore agree with the Trial Examiner's finding that the record does not show that the respondent failed or refused to reinstate Flannigan because of his union membership and activity. e. Irwin John Farrell Irwin John Farrell was first hired by the respondent on October 14, 1935, and worked on the experimental motor assembly block. In December of that year he was laid off, but on March 4, 1936, he was rehired as a machine operator in the drill press department at 47 cents per hour. His pay rate was later increased to 56 cents per hour, before he was laid off on September 13, 1937. After this lay-off, he was reemployed on February 13, 1939, and has since worked continuously except for a 3-week lay-off from December 1939 into January 1940. He is now operating a drill press and a lathe in the machine shop. In 1936 Farrell joined Local No. 382. He became a member of the organizing committee, and solicited other employees for member- ship. In the summer of 1937 he transferred with other employees to Local No. 1140, and later to Local No. 1145 of the UERMWA. He is still active in the Union. As found above, Farrell presented a sample contract for his' department to his foreman, Lew Powers, in the spring of 1937. Powers discussed it with Superintendent Foster and later called a meeting of the employees, at which he announced that the pro- posed contract was satisfactory except for a few changes that had to be made in the department. He said the drill press department was to be divided into two groups, one of which, called 160, was to do the more skilled or difficult work, while the other group, known as 161, would do the simpler work and would be laid off first in case of a reduction in force. This division into groups was effected the next day, and Farrell, was placed in group 160. About 2 weeks thereafter, Foreman Powers told Farrell that if he persisted in his union activities he would be let out, and that he should tell employees Wicks and Pottsmith to stop their activi- ties. Wicks, Pottsmith, and Farrell were on the union organizing staff and were very active at that time in its behalf. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Powers left the respondent's employ in June 1937 and was re- placed by Foreman Long, who began laying people off in July 1937. On July 21 he laid off 15 people in group 161. In August, Farrell asked Long if he was going to be -laid off, saying that he wanted to know because there was a chance of getting other work at that time. Long said that Farrell would not be laid off, that he was listed as a steady employee with a good record, and that he had a job with the respondent. In August, Long laid off four more men from group 161 and six from group 160. On September 13 he laid off 8 in group 161 and 11 in group 160. Farrell was one of these 11 men.42 On September 24, three more men from group 160 were laid off, and on November 12 another three men from group 160 were laid off. On May 9, 1938, six more men were laid off, but the record is not clear as to the department or group in which they were employed. In July and August 1938, Long reemployed 7 men, and in November 1938 he laid off 10 men ; the departments and groups of these men are not identified in the record: Men were retained during this period in group 161, among whom were men with less seniority than Farrell.43 At one time in 1938, when Farrell came to the plant and asked for work, he talked to Foreman.Long. Long said he could not see that the union was doing the men any good or was improving their work- ing conditions.44 On February 13, 1939, Farrell was reinstated. He worked until December 15, 1939, when he was again laid off. On January 5, 1940, he was again reinstated and he has since worked continuously. In February 1940, employee Corniea 45 told Farrell that he had learned from the upstairs office the union committees of which Far- rell was a member, and warned him that if he persisted in his union 42 Long testified this lay-off was on September 10. However, Farrell 's personnel card gives September 13 as the date It is considered less likely to be in error. 43 This sentence is based on Farrell 's testimony . The respondent relied on a general statement by witness Long that : "They [Farrell and Tetzmann ] were laid off exactly in their turn , following' a seniority policy." Despite suggestions made by the Trial Examiner at the hearing , the respondent failed to produce any evidence supporting this statement In view of the respondent's failure to produce additional data which it could have produced if it had wished to do so , the statement of Long must be considered entitled to less weight than the evidence given on this point by Farrell 44 This finding is based on Farrell's testimony , which was denied by Long . The Trial Examiner, who heard both witnesses , found that Long did not appear to be a candid witness and at times indicated a tendency to justify himself rather than to tell the truth frankly. On the other hand , he found that Farrell testified with absolute cai.dor and appeared to be an honest witness. We therefore credit Farrell 's testimony. 45 The Trial Examiner referred to Corniea as an assistant foreman . The respondent contends that this characterization is erioneous and that Corniea has no supervisory func- tions . Corniea is a planning clerk , who is paid on a weekly rather than an hourly basis, whose salary is higher than the earnings of many of the production men, who has never been laid off in the respondent's periodic reductions of force, and who can and does on occasion give directions to press operators which the latter follow. We find that Corniea is superior in status to the press operators MINNEAPOLIS-HONEYWELL REGULATOR COMPANY 295 activities he was going to be let out again. He also told Farrell to give the same warning to Wicks and Pottsmith. Later that month, Corniea again told Farrell that he was going to be let out if he con- tinued his activities. This time Corniea also said that Farrell had been laid off in 1937 because of his union activities, and that he was reinstated only because Corniea had promised the management that Farrell would not continue in the union.46 In May or June 1940, Wilbur Knutson, the assistant foreman in the tool crib, told Farrell that he was afraid the'men would lose their vacations with pay if the Union organized the plant; that he was disappointed because the men were organizing; and that he could not understand it, because the pay was good and everything was "swell." 47 In laying Farrell off on September 13, 1937, the respondent dis- regarded the agreement it had made in the spring of that year,' which provided in part that employees in group 161 would be laid off before employees in group 160. The reason for this disregard of the agreement may perhaps be found in Farrell's uncontradicted testimony that all the men in group 160 were union members, whereas a majority of the men in group 161 were not. Additional considera- tions are Farrell's prominent role in -union affairs, the statements made to him by Powers, Long, Corniea, and Knutson, and the re- spondent's refusal to make available whatever data it had to support its claim that Farrell was laid off in order of seniority. We there- fore find, as did the Trial Examiner, that Farrell was laid off on September 13, 1937, and was not reinstated until February 13, 1939, because of his union membership and activities. The respondent thereby discriminated in regard to Farrell' s hire and tenure of em- ployment, discouraged membership in labor organizations, and inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. With respect to Farrell's lay-off from December 15, 1939, toJanu- ary 5, 1940, we are of the. opinion that the record does not contain sufficient evidence to support a finding of discrimination. The re- spondent's exceptions to the Trial Examiner's findings in this respect are therefore sustained. We find that the respondent did not lay Farrell off from December 15, 1939, to January 5, 1940, because of his union membership and activities. 46 This is based on Farrell's testimony, which is denied by Corniea. In view of the Trial Examiner's very favorable impression of Farrell as a witness, and in view of the fact that Farrell was in part corroborated by employee Thompson, we credit Farrell's testimony. 47 This is based on Farrell's testimony. Knutson at the hearing did not remember having made these statements. The Trial Examiner credited Farrell's testimony. 296 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD f. Emil Reinhard Emil Reinhard started work with the respondent on March 4, 1936, as a helper in the metal finishing department at 45 cents an hour. In that capacity he performed various operations required in the prepa- ration of the metal for plating or spraying. He was transferred from time to time to different jobs in that department, and thus became familiar with all the operations performed there, except barrel plat- ing and polishing. Reinhard was admittedly a good workman and his pay was gradually increased until it reached 62 cents an hour on May 3, 1937. On September 23, 1937, he was laid off. On October 11, 1938, he was reinstated, but on October 24, 1938, he was again laid off, and he has not since been reemployed by the respondent. Reinhard joined Local No. 382 in the summer of 1937 and became It shop steward for the night shift. One morning while he was at work his foreman, Victor Smith, asked him how the union meeting went the night before. Reinhard replied that he did not know be- cause he had not been at the meeting. Smith then smiled and walked away.48 The metal finishing department was divided into three groups, known as groups 310, 311, and 312. Reinhard's departmental sen- iorily.status does not appear from the record. He was part of group 310, which did metal plating and which consisted of some 37 or 38 inen. In this group Reinhard ranked 19th in seniority, the remain- der of the men being junior to him by 6 days to 16 months. On September 23, 1937, the respondent laid off Reinhard and three other men in group 310. Each of these three men had more seniority than Reinhard. However, 12 men in group 310 with less seniority than Reinhard were retained by the respondent thereafter for periods of time varying from 1 day to 23/4 months in length before they, too, were laid off. Of these 12 men, 10 were helpers, 1 was a helper-plater, and the 12th was a truck-pusher. Helpers in group 310 perform unskilled work, such as pushing trucks and hang- ing metal parts on frames or racks in preparation for dipping into the plating liquid. In view of the simplicity of this work and of Reinhard's varied experience in the department, we believe and find that he could easily have performed the work of any of the 12 men with less seniority who were retained by the respondent after Rein- hard was laid off. On February 1, 1938, one of the 12 men, Brooks, was reinstated. On March 8, 1938, another of the 12 men, Donald Johnson, was also reinstated. Both Brooks and Johnson have since been continuously as Smith testified that he did not believe he recalled this incident and that he did not think he ever talked to Reinhard about unions when Reinhard worked under his super- vision The Trial Examiner credited Reinhard s testimony MININE'APOLIS-HONEYWELL REGULATOR COMPANY 297 employed by the respondent. On April 7, 1938, 2 more of the 12 men were reinstated for approximately 3 months; after a short lay-off, these 2 men and still another were reinstated by the respondent in August 1938. In September the respondent reinstated 2 more of I he 12 men, thus making a total of 7 men in group 310 with less seniority than Reinhard who were recalled by the respondent before Reinhard to do work which the latter could easily have done. In August or September 1938 Reinhard secured employment else- where. About October 8 or 10, 1938, Reinhard received a card from the respondent calling him back to work, and a letter from the United inviting him to attend a union meeting. He accepted both invitations. On October 10, 1938, he joined the United, and on October 11 he actually returned to work for the respondent, leaving the other job he had obtained in the meantime. Reinhard paid his union dues and attended union meetings. On October 24, 1938, he was again laid off. His immediate superior, Neilson, when ques- tioned by Reinhard, gave no explanation for the lay-off beyond say- ing that he had been given orders to lay Reinhard off. Reinhard sought reinstatement several times. On one such occa- sion, in the spring of 1939, he was told by Foreman Smith that work was coming along pretty well and that Reinhard would soon be recalled. On another occasion, when Reinhard asked Smith for the "low-down" on why he was not being recalled, Smith first said that there just did not happen to be any work, but, when Reinhard pressed the question, Smith asked whether Reinhard had ever talked against the company or about the Union. Smith then added that Reinhard was supposed to have criticized the respondent, that he had said the plant should be organized, and that he had been going to union meetings and trying to organize the men. When Reinhard replied that he did not remember having said these things, Smith suggested that he see Employment Manager Hocking about getting back to work. _ Reinhard did so, and was told by Hocking that "you shoot your mouth off too much" and that it had been reported that Reinhard had said, "This is a hell of a company to work for." 4' Reinhard denied having made this remark, and added that if he had made it he was just "kidding." Hocking concluded by saying that he could do nothing for Reinhard and that Reinhard should see Super- intendent Foster. When Reinhard saw Foster, he again asked why he had not yet been reemployed by the respondent. Foster referred *" Krinke, mho was employed as a doorman near Rocking's office, testified that in April 1939 Reinhard came into the employment office about once or twice a week and that on one occasion Krmke heard Reinhard say, "This is a hell of a company to work for." Krinke further testified that he reported this remark to Hocking the same day . Hocking testified at the hearing to having received this report from Krinke. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to rumors that Reinhard had been "talking against the company," and also said that Reinhard had been going to the union meeting hall and had been making remarks against the respondent. Foster then added : "We like to have people working for this company that are for the company, not against it." 50 The Trial Examiner found that the respondent had violated its seniority policy in preferring men with less seniority than Reinhard, but that the question of whether this discrimination was due to Reinhard's union activities was "a difficult issue not clearly deter- mined by the evidence"; he recommended that the complaint be dismissed as to Reinhard, because of the "comparatively small amount and uncertain character" of his union activity. The quantum of an employee's union activity is not decisive of whether or not his employer has engaged in discrimination. In any event, Reinhard was a shop steward for Local No. 382 and could hardly be called an inactive member, either of the Local or, subsequently, of the United. Regardless, however, of the actual extent of Reinhard's union activity, his version of the conversations with Foster, Hocking, and Smith, which we have accepted, indicates that at least the respondent regarded his union activities as of some importance. The statements with respect to the respondent which Reinhard was accused of mak- ing were denied by him in his conversations with Foster, Hocking, and Smith ; if he did make them, as we are inclined to think he did, they were not in.our opinion such as, taken alone, would normally be regarded as serious enough to warrant the discharge of the em- ployee who made them. Taken in connection with his union activi- ties, however, Reinhard's remarks had a meaning which we think explains the respondent's objections to the remarks, as voiced by Foster, Hocking,, and Smith. The Union's exceptions to the Trial Examiner's findings in this respect are therefore sustained. We find that the respondent laid Reinhard off on September 23, 1937, did not reinstate him until October 11, 1938, and again laid him off on October 24, 1938, because of his union membership and activities. The respondent thereby discriminated in regard to Reinhard's hire and tenure of employment, discouraged membership in labor organ- izations, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. so Foster , Hocking, and Smith gave somenhat different versions of their conversations with Reinhard than did Reinhard, but did not deny that these conversations took place. To the extent to which he stated and relied upon these conversations , the Trial Ex- aminer credited Reinhard 's testimony We therefore accept Reinhard 's version of the conversations. Mn N4EAPOLIS-HONEYWELL REG'ULATO'R COMPANY 299 3. The 1938 lay-offs a. Herbert Tetzmann Herbert Tetzmann started work with the respondent on Septem- ber 5, 1933, as an operator in the machine shop. During most of his employment with the respondent, he operated a milling machine. Except for occasional lay-offs, he was employed until September 13, 1937, when he was laid off for almost a year. He was reinstated on August 8, 1938, and worked until November 4, 1938, when he was again laid off. He has not since been recalled to work. His earnings while with the respondent were increased from 40 cents an hour to as high as 58 cents an hour. Tetzmann joined Local No. 382 in the fall of 1936. ' He trans- ferred- to Local No. 1140 of the United in August 1937, and subse- quently to Local No. 1145. In 1938 he was a member of the union organizing committee and spoke to some of the respondent's em- ployees about joining the United, but there is no showing of any extensive union activity on his part. Foreman Long considered Tetzmann an average milling machine operator, but a lower-than-average drill press operator. Tetzmann himself testified that he was just average. Since Tetzmann was laid off, the milling machines have been operated only intermittently by employees Hanson, Sandgren, Carlson, and Olson. One or two of these men have worked primarily on drill presses and only part of, the time on milling machines. Tetzmann testified that men with less seniority were retained in his department after he was laid off, but his testimony in this respect was general and vague in nature, and he could give the name of only one such man, Pottsmith. Foreman Long testified that Tetzmann was laid off at- exactly the time at which he should have been laid off, in view of his seniority status. This statement was not supported by any basic data as to the names and seniority dates of other men in the department, despite a suggestion by the Trial Examiner that such data be produced by the respondent in order to give a more accurate picture. However, Long did testify more specifically that Hanson, Sandgren, and Carlson were older in point of service than Tetzmann. While the respondent's failure to produce whatever data it had tends to discount Long's testimony, it cannot take the place of affirmative evidence more substantial than Tetzmann's that seniority was disregarded. After he was laid off, Tetzmann applied for reinstatement several times. On one occasion he was told by Employment Manager Hock- 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing that he had caused a lot of trouble in the plant and would there- fore never be reemployed ; on another occasion Vice-President DuToit told him that there was "something up against him" in his depart- ment. While these remarks raise some suspicion as to what was meant, we cannot be sure that they referred to Tetzmann 's union ac- tivities. In 1939, however, Tetzmann was called in by Hocking and was offered a temporary job that would last for "possibly a few weeks." Tetzmann then had W. P. A. employment as a watchman and fireman, and told Hocking that he was afraid that if he left W. P. A. and later tried to return he would be given heavier work, which his physical condition made him incapable of performing. Tetzmann did not accept the respondent's offer of temporary employ- ment and has never since applied for reinstatement. The Trial Examiner found that Tetzmann was laid off on Novem- ber 4, 1938, and was thereafter refused reinstatement because of his union membership and activity , and that he was under no obligation to accept temporary employment when the respondent offered it. We are not convinced , however, that the evidence warrants a finding that Tetzmann was laid off in November 1938 in disregard of his seniority. We are impressed further by the fact that the respondent, in August 1938, after Tetzmann had joined and assisted Local No. 382 and Local No. 1140 of the United , reinstated Tetzmann for a period of some 3 months , and that it again offered him employment, although only on a temporary basis, in 1939 . In view of these facts, of Tetzmann's admittedly mediocre quality as a workman , and of the respondent's only intermittent operation of its milling machines after Tetzmann's lay-off, we are not convinced that the respondent 's treat- ment of Tetzmann was discriminatory . The respondent 's exceptions to the Intermediate Report in this respect are hereby sustained. We find that the respondent did not lay Tetzmann off on November 4, 1938, and thereafter refuse to reinstate him because of his union membership and activities. b. Clifford Anderson Clifford Anderson started work for the respondent on, February 18, 1929. He was transferred to the drill press department on July 15, 1929, and he has been an operator in that department since August 12, 1931, except for occasional lay-offs. His pay started at 45 cents an hour, and fell as low as 36 cents an hour in July 1933, but rose to 60 cents an hour on May 3, 1937. He was receiving that rate when he was laid off on November 4, 1938. He has not since been recalled. Anderson joined Local No. 1140 of the United in September 1938, became a member of the organizing committee on September 10, and solicited members among the respondent's employees during Septem- MD4NIEAPOLIS-HM`EYWELL REGULATOR COMPANY 301 ber and October. He wore his union button in the plant and told Foreman Long of his union membership. Shortly before he was laid off in 1938; Anderson was working with an apprentice group and was receiving 60 cents an hour. Corniea, whose status as an . employee we have discussed above,51 said to Anderson that if he were working in a union shop he would not be getting more than 40 cents an hour for that kind of work. Corniea then added that he did not see why Anderson wanted to keep on going to union meetings. When Anderson asked why he should stop going to meetings, Corniea said that he (Corniea) had gotten a raise and had been talking against unions ever since.52 Anderson applied for reinstatement several times. On one oc- casion in April 1939, Employment Manager Hocking said that he did not think Anderson would ever be reeemployed because he had caused trouble. In May 1939, Foremali Long told Anderson that he did not think Anderson was ever coming back because he had caused too much trouble. When Anderson replied that he knew it was because lie had joined a union, Long said that the Union would never do him any good and that the respondent would never recognize a bunch of reds.53 There is evidence that men with less seniority than Anderson were retained after he had been laid off. Foreman Long testified that Anderson was laid off on the basis of seniority, but he admitted that there had been "some argument" as to whether that was so, and the respondent produced no specific data in support of Long's testi- mony.54 Long also testified that he did not want or call Anderson back, because he had had trouble in rerating Anderson and because Anderson became bitter over his first lay-off. In addition, Long stated that Anderson lacked the spirit of cooperation required in group piece-work, although Long also said two or three times during the course of the hearing that Anderson was a good workman. So far as the record shows, the only "trouble" ever caused by Ander- son consisted of his union activities and his normal efforts to recover his job. In view of the respondent's disregard of seniority in laying Anderson off shortly after he joined Local No. 1140, and in view of the remarks made to him by Corniea, Hocking, and Long, we find, as did 51 See footnote 45, above. 52 Corniea testified that he had no recollection of making any such statements. In view of the accumulation of evidence of anti-union iemarks made by Corniea, w e credit Anderson's testimony , as did the Trial Examiner. 13 These findings are based on Anderson's testimony Foreman Long denied having made the statements attributed to him. In view of the Tilal Examiner's unfavorable impression of Long as a witness , we credit Anderson's testimony, as did the Trial Examiner 54 As in the Farrell and Tetzmann cases , Long's testimony that lie followed seniority was general in nature , and the respondent refused to supply whatever supporting data it had. In the Tetzmann case, however , we have found that the affirmative evidence of violation of seniority is not substantial . In the Anderson case, as in the Farrell case, the affirmative evidence that seniority was disregarded is substantial and convincing. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Trial Examiner, that the respondent laid Anderson off on Novem- ber 4, 1938, and thereafter failed and refused to reinstate him because of his union membership and activity. The respondent thereby dis- criminated in regard to Anderson's hire and tenure of employment, discouraged membership in labor organizations, and interfered with, restrained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. c. Carl Nord Carl Nord started work for the respondent on June 4, 1929, at 42 cents an hour. His rate of pay thereafter went as low as 36 cents an hour, but rose steadily after 1933 and reached 55 cents an hour on May 3, 1937. His employment was as a punch press operator. He was laid off on November 19, 1937, was reinstated on April 27, 1938, and was again laid off on November 10, 1938. He has not since been reinstated. Nord joined Local No. 382 in December 1937, during a lay-off by the respondent and while he was employed elsewhere. He later went over to Local No. 1140 of the United. On April 27, 1938, he returned to the respondent and worked until laid off on November 10, 1938. The respondent contends this lay-off was in accord with seniority, and the record supports this contention. About January 1, 1939, Nord, with the help of Hocking, obtained employment elsewhere. Sometime thereafter, in 1939, Nord applied to Hocking for reemployment and was told that the work at the re- spondent's plant was only temporary. Hocking advised Nord to stay where he was because the work was more permanent. When Nord was laid off on November 19,1937, he had not yet joined a union. There is no evidence that he was particularly active after he had joined in December 1937, and the respondent did thereafter reinstate him in April 1938 for a period of some 61/2 months. There is no substantial showing in the record that his subsequent lay-off on November 10, 1938, or his failure to be reinstated thereafter was due to his union membership and activity. We find, as did the Trial Ex- aminer, that the respondent did not lay Nord off on November 10, 1938, and thereafter fail and refuse to reinstate him because of his union membership and activity. 4. The 1939-1940 lay-offs a. Lester LeVoir Lester LeVoir started work with the respondent on August 14, 1936, as a machine helper at 50 cents an hour. He continued in this capac- ity, with occasional lay-offs and with promotions that raised his pay to 60 cents an hour, until January 16, 1940. He was then transferred to NI121,'VE'APOLSSLHO1\EYWE11 REGULATOR COMPANY 303 the stores department and worked as a trucker handling raw stock at 60 cents an hour. He was laid off on May 14, 1940, but was rehired in the same department on May 28, 1940, and has worked there ever since. LeVoir joined the Union in January 1940 and has been an active member. He became a shop steward and assumed the duties of col- lecting union dues and handling grievances. He -wore his union button in the plant continually, and told the head of his department, Mills, that he was a union man. In March 1940, Mills warned LeVoir to stay in his own department and to stop talking union during working hours. When LeVoir was laid off in May 1940, the other people in his group were Stone, the group leader, who had about the same amount of seniority, and Kruse, who had less seniority. Mills testified that straight seniority means little to him, and that he kept Kruse on and laid LeVoir off because the former had been a foreman, was an older man, was more dependable, and was more interested in the welfare of the men. Mills also testified that he knew other men who were union members, and that this fact had nothing to'do with his selecting the employees to be laid off. We find, as did the Trial Examiner, that the respondent did not lay LeVoir off from May 14 to May 28, 1940, because of his union membership and activity. b. Edward Kennedy Edward Kennedy started work for the respondent on October 26, 1925, as a tubulator in the glass department. He started at 45 cents an hour, but his pay was later increased. Except for two lay-offs, one of them a long one, he worked in that department until July 17, 1939. In February 1940 he was reemployed, and on May 17, 1940, he was again laid off and he has not since been rehired. About July 10, 1939, the rates of pay for employees in the glass department were "reduced. Later that week, about two-thirds or three-quarters of the employees,in the department met with. union officials to discuss the cut and union membership. Almost all of them, including Kennedy, joined the Union that night. The follow- ing Monday, July 17, 1939, Kennedy and three other men in the glass department were laid off. Kennedy and one other of the men had attended the union meeting the week before and had joined; the other two had not. However, all except Kennedy were reinstated within approximately 2 weeks. About a week after the union meeting above described, Foreman Lehman spoke to employee Vollmar with respect to the quantity of his production, and remarked that the respondent was still looking 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the leader of the men who had joined the Union. Within a month thereafter, in the course of another conversation with Fore- man Lehman, Vollmar asked if there was any danger of his being laid off. Lehman asked if he meant because of union activities, to which Vollmar replied affirmatively. Lehman then said that, if the employees had forgotten it (viz the Union), the respondent would forget it by Christmas.65 Lehman testified that he laid Kennedy off because of lack of work and because Kennedy was not able to make as efficiently as others the particular kind of glass tubing for which Lehman was getting calls. However, men with less seniority than Kennedy were retained after Kennedy was laid off or were recalled to work before Kennedy, without any substantial showing in the record that the men so pre- ferred were superior to Kennedy in ability. Indeed, Foreman Leh- man admitted at the hearing that Kennedy was not "so much worse" than the others and that in 1940 Kennedy came "very close" to the others in efficiency. In view of the mass movement towards the Union by employees in the glass department in July 1939, the re- spondent's efforts to find the leader of the movement, and the disre- gard of seniority without apparent reason, we find, as did the Trial Examiner, that Kennedy was laid off on July 17, 1939, and was not reinstated until February 1940, because of his union membership and activity and because of his attempt at concerted action with his fellow employees in the glass department. The respondent thereby discriminated in regard to Kennedy's hire and tenure of employment, discouraged membership in the Union, and interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed in Section 7 of the Act. As we have pointed out above, Kennedy was rehired in February 1940, but was again laid off on May 17, 1940 and has not since been reemployed. The Trial Examiner has found that Kennedy's lay-off on May 17, 1940, was also due to his union membership and activity. Kennedy, himself, testified at the hearing that he has no complaint as to his lay-off in 1940, that there was then no work available, and that no one else had been called in by the respondent to do his work. In addition, there is general but uncontroverted testimony that the lay-offs in 1940 were made strictly in accord with seniority. The record does not in our opinion support the Trial Examiner's findings with respect to the 1940 lay-off, and the exceptions of the respondent to the Trial Examiner's findings in this respect are sustained. We find that the respondent did not lay Kennedy off on May 17, 1940, because of his union membership and activity. fib These findings are based on Vollmar 's testimony . Lehman testified be had no recol- lection of the first conversation, and he denied the second conversation . Lehman, however, himself vouched for the integrity of Vollmar , whom he has known a long time We credit Vollmar's testimony , as did the Trial Examiner. MLNIN)E'APOLIS-HONEYWELL REG'ULAT'OR COMPANY c. Rose Kush 305 Rose Kush started work with the respondent on September 5, 1933, on a bench assembly line. Since 1936 she has worked in the coil winding department. She began at 30 cents an hour, but was paid at the rate of 40 cents an hour from May 1937 until she was laid off on April 19, 1940. Kush became quite excited about her lay-off, told Foreman Overholt that she was the only support -for her family, and told his assistant that she thought what was needed was a good union. Kush joined the Union on April 20, 1940, and at once complained of her being laid off when employees with less seniority were being retained. Kush was reemployed by the respondent on May 7, •1940, but was again laid off 3 days later on May 10, the day after the meeting at which Charles Nelson presided.56 She was reinstated to her former position on May 21, 1940, and has since been continuously employed by the respondent. Kush was not 'a member of the Union when she was first laid off on April 19, 1940. She became very active once she joined on April 20, but there is no showing in the record that this activity extended her lay-off, or that the reason for her lay-off on April 19 ceased to exist at any time before May 7. By May 10, 1940, when Kush was again laid off, she had become a very active union member. However, she was then laid off for only a few days, and Foreman Overholt testified that Kush and other employees were laid off on that day because of lack of work. In view of the Trial Examiner's favorable impression of Overholt as a witness, we credit his testimony. We find, as did the Trial Examiner, that the respondent did not lay Kush off on April 19, 1940, and again on May 10, 1940, because of her union membership and activity. d. Realm I. Reinhard Reahn Reinhard applied for work with the respondent in 1935 under her own name, but was unsuccessful. In 1936 she applied under the name of Marion Iveanell Wells and secured employment. She thereafter worked continuously for the respondent, largely in the repair department. However, she also worked temporarily in other departments. She received four raises in pay before she was discharged on July 15, 1940, and was complimented by her foremen on her efficiency. Her ability as an employee was not challenged at the hearing. m Tbis meeting is described in our discussion under The Activities of Charles A. Nelson," above. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In December 1936, when payroll tax records were established by the respondent, Reinhard gave her name to the Social Security Board as Reahn Iveanell Wells-Brodt. The respondent wrote a letter for her to the Social Security Board'on December 8, 1936, explaining that she was employed under the name of Marion Iveanell Wells but wished to be registered under the name of Reahn Iveanell Wells-Brodt. No question as to the difference in names was then raised by the respondent. In or before June 1939, Reinhard told her foreman, Corrow, that her name was not Wells and that she was married to Emil Reinhard, who had worked for the respondent and had been laid off. She also told Corrow that they needed money and asked him to help get her husband reinstated. Corrow undertook to do what he could for her husband, but-said and did nothing about the difference in her names. She continued to work under her assumed name. In June 1940, a personnel questionnaire was circulated among all the respondent's employees for the purpose of obtaining certain in- formation about their identities, citizenship, and other matters. Be- cause Reinhard, like many others, believed this to be a government questionnaire, she became worried as to what name to use and again consulted her foreman. He advised her to see Paul Hake, a methods man and an ex-chairman of the Minnreg Veterans Association. She did so, and was told by Hake that he would see the respondent's attorney, Biron, and straighten it out. A little later that day, Hake reported to Reinhard that it was all cleared up and that she should use her correct name from then on. She did so. Soon thereafter in June 1940, she was called to the office to cor- rect an application she had made for a loan. She made the correc- tion and mentioned her change of name. The office clerk then had her make out another application under her correct name, and the two applications were clipped together. On June 28, 1940, she received a company check for the loan, on which her correct name appeared as the payee. On July 3, 1940, she received her next pay check from the respondent, on which she was again designated by her correct name. She then left on her vacation. In the meantime, on June 28, Employment Manager Hocking had learned of the difference in names and decided that Reinhard should be discharged. Both Corrow and Hake disagreed with Hocking's decision and appealed it to Vice-President DuToit. Biron, who was also called in, supported Hocking on the ground that there was a company rule requiring the discharge of any employee who made any misrepresentation in connection with obtaining employment with the respondent. Reinhard, he said, had misrepresented her marital status when she indicated on her employment application that she MMITNTE'APOLIS-HONEYWELL REGULATOR COMPANY - 307 was single. DuToit agreed, and Reinhard was discharged on July 15, 1940, the day her vacation ended. -The rule thus invoked by Hocking and Biron was part of a printed list of rules distributed by the respondent. This was "a list of offenses for which an employee may be discharged without further notice." 57 The list contains 20 items, some of which have subdivisions. Among these items are : "Violation of any law .. . Violation of any safety rule of the Company . . . Being in a physi- cal condition which prevents the satisfactory performance of duties assigned . . . The possession of habits that make him or her objec- tionable to other employees or to the management ... Sleeping while on duty . . . Engaging in activities, outside of regularly as- signed duties, during working hours." Under the heading, "Viola- tion of any law," appears the following subdivision: "(f) Falsifying to obtain employment, or falsifying for the purpose of misleading those in charge." Hocking testified that it was an established policy of the respondent to discharge anyone who falsified in applying for employment, that one girl who had been discovered in such falsification had been dis- charged in 1937, and that another girl resigned when she learned that the respondent had discovered falsification in connection with her application for employment. On the other hand, Vice-President DuToit testified that enforcement of the rules was discretionary and not mandatory with the respondent.68 By its very nature, the list suggests that enforcement of the rules is discretionary. It would be extraordinary, indeed, if the respondent has discharged every em- ployee who has, violated "any law" or "any safety rule" in the plant. The record shows that men have been under the influence of liquor in the plant or have engaged in extracurricular activities dur- ing working hours without being discharged. In the present case, itself, the respondent was informed in 1936 and again in 1939 of Reinhard's correct name and learned in 1939 that she was married, but the rule which the respondent now contends justifies her discharge was not invoked until July 1940. In addition, DuToit testified that Reinhard had applied for reinstatement and had been rejected, and that she would never be reemployed by the respondent. Reinhard joined the Union in April 1940 and became very active.. She was made a member of a committee for girls in her department, the purpose of which was to organize that 'department. She talked to every girl in her department and to girls in other departments, and succeeded in getting several to join. She wore her union pin 67 Italics supplied. M DuToit also testified that the policy of discharging employees found to have falsified in obtaining employment has been rigidly followed . Upon further examination, however, he was unable to remember any specific cases in which the rule has been enforced. 450122-42-vol. 33-21 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the plant, and became one of three auditors for the Union. At the time of her discharge, the respondent had known for some time that her husband, Emil Reinhard, was named in the Board's complaint as an employee against whom the respondent had allegedly discrim- inated. There can be no doubt that Reinhard misrepresented in her applica- tion for employment, and that this constituted grounds for discharge under the respondent's rules. We are not convinced, however, that this was the actual grounds for her discharge. On the contrary, the respondent's long inaction after it had learned of Reinhard's mis- representation, followed by its summary dismissal of Reinhard shortly after she became a very active union member and officer, convinces us that the real reason for her discharge was her union membership and activity. We find, as did the Trial Examiner, that the respondent discharged Reahn I. Reinhard on July 15, 1940, because of her union membership and activity, and that it thereby discriminated in regard to her hire and tenure of employment, discouraged membership in the Union, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the-respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take affirmative action designed to effectuate the policies of the Act. We have found that the respondent discharged, laid off, or re- fused to reinstate Evelyn Knutson, Conrad Dahl, Frank Judge, Irwin John Farrell, Emil Reinhard, Clifford Anderson, Edward Kennedy, and Reahn I. Reinhard because of their union member- ship and activities. To effectuate the policies of the Act, we shall order the respondent to offer Knutson, Dahl, Judge, Anderson, and both Reinhards immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of pay they have suffered by reason of the respondent's discrimination by payment to each• of them of a sum equal to the MININTEAPOLIS-HONEYWELL REGULATOR COMPANY 309' amount he or she normally would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, less his or her net earnings during such period .511 In accordance with, our practice, the period from the date of the Intermediate Report to the date of the Order herein will be excluded in com- puting the back pay of Emil Reinhard, since the Trial Examiner found that his lay-off and failure to receive reinstatement were not discriminatory and recommended dismissal of the complaint as to him.°0 We shall also order the respondent to make Farrell and Kennedy whole for any loss of pay they have suffered by reason of their lay-offs by payment to each of them of a sum equal to the amount which he normally would have earned as wages during the period of the discriminatory lay-off, less his net earnings during such period. The allegations of the complaint with respect to Frank Flannigan, Herbert Tetzmann, Carl Nord, Lester LeVoir, and Rose Kush will be dismissed. 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. United Electrical, Radio & Machine Workers of America, Locals No. 1140 and No. 1145; International Association of Machinists, Local No. 382; Steel and Metal Workers Industrial Union; Twin Cities Tool and Die Makers Club; the Tool Room Committee; and Minneapolis-Honeywell Independent Union are or were labor or- ganizations, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Evelyn Knutson, Conrad Dahl, Frank Judge, Irwin John Farrell, Emil Reinhard, Clifford Anderson, Edward Kennedy, and Realm I. Reinhard, and thereby discouraging membership in United Electrical, Radio & Machine Workers of America, Local No. 1145, or its predecessors, 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 "By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent , which would not have been incurred but for the unlawful discrimination and the consequent necessity of seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B 440 Monies received for work performed upon Federal , State, county , municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N L R B 311 U »S 7. w Matter of Arma Engineering Company and Committee for Industrial Organization, 14 N L. R B 736, and cases therein cited at page 781. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. By discharging or laying off Frank Flannigan, Herbert Tetz-- mann, Carl Nord, Lester LeVoir, and Rose Kush, the respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) 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 Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Minneapolis-Honeywell Regulator Company, Minneap- olis, Minnesota, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Electrical, Radio & Ma- chine Workers of America, Local No. 1145, or in any other labor organization of its employees, by discriminating in regard to hire, tenure, terms, or conditions of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective 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 Evelyn Knutson, Conrad Dahl, Frank Judge, Emil Reinhard, Clifford Anderson, and Reahn I. Reinhard immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges ; (b) Make whole Evelyn Knutson, Conrad Dahl, Frank Judge, Emil Reinhard, Clifford Anderson, and Realm. I. Reinhard for any loss of pay they have suffered by reason of the respondent's dis- crimination, by paying to Emil Reinhard a sum of money equal to that which he would normally have earned as wages during the period from the date of his lay-off to the date of the Intermediate Report herein and during the period from the date of this Order to the date of the respondent's offer of reinstatement, less his net earn- ings during said periods, and by paying to each of the others a sum of money equal to that which he or she would normally have earned MINNEAPOLIS-HONEYWELL REGULATOR COMPANY 311 as wages during the period from the date of the respondent's dis- crimination to the date of the respondent's offer of reinstatement, less his or her net earnings during such period; (c) Make whole Irwin John Farrell and Edward Kennedy for any loss of pay they have suffered by reason of the respondent's discriminatory actions, by paying to each of them a sum of money equal to that which he would normally have earned as wages during the period from the date he was discriminatorily laid off by the respondent to the date of his reinstatement by the respondent, less his net earnings during said period; (d) Post immediately in conspicuous places throughout its plant in Minneapolis, Minnesota, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order.; and (3) that the respondent's employees are free to become or remain members of United Electrical, Radio & Machine Workers of America, Local No. 1145, or of any other labor organ- ization, and that the respondent will not discriminate against any employee because of membership of activity in any such organiza- tion ; (e) Notify the Regional ,Director for the Eighteenth Region in writing within ten (10) days from the date of this Order what steps' the respondent has taken to comply therewith. AND IT IS FURTHER ORDERED ,that the allegations of the complaint with respect to Frank Flannigan, Herbert Tetzmann, Carl Nord, Lester LeVoir, and Rose Kush be, and they hereby are, dismissed.