Chamberlain Corp.

In the Matter of CHAMBERLAIN CORPORATION AND AMERICAN W RINGER COMPANY, INC. and UNITED RUBBER WORKERS OF, AMERICA, LOCAL No. 177, AFFILIATED WITH THE C. I. O. Case No. C-1786.-Decided Deceniber 12, 1941 Jurisdiction : washing-machine wringer manufacturing industry. Unfair Labor Practices Interfei ence, Restraint, and Coercion. false or reckless imputation of improper, action to -union members coupled with thi eat to close down plant, and derogatory statements concerning the union by supervisory employees held violative of Section 8 (1) Discrimination: lay-off of three union officers while men with less, seniority, retained ; discharge of two union officers and an active union member not justified where it is apparent that the reason given for such discharge is a mere pretext to enable respondent to rid itself of union adherents; dis- criminatory assignment of work in the plant, charges of, dismissed Remedial Orders : back pay awarded to those employees discriminatorily laid off and later reinstated ; reinstatement and back pay ordered as to those employees discriminatorily discharged. Practice and Procedure : complaint dismissed as to parent company of respond- ent where no indication on present record that order against parent is neces- sary in order to insure effectiveness of order made against respondent. Mr. Lee Loevvnger, for the Board. Swisher, Swisher cC Cohrt, by Mr. B. F. Swisher of Waterloo,, Iowa, for the respondents. Mr. Leonard G. Berg, of Eau Claire, Wis., for the Union. Mary M. Persinger, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges 1 duly filed by United Rubber Workers of America, Local No. 177, affiliated with the C. I. O., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighteenth Region The original charge was filed Maich 18 , a supplemental charge May 20, and an amended charge September 30, 1940 37 N L. It B., No. 83 499 .500 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD (Minneapolis , Minnesota ), issued its complaint dated September 30, 1940, against Chamberlain Corporation , herein called the respond- ent, and American Wringer Company , Inc., Waterloo, Iowa, herein jointly called the respondents , alleging that they had engaged in and -were 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. Copies of the complaint and notice of hearing thereon were .duly served upon the respondents and the Union. The complaint, as amended at the hearing , alleged in substance that the respondents (1) on certain named dates laid off or dis- charged J. E. Hartson,2 Richard Elder , Rumbly B. Tanner, Buryl 'Trebil, and Leo Kramer, herein referred to collectively as the charg- =ing employees ; and have since refused to reemploy Tanner, Trebil, and Kramer , because they joined and assisted the Union and engaged :in concerted activities for the purpose of collective bargaining and .other mutual aid and protection ; (2) discriminated against the ,charging employees except Richard Elder, since on or before Febru- ary 4, 1940, by giving "less remunerative work than was formerly' given to said persons and each of them, and less remunerative work than was given to other employees in said Plant "; ( 3) advised, urged, threatened, and warned their employees to refrain from becoming or remaining members of the Union or from assisting the Union in .any way; and (4) by the foregoing and by other acts , interfered with, restrained , and coerced their employees in the exercise of the -rights guaranteed in Section 7 of the Act. The respondents filed answers on October 10, 1940, in which they in substance denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held from October 21 to 25, 1940, :at Waterloo, Iowa, before Charles E . Persons , the Trial Examiner .duly designated by the Chief Trial Examiner. The Board and the respondents were represented by- counsel , and the Union by a representative ; all 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 . At the be- ginning of the hearing, American Wringer Company, Inc., filed a .motion that the complaint be withdrawn or dismissed as to it. This motion was denied. The respondent filed a "Motion For Separate Trial," for reasons stated. This motion was also denied. These -motions were renewed and again denied at the conclusion of the Board's presentation of its case. At the conclusion of the hearing, 2 Hartson 's name is carried on the respondent's records as Jacey E Hartson , and he was .designated as James Rartson on court records intioduced in the record as Respondent ,Exhibit No 8 CHAMBERLAIN CORPORATION 501 the motions were again renewed, were then taken under, advisement by the Trial Examiner, and were denied in his'Intermediate Report. At the conclusion of the hearing counsel for the Board moved to amend paragraph 9 of the complaint by dismissing such portion of it as referred to Richard Elder.' This motion was granted. He also moved to conform the pleadings to the proof in such "imma- terial variances as names and dates." The motion was granted without objection. During the course of the hearing the Trial Examiner made various rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that, except as noted below, no prejudicial errors were committed. The rulings are hereby affirmed, with the exception noted below. A brief was filed with the Trial Examiner by the respondents. Thereafter, the Trial Examiner issued his Intermediate Report, dated January 10, 1941, copies of which were duly served upon all parties. The Trial -Examiner found that the respondents had en- gaged in and were engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondents cease and desist therefrom, and take certain affirmative action. He further recommended that the complaint be dismissed insofar as it alleged that the respondents discriminated in the assignment of jobs. On February 6 and February 19, 1941, respectively, the respondents filed exceptions to the Intermediate Report and a brief in support of such exceptions. No request for permission to argue orally before the 'Board was received from any of the parties. The Board has considered the exceptions to the Intermediate Report 'and the briefs filed by the respondents, and insofar as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the, case the Board makes the following : FINDINGS OF FACT. I. THE BUSINESS OF THE RESPONDENTS Chamberlain Corporation is an Iowa Corporation with its principal office and place of business at Waterloo, Iowa. It is engaged in the production of washing-machine wringers which it sells to manufac- turers of washing machines and to wholesale distributors. The ap- proximate value of its purchases from October 1, 1939 to September 4 Section 9 of the complaint alleged in substance that the respondents discriminated against the charging employees by giving "less iemunerative work than was formerly given to said persons and each of them, and less remunerative work than was given to other employees in said plant " 433257-42-voL 37-33 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 30, 1940, was about' $672,000, and a large, proportion of these were received' from States other than Iowa. - During the same period the respondent shipped to customers outside Iowa, products amounting in value to approximately $1,400,000. The respondent employed about 384 persons at the Waterloo plant at the time of the hearing. - American Wringer Company, Inc., a Rhode Island corporation having its office and principal place of business in Woonsocket, Rhode Island, is the parent of the respondent and as such was held jointly responsible by the Trial Examiner for the respondent's unfair labor practices. But since the record, as it now stands, does not indicate that it is necessary that any order be made against the parent in order to insure the effectiveness of the order we shall make against the sub- sidiary, 'or otherwise to effectuate the policies of the Act, we shall dismiss the complaint with respect to American Wringer Company, Inc. II. THE ORGANIZATION INVOLVED United Rubber Workers of America, Local No. 177, affiliated with the C. I. 0., is a labor organization, admitting to membership em- ployees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background: interference, restraint, and coercion Late in 1939 the employees in the punch-press department of the Waterloo plant became dissatisfied with a work schedule which called for a 12-hour shift on alternate days. A petition was circulated dur- ing the night shift and signed by a number of employees, protesting against this practice. J. E. Hartson, an employee, was asked by some fellow employees to undertake the securing of signatures among the' men on the day shift. He declined to do so, proposing rather that an attempt be made to organize the plant. Under his leadership cer- tain C. I. O. officials were approached and sometime in January 1940, an international representative of the United Rubber Workers came to Waterloo and assisted the respondent's employees in their efforts to organize. A meeting was held on January 15, 1940, members were secured, and sometime in February, temporary officers, later made permanent, were elected. These officers were Hartson, president; Leo Kramer, vice president; Rumbly B. Tanner, treasurer; and Rich- ard Elder, secretary. Early in February, steward buttons were secured and were thereafter worn regularly by the fourunion officers. In March the Union received its charter and distributed buttons to the members, who wore them openly in the plant. Membership in the Union was concentrated principally in the press department, although there were members scattered throughout the plant. Hart- CHAMBERLAIN CORPORATION 503 son testified that the maximum number of members in the press department was about 60 and was obtained sometime in March 1940. Early in February, on the same day that the officers of the Union first wore their steward buttons to work, Nicholas Etten, the respond- ent's vice president and general manager, called the day shift of the pressroom together. The men were told to stop their machines; that the meeting would last about 45 minutes, and that they would be paid for the time lost. At this meeting Etten discussed reports that certain of the pressroom operators were not at all times receiving the guaran- teed minimum wage of 45 cents an hour. At the close of the meeting, Etten stated that he knew there was a'labor organization in the plant, and that he had received reports through the mother of a certain punch-press helper that this employee had been threatened with. physical violence if he'continued in his refusal to join the Union. Etten stated further, in substance, that if he heard about any more threats to compel membership in the Union, he would spend his' last dollar in placing any man guilty of such' practice "behind the bars"; and also that he was the owner ,of most of the patents used in the plant, and that if there was any more "violence going on caused from a union in the shop," he would walk out with his patents and the workers would find themselves unemployed. The respondent contends that Etten's statements to the employees constituted merely an honest effort on his part to maintain discipline in the plant. We do not believe either that the statements were made in good faith, or that they were designed to maintain discipline. Berg, the international representative of the Union, testified that after Et- ten's speech, he, Berg, offered to cooperate in apprehending the man al- leged to have made the threats, but that Etten refused to give him the man's name or to tell him to whom the threats were made. At the hear- ing Etten admitted this, and stated that he himself had never inquired about the identity of the employee who had been threatened until "a couple of days ago" and that he had already forgotten the employee's name. Under these circumstances we find that Etten either fabricated the whole incident concerning the threats to the punch-press helper, to serve as a basis for his attack on the Union, or that he acted in reckless disregard of whether the basis for the attack was true or false. It is obvious, therefore, that Etten's statements were made not in order to, maintain discipline, but to interfere with and intimidate his employees with regard to their union activities. Moreover, we are of the opinion, and we find, that the remarks were in no event proper, since they went beyond the,scope.of legitimate disciplinary action. They served to place employees in the pressroom on notice that Etten disliked and distrusted the Union, and that he intended to penalize not only any worker who should be guilty of threats, but all the em- 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees whether innocent or guilty,' if there was any more "trouble" arising from union activities. Hartson testified that, shortly after Etten's speech, in the course of a conversation which he had on February 15, with Sabe Hellman, pressroom foreman, and Gene Miller, work scheduler in the press- room 4 relative to conditions in the shop, Miller said that "they wouldn't stand for organization out there at all," and that "that had been tried before, some of the fellows had spent their money, and who- ever was at the head of the Union had run off with the money be- fore . . . they ever got a charter and it just wouldn't work out." Leo Kramer, the Union's vice-president, testified that similar state- ments were made to him on the first day he wore his button in the shop, by Vince Barnard, Hellman, and Floyd Ransom, all of whom were pressroom foremen. He quoted Ransom as follows : A. Well, he just wanted to know what organization we belonged to, this United Rubber Workers of America, what it was about, whether it was A. F. of L. or C. I. 0., and so I told him, and he wanted to know how it was operated, and I tried to explain to him the best I could. He seemed-to be under the impression about the money end of it, where the dues were going. Q. What did he say? A. Well, he said, "The last time they tried to organize in here, the fellows paid their money and didn't even, get their charter, or anything, and when it was all over with the fellows that were the head'of it had taken the money and left and," he said, "it would be pretty tough to have the boys get together again." I told him we was going to try it, tough or not. - Richard Elder, secretary of the Union, testified that on May 11, 1940, he had a conversation with Howard W. Boslough, an inspector in the pressroom,5 concerning some drainboards and dies that had been sent to another shop to be fabricated. Elder stated to Boslough° that the respondent must be quite busy if it had to send work out, whereupon Boslough retorted, according to Elder : s The record indicates that Miller's duties as work scheduler in the pressroom were of a clearly supervisory character It was shown that because the presses were rated differently, the amount an operator might earn was dependent on the press to which he was assigned. and that this in turn depended on the decision of Miller, who gave orders to the foremen con- cerning the assignment of men to the presses. We find that Miller is a supervisory employee 6 The record indicates that inspectors in the pressroom have the duty of checking and approving the quality of work produced by a press operator and of stopping the operation.if the operator is doing h is work improperly . We find that Boslough is a supervisory employee CHAMBERLAIN CORPORATION 505 He said "No," he said, "That is not it." He reached up and tapped the union button that I had on my cap and he said, "That, is it; that is the reason, right on account of the union." And a short time later Boslough added, according to Elder: He says "Yes sir," and he says, "I know that for sure," he says, "But for Christ's sake, don't quote me as having said anything like that." He says, "I am in no position to be quoted." Gerald Clark, an employee, testified that on.May 25 Foreman Hell- man asked him where he had obtained his union button and how much it had cost him. After Clark had answered these questions, Hellman, according to Clark's testimony; said: "You might as well give me the two dollars for all the good it will do you. We tried that a while back and it never worked. The only thing you fellows would do is strike." Clark also testified that in an interview with Guy M. John- son, personnel manager, on April 26, 1940, relative to Clark's return- ing to work affer having 'broken a die, Johnson inquired whether Clark's union button,signified the Rubber Workers or a C. I. 0. organi- zation, and upon being told that the Rubber Workers was a C. J. 0. union, Johnson stated "That he didn't know why the fellows wanted to join the God damn Union." Johnson, when called as a witness by the respondent, stated that it was "entirely probable" that he had made this remark and added, "The whole burden of my story was that this man could get fair treatment, whether he belonged to a union or whether he did not, and as far as I could see, it was wholly unnecessary that he had to join a union (in) order to get redress for wrongs." Neither Hellman nor Miller controverted the testimony of Hartson. Bernard, Hellman, and Ransom denied the statements ascribed to them by Kramer. Hellman also denied, Clark's testimony, and Bos- lough denied that he made the statements ascribed to him by Elder. The Trial Examiner, who had an opportunity to observe the demeanor of the witnesses, found that the statements referred to above were made by the supervisory employees. Upon the entire record, includ- ing Etten's speech, the admissions of Johnson, and the uncontradicted testimony of Hartson, we concur in this finding. We find that by the foregoing statements of Etten, Miller, Bernard, Hellman, Ransom, Boslough, and Johnson, set forth above, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Di$cri/n ination in regard to hire and tenure of employment (1) The lay-offs Within approximately 4 months after the beginning of organiza- tional activity at the Waterloo plant, all four of the Union's officers, 506 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD and one of its most active members, were laid off or-discharged by the respondent. The Trial Examiner found that these employees were laid off or discharged because they joined and assisted the Union and engaged in concerted activities for the purposes of collective bargain- ing and other mutual aid and protection. The respondent takes ex- ception to these findings. In February 1940 production in the punch-press department Was in advance of the operations next in line, and Vice President Etten therefore ordered reduced production in the punch-press department. The respondent determined to reduce the force in this department from four shifts to three. Christensen, the plant manager, together with Miller, Johnson, and the three pressroom foremen considered the men in the four shifts and made lists of men, selected for retention sufficient in number to man three shifts. The foremen work on hours not coincident with those of the men and each of the three foremen had knowledge of the abilities of the men on all the four shifts. Johnson had a general seniority list for the plant which the supervisors alleg- edly consulted where men under consideration for the lay-off were of equal ability. In such cases the man older in service was supposed to have been retained. As a result of this conference 22 or 23 men in the punch-press department were laid off on February 23. In addition, the supervisors selected three or four employees who would be laid off if men at the time sick or temporarily out of the shop returned to their posts. In the outcome, three of the Union's four officials were laid off-Hartson on February 23, and Tanner and Elder'on March 2. These three employees were experienced in punch-press operations.' Nevertheless, according to their undenied testimony, they were laid off while men with less seniority were retained in the pressroom. Moreover each of them testified, without contradiction, that his work had never been criticized, and that at the time of the lay-off, his fore- man had told him that his work was satisfactory.? All were active union members as well as union officers. Hartson was the first man to join the Union in January 1940. As stated above, 8IIartson was first hired in the punch-press department about the middle of September 1934, resigned in June 1935 , and was rehired on January 11 , 1939 This finding is based on Hartson 's testimony. Johnson, the respondent's personnel manager, did not deny that Hartson had been first employed by the respondent in 1934 , and admitted that the respond- ent's records, which placed Hartson 's initial employment in the punch-press department in January 1939 , were sometimes unreliable. Tanner wa: first employed in the punch-press department on October 4, 1939, laid off on March 2, 1940 , rehired on March 23 and dis- charged on April 23, 1940. Elder was hired on October 6, 1939, in the punch -press depart• merit was laid off on March 2 , 1940 , was rehired on March 23 and resigned on August 9, 1940 - S When Ilartson protested to Christensen that some of the men left in the shop had been there only 2 weeks or so , Christensen said that he could not understand it, that Ilartson's work had always been average or above, that he was a good operator , and that the foreman had made out the list for lay-offs Hartson then went to his foreman , Hellman, who said that he had had nothing whatever to do with the list. CHAMBERLAIN CORPORATION 507, he had taken the lead in initiating the effort to form a local union. He was also active in soliciting memberships and testified that he had secured "a good number." As an official of,the Union, Tanner was one of the first to wear a union button in the plant and was also active in soliciting memberships, having secured the applications of 15 or 20 employees. On March 1, he, together with Elder and Berg, the Union's international representative, passed out copies of the United Rubber Workers' paper at the plant, distributing some 50 copies before and after his shift that day. It will be noted that both he and Elder were laid off when they next reported, for work. In addition to his activities as a union official and in the wearing of a union button, Elder testified that he discussed the benefits of union organization with everyone, including, "storekeepers and men on the street," and solicited members. Hartson, Tanner, and Elder, together with Berg, had an interview on March 4 with Christensen, at which time Berg stated to Chris- tensen that the Union felt that there was discrimination in the lay-off of these union officials. Christensen denied that this was true and ascribed the lay-off to inefficiency. He first denied that he had known of their union membership and positions as officers. Later in this same meeting, however, he stated that not all union officers had been laid off since another was still at work. This reference was to Leo Kramer. Christensen admitted at the hearing that this, account of the interview was substantially correct "excepting that after these men were laid off, it was told to me that there was still further union officers in the plant." On March 22, 1940, Ryder, a Field Examiner for the. Board, inter- viewed Christensen. The record does not specifically disclose the sub- ject of the interview. However, that same day the respondent sent telegrams to Hartson, Elder, and Tanner, stating that if they were unemployed they should report to the plant. Elder and Tanner did so, and were returned to their jobs on March 23. Hartson, after some delay, applied to Christensen and finally to Etten for reemployment and was rehired on April 11.8 Hartson was still working at the time of the hearing; Tanner was discharged on April 23,1940; 9 and Elder resigned on August 9, 1940, because of an accident. There can be no doubt, and we find, that the respondent was aware of the union activities of Hartson, Tanner, and Elder. When they first wore their steward buttons to work, the buttons aroused comment 8 Hartson was indicted for forgery on March 26, and spent the days March 23, •24 , 25, and 26 in jail,, and was on March 26 paroled after a plea of guilty . We have considered Hart- son's plea of guilty in evaluating his credibility . It may be noted that we have relied on no testimony of Hartson except that which was corroborated by other witnesses or that which was undenied. 8 See Section III^B 2, Infra 508 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD from various supervisors in the pressroom. Hartson, Tanner, and Kramer testified that their buttons were examined by the pressroom foremen, as well as by Christensen and Etten. Christensen and the foremen did not deny that they had examined the buttons. Although Etten denied that he had ever seen any of the buttons, we find his denial inherently incredible, since he called the meeting referred to supra, on the day the buttons were first worn by the officers and then stated that he knew that there was a labor organization in the plant. Moreover, the paper which Elder and Tanner had distributed at the plant gate contained an article stating the names of the four union officials. Burl Trebil testified without denial that he saw a copy of this paper on a table in the. pressroom foremen's office on March 1, the day before Tanner and Elder were laid off. Miller testified that his knowledge of the attempt to organize the plant began "when there were some union papers around the plant." That the lay-off of the three union officers was discriminatory is also clear from the record. As stated above, the respondent allegedly retained men with seniority if they had equal ability with those laid off. It was undeiiied, and we find, that Hartson, Tanner, and Elder had seniority over numerous employees who were retained in employ- ment. It was also undenied, and we find, that none of them had ever been reprimanded for poor work and that each of them was told by his foreman at the time of the lay-off that his work had been satisfac- tory. Indeed, no explanation was advanced by the respondent, either at the time of the lay-off or at the hearing, as to why Hartson, Tanner, and Elder were laid off while numerous employees, whose period of employment had been very brief, were retained ; nor was there any attempt to show that those retained were more efficient than the three union officers. We are convinced from all the facts related above, including our findings that the respondent had shown itself hostile to the Union and that it was aware of the union activities of Hartson, Tanner, and Elder, as well as the inadequacy of the, explanation given by the re- spondent for the lay-off of the three men, that Hartson, Tanner, and Elder were laid off because of the prominent part they played in union activities in the pressroom. Our findings in this respect are further strengthened by our findings in Section III B 2, infra, that the re- spondent, shortly after the lay-offs in question, discriminatorily dis- charged Leo Kramer, the remaining union officer, Tanner, and Buryl Trebil, whom the respondent had identified with Tanner and Elder as a leader in union affairs. We find that the respondent, by laying off J. B. Hartson on February 23, 1940, and Richard Elder and Rumbly B. Tanner on March 2, 1940, discriminated with regard to their hire and tenure of employment, CHAMBERLAI' CORPORATION 509 thereby discouraging membership in the Union and interfering with, restraining, and coercing its.employees in the exercise of the rights guaranteed in Section 7 of the Act. (2) The Discharges Rumbly B. Tannaer. After his return to work on March 23, 1940, Tanner continued in the respondent's employment until April 21, 1940. He last worked on a night shift on Sunday, April 21, and was sched- uled to return to work on Monday morning. However, he felt ill on Sunday night and requested Elder, who was to work on the next shift, to tell Foreman Ransom, supervisor of the'Monday shift, that he was ill and would be unable to come in for that shift. Elder did so, and thereafter reported to Tanner that Ransom had expressed his agree- ment that Tanner should remain away from work.10 Tuesday and Wednesday were Tanner's scheduled days off. On Wednesday he received a separation notice signed by Personnel Man- ager Johnson, which was postmarked 7: 30 p. m. on Tuesday, at which time Tanner had been out of the plant but two days and had missed only his Monday shift When questioned at the hearing concerning the notice, Johnson stated that Miller had reported to him that Tan- ner was absent without reporting the reason, that he, Johnson, had called Tanner's home and had been told by "some lady" that Tanner was not sick, and that no reason had been given for his failure to report for duty. Although Miller testified concerning the incident, he did not explain why he thought that Tanner was absent without reporting the reason, nor did he explain whether he had consulted Foreman Ransom before coming to this conclusion. Tanner testified that he remained at home throughout the three days, except for one hour on Monday when he went out to get some medicine, and that no call had been received' at his home from the plant during the three days he was absent. In this he was corroborated by his wife who testified that she had been at home practically the entire time in question, and that she was there during the period Tanner had gone out to get the medicine. The notice received by Tanner contained in printed form alterna- tive reasons which might be indicated for separation from employ- ment-one reading "Misconduct in connection with work," and the other, "Quit voluntarily without 'good cause." The first of these rea- sons was the one checked on the notice received by Tanner. Miller admitted at the hearing that since Tanner had merely failed to appear for work the reason assigned for separation should have been "Quit 10 This finding is based on the testimony of Elder and Tanner, which we credit , as did the Trial Examiner . Although Ransom testified that he did not remember Elder's reporting that Tanner was sick, be did not deny that Elder had done so. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD voluntarily without good - cause" rather than the one given. No ex- planation was advanced concerning the alleged misconduct of Tanner. Under all the circumstances , we find that Johnson's testimony that he discharged Tanner after one day's absence from work because he was told by an unidentified woman that Tanner was not sick, is not worthy of belief. There is no evidence in the record that the respond- ent was in the habit of treating its absent employees in such summary manner, or that any other employee was ever discharged for an unexplained absence of one day. In any event, as we have found above, the reason for Tanner's absence had been reported to Ransom, Tanner's immediate superior. In view of our findings above, that Tanner's union activity was well known to the respondent , and that he was discriminatorily laid off on March 2 , 1940, and in the light of the respondent's unconvincing explanation of his discharge on April23, we are of the opinion, and we find, that the respondent seized upon Tanner's involuntary absence from work, of which absence and the cause . thereof it was fully informed., as an excuse for precipitately discharging him and ridding itself of an active and outstanding mem- ber of.the Union. We find, as did the Trial Examiner, that by such discharge, the respondent discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union, and interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Buryl Trebil was first employed by the respondent in April 1931. He worked off and on until December 1938 and he thereafter worked steadily until his discharge on May 8, 1940 . He was closely asso- cited with Kramer, the Union's vice president and worked with him in soliciting members . He wore his union button in the shop, and on the occasion when Berg, Tanner, and Elder were passing out union literature , Wilson, the night superintendent , said to him : "I see a couple of your buddies out in front." ' Wilson was not called by the respondent to explain this remark. We find, as did the Trial Exam- iner, that Trebil's • union membership and activity were known to the respondent. On May 6, Trebil was directed to operate the toolroom press. This press was located in a room somewhat removed from the regular presses. It was used in especially busy periods and also for the pur- pose of testing dies that had recently been repaired or were in process of being repaired. When Trebil began to operate the toolroom press, he discovered that it was producing defective parts. He called this to the attention of Foreman Bernard and Inspector Bacon, both of whom were present. Bacon and Bernard attempted to fix the press. Bacon also undertook to operate the press with about the same results as Trebil had secured. Bernard informed Trebil that he was working CHAMBERLAIN CORPORATION 511 on a rush job. Bacon and Bernard instructed Trebil to continue to operate the press. Bacon also instructed Trebil to keep the defective pieces separate. After operating the press for about 3 hours, Trebil was assigned to another job. Although Bacon visited Trebil at least three times during this period, and although Bernard was present at the close of the period, neither Bacon nor Bernard made any comment to Trebil about his work on` the toolroom press. The foregoing is based on Trebil's uncontradicted testimony. Bernard assigned Kramer to the toolroom press some three-quarters of an hour before the end of the shift, and Kramer continued the operation during that period. Kramer testified that the results were iznp: rfect and that he had the following conversation with Bernard: [Kramer said:] Do you want me to run this machine the way it is-Bernard said "Go ahead, there is rush orders for them and they need them." I [Kramer] said : "They are in pretty bad shape, they are coming out scrap." He said "Go ahead and run them anyhow." Kramer testified also that when he showed the scrap to Bacon, Bacon "just threw up his hands and walked away." Bacon did not appear as a witness. Bernard denied that he had told Kramer to operate the press if it was defective, asserting: "I do not believe he told me it was producing scrap." The Trial Examiner found that Bernard's testimony was marked by lack of exact recollection bordering at times on evasiveness. We agree with this finding. In view of the uncontradicted testimony of Trebil set forth above, the unexplained failure of Bacon to appear as a witness, and the unsatisfactory character of Bernard's testimony, we accept the testimony of Kramer and find that the output-on the toolroom press during the period of its operation by Kramer was also im- perfect, and that Bernard made the statements and Bacon acted in the manner described by Kramer. Trebil testified that the scrap produced was due solely to the defective press, and that he had not operated the press in an improper manner. Miller, Christensen, and Bernard testified, in substance, that Trebil did mishandle the press. The Trial Examiner, who had an opportunity to observe the demeanor of the witnesses and their reaction to cross-examination, found that the "faulty output was due to the condition of the machine." ` In view of the facts set forth above concerning the operation of the press by Trebil and Kramer, and the statements and behavior of Bacon and Bernard relative thereto, as well as the failure of Bacon to testify that Trebil was at fault, the vagueness of Bernard's testimony, and the fact that Miller and Christensen did not personally observe Trebil operate the press, 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we agree with the Trial Examiner that the defective results produced were due solely to the condition of the press , and we find that Trebil was not responsible for such results. The following day, Bacon reported to Miller that a large number of defective parts had been run on the toolroom press. Miller there- upon went into the plant and inspected the parts , took ,half a dozen of them to his desk, and told Bernard to send Trebil to him when Trebil reported to his next shift. Miller testified that Bacon did not tell him who had produced the defective pieces and that he learned of Trebil's participation in the operation of the toolroom press from Trebil's time card. Although Miller claimed that the production of scrap had been reported to him before , he was unable to remember when or how many times this had been done. He was also unable to remember any other occasion on which he had made a point of going into the plant and inspecting scrap which had been run. When Trebil reported to Miller, "Miller suggested that he might be laid off for a few days because of the faulty work on the toolroom press. Upon Bernard's protest, however , that he was short handed, Miller instructed Trebil to return to work and to report to Christen- sen the following day. Miller admitted at the hearing that normally he was responsible for disciplinary action in the pressroom, that Christensen rarely participated personally in a discharge from that department, and that when he sent Trebil to Christensen , he did not recommend that Trebil be discharged. The following morning, Trebil reported to Christensen that Miller had instructed him to see' Christensen because he "had some scrap the night before." Christensen remarked that he could not retain men who produced scrap. Trebil testified and Christensen admitted that, during the conversation, Trebil explained to Christensen that the press was defective and that he had continued to operate it because he had been directed to do so by his supervisors. Christensen' stated that he was going to prevent scrap "if he had to discharge all the men in the press department ." Trebil and Christensen en- gaged in an exchange of words about the employees' alleged practice of operating the presses at excessive speeds in order to earn more than the base rate." The record discloses that there was general 11 Trebil testified as follows in this connection • ' And he [Christensen] says, "You fellows that has been out building harvesters come in here and think you can sit right down to a job end run it wide open , just so you can make more than the base rate which is 45 cents an hour." He says, "we can't have no fellows like that " I told Air Christensen that I wouldn 't work out in the press department if I couldn't make over 45 cents an hour And he says , "well, you have got the wrong attitude " He says, "I would advise you to quit " CHAMBERLAIN CORPORATION 513 dissatisfaction in the pressroom concerning the rating of the presses and that Etten, in his speech on February 7 (referred to supra) stated, in substance, that he desired the earnings of every pressman to be above the minimum ; and that he intended to have the presses rerated so that the men could "make some additional money." At the close of the conversation , Christensen discharged Trebil on the asserted ground that he had "the wrong attitude." At the hearing, Christensen did not explain wherein Trebil had demonstrated an objectionable attitude .12 Christensen , claimed that he believed that he had discharged others for an' improper "attitude" but he was unable to remember the names of, or otherwise to identify, such persons. Christensen admitted at the hearing that he had no personal knowledge concerning Trebil's performance on the press prior, to Trebil's-reporting to him and that he had, without investigation and without consulting either the foreman or the inspector concerned, ,and without inquiry as to the condition of the press, discharged Trebil. This summary action, Christensen admitted , was contrary to his general practice of making a discharge only on his own observa- tion or after recommendation of a foreman and a thorough investi- gation by him. Although Bernard and Bacon Were mildly reprimanded by Miller and Christensen , they were not otherwise disciplined because of their responsibility for the running of scrap on the toolrooni press. More- over, Elder testified without contradiction , and we find , that on May 16, 1940, he was working with another employee who ran a large amount of scrap and that Miller was there and saw the I says, "No," I says, "I won't quit, but you are the boss here , and if you don't want me here, why, that is up to you " I says, "You can discharge me and discharge all the men in the press department but you will still be getting scrap " The respondent called Christensen as a witness but did not question him about Trebil on direct examination On cross-examination Christensen testified that Trebil "said he had run some bad pieces, and that lie couldn't help it because a die was broken, and if he was to collect day sate he would have to slow up and clue to the condition of the die, it was impossible to run good pieces " On redirect examination , Trebil categorically denied that he told Christensen that be had operated the toolroour press in an improper manner and the respondent did not further examine Trebil concerning the incident Upon the entire record , including the ambiguity of Christensen's testimony, and the above-found facts relating to the operation of the tool- room piess we ci edit Trebil 's denial and find that he did not admit in his conversation with Christensen preceding his discharge that he had operated the.toolroom press in an improper manner - 12 On cross-examination Christensen stated that he could not "explain an attitude " In answer to the general question , "What do you mean by a man's attitude as differentiated from any overt words or act ," he replied generally . "Well, whether lie has a chip on his shoulder or not that explains it " But Christensen did not assert that he found that Trebil had carried "a chip on his shoulder" Although it "Foreman's Estimate of Employee Value" characterized Trebil as taking "the attitude that it is all right to run junk so as to make the money lie thinks be should make," this alleged estimate was made after, Trebil's' discharge and was prepared by Miller who admittedly d'd not participate in the decision to discharge Trebil 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee run the scrap, but neither reprimanded nor discharged him. Miller was not questioned at the hearing about this incident. Al- though Miller testified that he had discharged men for running scrap, he was unable to remember whom, or how many, he had discharged for this reason, or when he had discharged them. In sum, Trebil operated a defective press upon orders from his superiors, and he did not operate the press in an improper manner. Miller did not propose that Trebil be discharged for his performance on the press. Christensen, who discharged Trebil, admitted that it was not his, practice to make a discharge without investigation and without consulting either the foreman or the inspector concerned, and without inquiry as to the condition giving rise to the discharge. He also admitted that Trebil explained to ' hiin that he had only continued to operate the press upon orders from his supervisors. Bacon and Bernard, who directed Trebil to operate the faulty press, were not discharged. Under these circumstances, we find, as did the Trial Examiner, that the respondent did not discharge Trebil for running scrap or for operating the press improperly. The respondent contends that Christensen discharged Trebil pri- marily because of his "attitude." Christensen's testimony in this connection, however, was vague and indefinite. Moreover, the record does not disclose that Trebil's attitude or behavior was improper at the time of his conversation with Christensen preceding his dis- charge or at other times. As we have found above, no showing was made that Trebil acted- other than in the manner directed by his supervisors. Trebil was an active .Union member. He had worked closely with Kramer, the Union's vice president, and had been identi- fied by Night Superintendent Wilson as a "buddy" of Tanner and Elder. Finally, the respondent was hostile to the Union. The fore- going facts convince us, and we find, that Trebil was discharged not for manifesting an objectionable attitude, but because of his union membership and activity. We find, as did the Trial Examiner, that by discharging Buryl Trebil, the respondent discriminated in regard to his hire and tenure of employment thereby discouraging membership in the Union, and interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. Leo Kramer was first employed by the respondent in 1926. He worked for about a year and a half in the assembly department and quit. The records of the respondent show that he was hired again on June 1, 1935, at 40 cents an hour as a press operator, that his pay was raised to 45 cents on March 15, 1937, and that he was dropped on April 15, 1938. He was rehired on May 10, 1939, and continued to work until his discharge on May 8, 1940. Kramer was , CHAMBERLAIN CORPORATION 515 vice president of the Union and' wore his steward button in the plant. He was also active in soliciting members, and secured union applications from 25 to 30 employees. As stated above, some three-quarters of an hour before the end of the shift on May 6, Kramer was assigned by Foreman Bernard to the toolroom press which Trebil had been operating. When the shift ended, Kramer had made some 320 strokes on the press, for, which lie would have received a piece-rate wage of 32 cents. How- ever, at the time Kramer was assigned to the toolroom press, he had been working on a straight-time basis setting up another press. Since his piece-rate wage did not equal the amount he would have earned had he continued to work on a straight-time basis, he told Trebil to turn in the 320 strokes on his time card, and he, Kramer, turned in his card for straight time. JIThen Miller summoned Trebil to explain the defective pieces he had produced, Kramer accompanied him as a union grievance man. Kramer, in an attempt to defend Trebil, told Miller that he also had produced some of the scrap. , Miller thereupon referred to the time _ cards and discovered that Kramer had turned in straight time, for the time he operated the press. Miller reported this fact to, Chris- tensen. When Kramer called on Christensen as a member of the union grievance committee in Trebil's behalf, Christensen told Kramer that he was discharged for "cheating the Company by giving Trebel 320 pieces and not turning them in." 13 Kramer protested that "it seemed to be a common practice around through the shop to do that. I have had strokes given to me, and nobody had ever done anything about it." Christensen, however, reiterated his statement that Kramer was discharged and the interview-ended. The respondent relies on the-fact that Kramer had violated com- pany miles and committed a dishonest act in transferring strokes to Trebil, as justification for his discharge. Miller produced at the hearing a set of rules promulgated 'in 1935 or 1936. He .testified that when first issued, these rules were given a very wide distribution, and that not only was a copy posted in the pressroom where all the employees could consult it, but a copy was also handed to each newly hired pressman, when he went on duty. Rule No. 19 of these rules reads: "any press operator found knowingly turning in a. wrong count of the parts he runs will be dismissed." However, these rules were generally construed by the employees not to prohibit a transfer among themselves of strokes which had actually been run. Thus Kramer testified that he did not give Trebil the strokes in violation of any rule that he knew of, and that he had done the same thing; 13 It should be, noted that although Kramer was discharged allegedly for transferring strokes to Trebil, the respondent never assigned this as a reason for Trebil'S discharge. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before, and had never thought anything of it. We believe , as did the Trial Examiner, that Kramer's action in freely disclosing to Miller his transfer of strokes to Trebil , bears witness to the truthfulness of this testimony . Elder also testified that on March 29 , Foreman Ransom had given him 870 strokes that had been run by another man who had been sent home, and that he had also received strokes twice from an employee named Johnny Laughlin ., Harold Church testified that Foreman Ransom had given him strokes that had been run by an employee named Leroy Rehrens . He also testified- that Ransom himself had run strokes which he gave to Church . Kramer, Elder, and Church all testified that the transfer of strokes was freely practiced in the shop, and that they had never been told that there was a rule against such practice , nor did they know of anyone who had ever been disciplined under the rule. Foreman Ransom admitted at the hearing that he had ."lots of times" run strokes to help pro- duction along, and had given them to the man who was later assigned to the machine. The respondent contends that Ransom 's case is different from that of Kramer in that Ransom would have earned his weekly salary whether or not he ran the presses , while Kramer would only have been paid on a straight-time basis if he had actually worked straight time. However, - it is evident that the acts of both men in trans- ferring strokes resulted in the respondent's paying an employee for work which he had not done. When Kramer gave 320 strokes to Trebil, the respondent , at that point , had suffered no pecuniary loss, since it would have had to pay Kramer for the strokes. When Kramer, however , turned in straight time for' the time he had run the strokes, he received three-quarters of an hour 's pay for straight time which he had not put in. But similarly , since Ransom was paid a salary, there was no reason why the respondent should have paid him for running a press , and yet when he did and gave strokes to another employee , that employee collected money which he had not earned and which the respondent otherwise would not have had to pay. Yet Raxisom, by his on admission , freely practiced the transfer of strokes in the shop. The respondent contends also that the fact that men had never been disciplined before for transferring strokes, is due to the fact that the practice is difficult to detect from the time cards . We find it incredi- ble, however, in view of the testimony of Kramer , Elder, and Church, to the effect that the transfer of strokes was regularly and openly accomplished by the pressroom employees, and in view of Ransoms admission that he had often directed men to turn in strokes which, they had not run, that the respondent was unaware of the practice. Indeed we think it clear, and we find, that the transfer of strokes CHAMBERLAIN CORPORATION 517 was regularly condoned by the respondent until such time as it was discovered that Kramer had engaged in the practice; and that the respondent's rules were strictly construed in the case of Kramer, not because the respondent considered his offense serious, but because it was eagerly seeking a plausible excuse for discharging a prominent leader in the Union. Kramer's position as union vice president, his activity in soliciting memberships and in presenting union grievances to the management, when viewed in the light of our findings of the respondent's-discrimination against all the other union officers and one of its members, as well as the respondent's manifest hostility toward organization in its plant, convince us, and we find, that Krasner also was singled out and discharged because of his union activity, rather than for any breach of plant rules. We find, as did the Trial Examiner, that by discharging Leo Kramer, the respondent discriiinated in regard to his hire and tenure of employment, thereby discouraging membership in the Union, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The-Alleged Discrimination in the Assignment of Jobs The Trial Examiner found that the evidence did not substantiate the allegations of the complaint that employees at the Waterloo plant had been discriminated against in the assignment of jobs. No ex- ception has been taken to this finding. We have considered the record and agree with the Trial Examiner. We shall therefore dismiss this part of the complaint. 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 re- spondent -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 unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondent discriminated against J. E. Hartson, Rumbly B. Tanner, Richard Elder, Buryl Trebil, and Leo 443257-42-VOL 37--34 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kramer with regard to their hire and tenure of employment.. Hart- son was laid off on February 23, and Tanner and Elder on March 2, 1940. They were then reinstated effective March 23, 1940.14 Tanner was thereafter unlawfully discharged, as were Trebil and Kramer. None of these three has since been offered reinstatement. We shall, therefore, order the respondent to make whole J. E. Hart- son, Rumbly B. Tanner, and Richard Elder for any loss of pay they have suffered by reason of their discriminatory lay-offs, by payment to each of a sum equal to the amount which he normally would have earned as wages from the date of the discrimination against him to March 23; 1940, the effective date of his reinstatement, less his net earnings during said period.15 We shall also order the respondent to offer to Rumbly B. Tanner, Buryl Trebil, and Leo Kramer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make whole each of them for any loss of pay he has suffered by reason of the discriminatory discharge by payment to each of a sum of money equal to that which he normally would have earned as wages from the date of the respondent's discrimination against him, to the date of the respondent's offer of reinstatement, less the net earnings of each during said period. Upon the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Rubber Workers of America, Local No. 177, affiliated with the C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- . ment of J. E. Hartson, -Rumbly B. Tanner,, Richard Elder, Buryl Trebil, and Leo Kramer, thereby discouraging membership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in 14 As found above, i3aitsor did not appear in response to the respondent's offer of rein- statement until April 11 1940 i, Dv net earnings" is meant earnings less expenses sash 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 dis- crunination against him and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workeis Union, Local 2590, 8 N L R B 440 Monies re- ceived for work performed upon Federal. State, county municipal, or other work-relief pioects shall be considered as earnings See Republic Steel Corporation v N L R B, 311 U S 7 CHAMBERLAIN CORPORATION 519 the exercise of the -rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 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. The respondent has not engaged in unfair labor practices within the meaning of the Act with respect to the assignment of work at the Waterloo plant. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Chamberlain Corporation, Waterloo, Iowa, its officers, agents , successors, 'and assigns , shall : 1. Cease and desist from: (a) Discouraging membership in United Rubber Workers of America, Local No. 177, affiliated with the C. I. O. or in any other labor organization of its employees by discharging, laying off, or in any other manner discriminating in regard to their hire and tenure of employment or any terns or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self -organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Make whole J. E., Hartson, Rumbly B. Tanner,, and Richard Elder for any loss of pay they may have suffered by reason of their discriminatory lay-off, by payment `to each of them a sum of money equal to that which he normally would have earned as wages during the period from the date of such discrimination to the date of his reinstatement, less his net earnings during said period; (b) Offer to Rumbly B Tanner, Buryl Trebil, and Leo Kramer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (c) Make whole the said Rumbly B. Tanner, Buryl Trebil, and Leo Kramer for any loss of pay aach may have suffered by reason of his discriminatory discharge, by payment to each of them of a sum 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of money equal to that which he normally would have earned as wages during the period from the date of such discrimination to the date of the respondent's offer of reinstatement, less his net earnings during such period ; (cl) Post immediately in conspicuous places throughout, its plant in Waterloo, Iowa, and maintain for a period of at least sixty (60) consecutive days front 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 the United Rubber Workers of America, Local No. 177, affiliated with the C. I. O. and that the respondent will not dis- criminate against any employee because of membership or activity in that organization; (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 herewith, and IT IS FURTHER ORDERED that the complaint be, and it hereby, is, dis- missed insofar as it alleges that the respondent discriminated against its employees in the assignment of work at its Waterloo plant,, and IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed with respect to American Wringer Company, Inc. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order.