American Car and Foundry Co.

National Labor Relations Board - Board Decisions

Mar 22, 1946

66 N.L.R.B. 1031 (N.L.R.B. 1946)

In the Matter of AMERICAN CAR AND FOUNDRY COMPANY and PRESTON
WALTER ROPER, AN INDIVIDUAL
Case No. 14-C-981.-Decided March 22, 1946
DECISION
AND
ORDER
On July 28, 1945, the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set out in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a supporting brief. On February 19, 1946,
the Board heard oral argument at Washington, D. C. The respondent
participated in the argument; Preston Walter Roper, the individual
who filed the charge in the instant proceeding, did not appear.
The Board has considered the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed, except as hereinafter indicated. The
Board has considered the Intermediate Report, the exceptions and
brief filed by the respondent, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following modifications, additions, and
exceptions:
1. We find, as did the Trial Examiner, that the respondent dis-
charged Preston Walter Roper because of his non-membership in
the Union, and thus violated Section 8 (3) of the Act.' We also
agree with the Trial Examiner's findings that, prior to Roper's dis-
charge, the employees engaged in a work stoppage because Roper
had refused to join the Union. However, in determining the reason
for the work stoppage, the Trial Examiner did not advert in his
Intermediate Report to the respondent's contention that the work
stoppage was attributable to employee resentment against Roper.
1In addition , we find that the respondent violated Section 8 (3) of the Act by refusing
or failing to reinstate Roper for the same reason
66 N. L. R. B., No. 129.
1031
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arising from the fact that his frequent absences from work imposed
an undue burden upon his fellow employees? Roper had been absent
from work; the respondent had given him a warning slip because of
absences; and, on at least one occasion, Roper's fellow-worker had
complained to the respondent of having to work with an inexperienced
helper because of Roper's absence from work. On the other hand,
Assistant Foreman Sam Brawley testified credibly that, on the morn-
ing of the work stoppage, the men were having difficulty about
"collecting union dues or joining the union or something," and accord-
ing to Roper's testimony which we credit, as did the Trial Examiner,
while the work stoppage was in progress, Brawley said to,Roper:
"The boys didn't seem to want to work with you. You don't belong
to the Union." Accordingly, we reject the respondent's contention
that the work stoppage was attributable to Roper's absences from
work.
2. The Trial Examiner also failed to advert in his Intermediate
Report to the fact that the respondent had warned Roper not to
leave work before the quitting whistle blew and, while adverting in
the Intermediate Report to evidence that several chainers did not
belong to the Union, at the hearing the Trial Examiner refused to
admit at the respondent's request, a document purporting to show
the number of employees in the unit covered by the Union's contract
as to whom the Union did not request the respondent to deduct union
membership dues from wages due them. The Trial. Examiner's ruling
is hereby reversed and the document, marked Respondent's Exhibit
7, is hereby made part of the record. While Roper had been warned
not to leave work before the established quitting time, and non-union
employees other than Roper worked in the plant, as set forth above,
these facts do not alter our conclusion that the respondent discharged
Roper for his refusal to join the Union, as more fully set forth
hereinabove and in the Intermediate Report.
3. The Trial Examiner did not note in his Intermediate Report
testimony to the effect that the respondent's plant manager had in-
structed Brawley to discharge the first Ivan to be caught quitting
work early. We do not credit such testimony in view of the entire
•As disclosed in the Intermediate Report, the respondent does not contend that it dis-
charged Roper because of such absences. The respondent 's position is that Roper was
dischaiged for leaving work early in violation of company rules we agree with the
Trial Examiner , as set foith in the Intermediate Report , that the chaimnen customarily
violated the company rule in tins respect; that the respondent acquiesced in such viola-
tions because of the acute manpower shortage existing in 1944; and that the respondent
utilized Roper 's action in leaving work early on the day prior to his discharge as a pre-
text to discharge him in order to satisfy those employees who refused to work with
Roper unless he joined the Union. However, unlike the Trial Examiner , we deem it
unnecessary to determine whether the respondent accorded Roper a hearing prior to his
dismissal as provided in the contract between the respondent and the Union ; we there-
fore do not rely on the existence of an alleged breach of contract in concluding that the
respondent unlawfully discriminated against Roper
AMERICAN CAR AND POCNDR Y COMPANY 1033
record and partirularl3 in view of credible testlnx,ny by employee
Tf:be Vaulx that on the day of, but after Roper's di,,charge Vaulx
o%erlleard Brawley sa3 to employee Saul Beard: "I told you I would
aget rid of him, didn't I?"
4. In the Intermediate Report, the Trial Examiner stated : "Ac-
cording to Roper's uncontradicted and credited testimony, Pipes was
at that time taking a shower in the same locker room that Roper
was in." Brawley testified that, when he visited the locker room at
about the time referred to by Roper, Roper was the only chainman
whom Brawley saw.4 However, like the Trial Examiner, we credit
Roper's testimony.
THE REMEDY
We agree with the Trial Examiner that, in acceding to the em-
ployees' demand in effect for the discharge of Preston Walter Roper
under the circumstances revealed in the Intermediate Report, the
respondent violated Section 8 (3) of the Act. Normally in cases
in which an employer has unlawfully discriminated against an
employee by discharging him, in addition to affirmative relief, we
order the employer to cease and desist from in any manner infringing
upon the rights guaranteed in Section 7 of the Act. However, in
the instant case, the respondent discharged Roper not to satisfy any
purpose of its own ; rather, in terminating Roper's employment, the
respondent yielded to the pressure of those employees who refused
to work with Roper because of his non-union status. Under such
circumstances, and in view of the absence of any evidence that danger
of other unfair labor practices is to be anticipated from the re-
spondent's conduct in the past, we shall not enjoin the respondent
from the commission of any and all unfair labor practices. Never-
theless. in order to effectuate the purposes of the Act, we shall order
the respondent to cease and desist from the unfair labor practice
found; and, like the Trial Examiner, we shall order the respondent
to take certain affirmative action, including reinstatement of Roper
with back pay, designed to effectuate the policies of the Act.
ORDER
l ,pon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, American Car and Foundry
Company, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
a Brawley denied making this statement Beard did not testify.
4 Pipes was also a chainman . He did not testify.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Encouraging membership in the Brotherhood of Railway Carmen
of America, AFL, or any other labor organization, by yielding to
employee or other pressure through discharge or refusal to reinstate
any employee or through any other form of discrimination in regard
to hire or tenure of employment or any term or condition of
employment;
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Preston Walter Roper immediate and full reinstate-
ment to his former or a substantially equivalent position , without
prejudice to his seniority or other rights and privileges;
(b) Make whole Preston Walter Roper for any loss of pay that
he may have suffered by reason of the respondent's discrimination
against him, by payment to him of a sum of money equal to the
amount he normally would have earned as wages from the date of
his discharge to the date of the respondent's offer of reinstatement,
less his net earnings during said period;
(c) Post at its plant at Madison, Illinois, copies of the notice
attached hereto and marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Fourteenth Region,
shall, after being duly signed by the respondent's representative, be
posted by the respondent immediately upon the receipt thereof and
maintaind by it for sixty (60) consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respondent
to insure that said notices are not altered, defaced, or covered by
any other material;
(d) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, what
steps the respondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
"APPENDIX A"
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER
of the National Labor Relations Board, and in order to effectuate the
policies of the National Labor Relations Act, we hereby notify our
employees that :
We will offer to the employee named below immediate and full
reinstatement to his former or a substantially equivalent position
without prejudice to any seniority or other rights and privileges
AMERICAN CAR AND FOUNDRY COMPANY 1035
enjoyed, and make him whole for any loss of pay suffered as a
result of the discrimination.
Preston Walter Roper
We will not encourage membership in the Brotherhood of Rail-
way Carmen of America, A. F. L., or any other labor organiza-
tion, by yielding to employee or other pressure through discharge
or refusal to reinstate any employees or through any other form
of discrimination in regard to hire or tenure of employment or
any term or condition of employment.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of ntein-
bership or non-membership in or activity on behalf of any such labor
organization.
AMERICAN CAR AND FOUNDRY COMPANY,
Employer.
Dated .................. By....................................
(Representative ) (Title)
NOTE : Any of the above-named employees presently serving in
the armed forces of the United States will be offered full reinstate-
ment upon application in accordance with the Selective Service Act
after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Harry G . Carlson , for the Board.
Hardy, Stancldia and Hardy, by Mr. J. Donald Rawlings , of New York City,
for the respondent.
STATEMENT OF THE CASE
Upon an amended charge duly filed on May 25, 194.5, by Preston Walter
Roper,' an individual, herein called Roper, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Fourteenth Region
(St. Louis, Missouri), issued its complaint dated May 25, 1945, against Ameri-
can Car and Foundry Company, 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.
Copies of the complaint accompanied by notice of hearing thereon were duly
served upon the respondent and Roper.
With respect to the unfair labor practices, the complaint alleged in substance
that on or about July 12, 1944, the respondent discharged Roper, its employee,
' A motion to correct the name of the charging individual was granted at the hearing.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the reason that he refused to join the Brotherhood of Railway Carmen of
America, AFL , herein called the Union , a labor organization within the meaning
of Section 2 (5) of the Act, and has at all times thereafter refused and failed
to reinstate said Roper to his former or substantially equivalent position or
employment , and that by such acts interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act
The respondent's answer , filed at the hearing, adm i tted the nature and inter
state character of its business .' It admitted the discharge of Roper and affirma-
tively alleged that Roper was justifiably discharged for repeatedly leaving his
work before the established quitting time after repeated warnings . It further
affirmatively alleged, without making any concession in this regard, that
assuming the facts alleged in the complaint were true and correct , no grounds
were stated in the complaint sufficient to invoke the jurisdiction of the Board
under the provisions of the Act and that therefore the complaint should be
dismissed.
Pursuant to notice , a hearing was held on June 7 and 8, 1945, at St . Louis,
Missouri , before the undersigned Trial Examiner , duly designated by the Chief
Trial Examiner. The Board and the respondent were represented by counsel;
Roper appeared but was not represented by counsel . Full opportunity to be
heard, to examine and cross -examine witnesses , and to introduce evidence bear-
ing on the issues was afforded all parties At the close of the Board's main
case, the respondent moved to dismiss the complaint on the grounds that (1)
the charge alleged is not a matter contemplated as subject to the jurisdiction
of the Board in that Congress intended through the Act to protect employees
seeking to barcain collectivel.N , to awcnihlo for the purpose of bargaining, and
to be represented by per'ons of their own shoos-ng„ and that the chaise herein
is directly opposed to that concept ; ( 2) the evidence produced by the Board
to support the allegations did not sustain the charge The motion was denied.
At the close of the hearing , respondent 's counsel renewed his motion to dismiss,
made at the close of the Board's main case. The undersigned reserved ruling
thereon . The motion is hereby denied The parties did not avail themselves
of the privilege extended to them of presenting oral argument . The Board
and the respondent thereafter filed briefs with the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
American Car and Foundry Company is a corporation duly organized under
and existing by virtue of the laws of the State of New Jersey with its principal
offices and place of business at New York City. It is engaged in the manu-
facture of railroad freight and passenger cats and operates plants in various
States of the United States including a plant at Madison, Illinois, the only
plant involved in these proceedings
During the year 1944. the respondent. in the course and conduct of its busi-
ness operations at Is .Madison plant, caused to be purchased, transferred, and
delivered to said plant raw and processed materials consisting of lumber, steel,
and iron castings valued at in excess of $200,000, of which approximately 40
2 The answer denied that the respondent manufactured railroad passenger cars at its
Madison plant, but admitted however that it manufactured freight cars at this plant.
AMERICAN CAR AND FOUNDRY COMPANY 1 037
percent was shipped to the Madison plant from sources outside the State of
Illinois. During the same period the respondent at Its Madison plant manu-
factured products having a value in excess of $1,000,000, of which approxi-
mately 50 percent was sold and shipped by it to points outside the State of
Illinois
The respondent concedes that it is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Brotherhood of Railway Carmen of America, AFL, affiliated with the
American Federation of Labor, is a labor organization which admits to mem-
bership employees of the respondent
III THE UNFAIR LABOR PRACTICES
A. Introduction
The Madison plant is engaged in the production of railroad freight cars and
repair parts for freight cars. From the latter part of January 1944, until the
end of September 1944, the plant was producing railroad box cars for the
United States Government.'
In the construction of the cars, respondent employed, among others, men who
worked on an assembly line on the track where the cars were assembled' and
chainers whose duties were to attach and detach chains from materials lifted
by cranes, and to place these materials in readily accessible positions for the
trackmen to use. Trackmen were piece workers while chainers were hourly
paid workers
Since 1941, the respondent has recognized the Brotherhood of Railway Car-
men of America G and the International Brotherhood of Electrical Workers,
both affiliated with the A. F. of L. and the International Association of Machin-
ists, as the collective bargaining agents of the employees" Joint contracts to
which all these labor organizations and the respondent were parties were
entered into in 1941 for a period of 1 year and since that time have been
enelved from year to year. 't he 1043-44 contract ' had. among other provisions,
a maintenance of membership clause I
11 The discriminatory discharge of Preston Walter Roper
Preston Walter Roper was an employee of the respondent at the Madison
plant from December 1943 to July 12, 1944' Roper was a chainer 10 in the
' Norman II Shipley, t istant district nianagei in charge of the Madison plant, tes-
tified that the only other work at the plant for the period, January through September
1944, was the production of parts for freight cars for various railroads to fill "jobbing
orders " Only about 5 percent of the plant worked on "jobbing orders "
*The workers thus engaged in the construction and assembling of cars on the track
were referred to at the hearing as trackmen
`The liiotheihood of Railua,^ Carmen represented among otbeis, tho employees of the
steel and wood erection department including ehainers and trackmen
6 These labor organizations w ere certified by the Board after Board directed elections
were held. See Cases No. 14-R-200; 14-R-202: 14-R-205
7 This same contract was extended under its terms for another year
8 This clause contained the fifteen-day escape pci rod during which members of the
Union could decide whether or not they wished to withdraw from the Union or remain
members and comply with the maintenance of menibeislup provisions of the contract.
0 Roper was employed by respondent at its St. George Street plant in St Louis from
the summer of 1943 until his transfer to the Madison plant in December 1943.
10 The terms chainer and chainman were used interchangeably at the hearing
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
welding aisle and the steel and wood erection shops. He worked with a lead
chainman, both of whom attached chains to materials that were hoisted by
cranes and moved over to a proper position on the floor after which the
chainers detached the chains from the materials. The lead chalner directed
this work." Construction men or trackmen, who were employed also in the
steel and wood erection departments where the cars were being built, were
served by the chainmen. Upon the completion of an allotment of twenty cars
a day they could leave the plant.
Roper, Ocie Jeffries, Arthur Johnson, and Tobe Vaulx," all chainers employed
by respondent during the period that the plant was working on the government
order, testified that the construction men ordinarily completed their daily allot-
ment of cars by 1:00 or 2 :00 p. m.; that thereafter the chainers were required
to move materials up to the track for the construction men for the next day's
work ; that as a general rule this work took the chainers about 30 to 45 minutes
to complete ; and that the chainers would finish their work for the day at about
2:30 or 3 o'clock, at which time they went to the washrooms to take showers,
change to their street clothes and then waited for the whistle to blow at
3:30 p. m" when they were permitted to leave the plant. This practice of
going to the washroom and changing to street clothes at 2:30 or 3 o'clock,
according to testimony of Jeffries, continued all of the time that he was a
chainman at the Madison plant. Roper testified that the practice by chainers
of finishing their work at 2:30 or 3 o'clock and of going to the washroom to
change clothes commenced soon after the respondent started working on the
government order. Johnson, a lead chainer, testified that it was very seldom
that he had to work until 3:30. Vaulx testified that the practice of taking
a shower and changing clothes between the hours of 2:30 to 3 o'clock was
in effect and continued all of the time that he was a chainer in the steel
erecting department.
Although Shipley testified generally that it was impossible for chainmen to
complete their work in 25 or 30 minutes after the trackmen completed their
work, he admitted that on many occasions when he went through the plant
from 2 o'clock to quitting time he would not see a crane moving and that the
chainmen were not around. Shipley further stated that quitting before whistle
time was a serious matter in the plant, and In order to keep the practice"
down to a minimum and control it, "because it grows and grows," a notice had
ss It was neither contended nor Is it found that the lead chainman are supervisory
employees.
12 Jeffries was a chainer in the press department for 2 or 3 months at the beginning
of 1944, and was then transferred to chaining in the welding aisle for the construction
men building tops on cars where he remained until about 10 or 12 days after Roper .
discharge.
Roper, as Indicated above, chained in the welding aisle and In the steel and wood
erection departments.
Johnson was a chainer in the wood erection department from August 1943 until Sep
tember 1944 , except for a few weeks in the spring of 1944.
Vaulx was a chainer in the steel erection department from December 1943 until after
Roper 's discharge and he was still employed by the respondent at the time of the hearing
as a fitter at its St George Street plant.
13 The contract between the Union and the respondent provides that 8 hours shell
constitute a regular work day and the regular starting time shall not be earlier than
7 a. in. or later than 8 a. in. with a 30-minute lunch period. The plant hours in the
spring and summer were from 7 a. m. to 3:30 p. m.
14 John F. Creed, supervisor of labor and industrial relations, testifying at the hearing
characterized this practice as an "abused privilege."
AMERICAN CAR AND FOUNDRY COMPANY 1039
been posted regularly every 90 days since February 1942,1E for the purpose of
calling this to the attention of hourly paid employees ( chainers).
Iby L. Hogan, general foreman of construction, when questioned if the
chainers could finish their work in 35 or 40 minutes after the trackmen com-
pleted their work, testified that chainers "never finished" their work. Hogan
testified further that he did not recall ever seeing chainmen go outside the
shop at substantial periods in advance of quitting time.
William Mac Lewis, presently a fitter in respondent's employ, and previously
a chainman at the Madison plant," testified that he never noticed the practice
of chainers quitting between 2:30 and 3 o'clock to wash up. Lewis, in contra-
diction to the testimony of Shipley that a time study revealed that trackmen
worked an average of 7 hours to complete their daily allotment of 20 cars,
testified that trackmen would get through at 3 o'clock, sometimes at 3:30, and
other times a little earlier or a little later, and that if they did not complete
their job by 3:30 they stayed until they finished ; that chainmen would then
have to stay after 3:30 to replace material.
Sam Brawley, assistant foreman in the steel erection department, and for-
merly crane director in the steel and wood erection departments where he
supervised chainers," testified on cross-examination that it was the custom
of chainers to leave the job about 10 minutes before quitting time.
In view of the indefinite nature of the testimony offered by the respondent
through its witnesses with respect to chainer's leaving their work before the
end of their shift to go to the washroom to change clothes, the undersigned
credits the testimony of Roper, Jeffries, Johnson, and Vaulx, who were in sub-
stantial agreement as to this practice, and finds that It was the custom and
practice of chainmen to go to the washroom to take showers and change clothes
from 2:30 to 3 o'clock and then wait for the whistle to blow before leaving
the plant.
Tobe Vaulx, chainer in the steel erection department and helper to Sam
Beard, lead chainman, testified that In his presence and that of another
employee, Earl Hogan, Beard told Brawley that he (Beard) had asked Roper
to join the Union but that Roper had not joined. Beard informed Brawley
that if Roper did not join the Union by Friday, the chainmen were not going
to work.'E
'E The respondent introduced as its exhibit in evidence the following notice
NOTICE
February 9, 1942.
All employees must be at their respective places in the plant and ready to start
work when whistle blows, and they must remain at their work until the whistle
blows at quitting time. Cranemen must be in their cranes ready to start operations
as outlined above, and any violations of this rule will result in dismissal of em-
ployee.
N H. SHIPLEY,
Asst District JLanagei
1E Lewis did not work at the plant during the latter part of June 1944 and the month
of July 1944.
17 Brawley held the position of crane director during the year 1944, when the govern-
ment order was being filled.
's This finding is based upon the undisputed testimony of Vaulx, which the undersigned
credits. Although Vaulx testified at first that this conversation took place about 2 weeks
before Roper's discharge , which would have placed this conversation after a work stop-
page which took place and which will hereinafter be discussed , he subsequently testified
regarding a second conversation which took place a day before the work stoppage and
which followed by about 1 week the conversation related above. The undersigned finds
that the conversation related above took place about a week or so before the work
stoppage.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About a week after this first conversation, according to the testimony of
Vaulx, he and Sam Beard were standing together at the crossover in the plant
when Brawley was passing by and Beard stopped him. Beard told Brawley
that Roper had not joined the Union and if he (Brawley) did not get rid of
Roper the men would not work any more. Brawley then told Beard "that he
would have to get something on him" and that if Roper went up to change
early they would have something on him and could then let him (Roper) go"
The following morning, after this second conversation between Brawley and
Sam Beard took place, the chainmen under Brawley's supervision engaged ill
a work stoppage" Brawley testified that when he came out on the job that
morning, the chainmen were not working and were arguing among themseive-
about "who they were working among." Brawley inquired as to what wit,
taking place and was told that the men would not work with Roper because
lie was not a member of the Union. Brawley, anxious to get production started,
then suggested 21 that he would transfer Roper to work with Sam Pipes, a lead
chainman in another section of the plant under Brawley's supervision R3 Roper
was then moved over to work with Pipes and the men went back to work.23
Roper testified that while the stoppage was in progress, Brawley came up
to him and said, "Walter, the boys don't seem to want to work with you, you
don't belong to the union." Whereupon Roper answered that it was his under-
standing that he did not have to join the Union to work in the plant. According
to Roper, Brawley then answered, "No, you don't have to join, but they don't
seem to want to work with you.""
On July 11 at about 3 o'clock, Roper went up to the washroom to change his
clothes after he had been told by his lead chainman Sam Pipes that the work
was completed and that he could do so." According to Roper's uncontradicted
and credited testimony, Pipes was at that time taking a shower in the same
locker room that Roper was in. Within 2 minutes after he had arrived in the
locker room," according to Roper, Brawley walked up the steps, looked around,
and then walked down again. Brawley did not say anything to Roper at that
time.
10 Brawley categorically denied that he told Sam Beard he would try to get something
on Roper, but failed to deny that he had discussed Roper's refusal to join the Union
with Beard From his demeanor on the witness stand Brawley impressed the under-
signed as an unreliable witness. Vaulx' testimony, on the other hand, was straight-
forward and in the main supported by convincing detail. Vaulx is still employed by the
respondent The undersigned does not credit Biawley's denial and finds that the state-
ments attributed to him in his conversation isith Beard were made substantially its
testified by Vaulx.
20 Although Roper testified that the stoppage took place about 8 days before his dis-
charge which would place the stoppage as having occurred on or about July 4, 1944, the
undersigned finds that the stoppage took place on the morning of June 27, 1944. The
finding in this iegard is based upon the testimony of John F Creed
Si Brawley recalled that lie talked kith a cioup of chainmen among whom were Sam
Beard, Leo Haynes, and Sam Pipes.
22 This section according to Brawley was where the sides on cars were being erected,
the wood erection department as differentiated from steel erection from which depart-
nient Roper was transferred.
"'The stoppage lasted about an hour
" Brawley denied that Roper said anytlunc to tun, of that he said anything to Roper
of any of his men about joining the Union The undersigned does not credit the denial
of Brawley and finds that the statements attributed to him were made substantially a,
testified by Roper
20It is not contended that Pipes was a supervisory employee Pipes was not called as
a witness The undersigned credits the uncontradicted testimony of Roper and finds
that Pipes told Roper that then work was completed at about 3 p. in. on July 11, and
that Roper could go to the washroom to change clothes at that time
28 Roper's locker 'a as right at the head of the steps to the locker room and just to one
side of it
AMERICAN CAR AND FOUNDRY COMPANY 1041
On the following morning, July 12, as Roper came into the plant and started
to go to the locker room, Brawley stopped him and told him he was wanted at
the office. According to the testimony of Roper which the undersigned credits,
the following conversation ensued :
I said, "What for?" And he [Brawley] said, "For changing your clothes
last night before the whistle blew." I said, "Well, we have been doing that
all the time." He said, "It makes no difference, you know you fellows are
doing day work and you are supposed to work right until the whistle blew."
I said the work was all done and Sam Pipes had told me I could change
my clothes. He said, "Well, I have told you fellows before you couldn't
change your clothes until the whistle, that is all, go over and get the time-
keeper to make out your time."
Roper thereupon went to the office and had the bookkeeper make out his
time. Roper thereafter spoke to Creed and told him the details of the incident.
Creed said he would investigate and if Roper's statement was true, he would
put him back to work. Roper called Creed the next day and was advised
that he (Creed) had investigated the case with Brawley and Hogan, that he
found the charge was substantiated, that Roper had been repeatedly given
orders not to leave before regular quitting time, and that he had violated the
orders of his foreman, and that Creed did not feel that he would take any
further action on the discharge."
Conclusions as to Preston Walter Roper's discharge
Within 15 days after the work stoppage Roper, who had refused to join the
Union-his refusal having resulted in the stoppage-was discharged.
It is the contention of the respondent that Roper had violated a company
rule when he left his position to go to the wash room before whistle time and
that for violation of this rule he was discharged. As was hereinabove found,
however, it was a custom and practice on the part of chainmen to leave their
work at about 2:30 to 3:00 o'clock to go to the washroom and then wait for
the whistle to blow before leaving the plant.
If it were to be assumed, as is contended by the respondent, that Roper did,
in fact, violate a company rule, then it appears clear from the testimony of
respondent 's witnesses that in discharging Roper for such a violation it singled
Roper out for drastic treatment not afforded to other persons who acted simi-
larly. Thus Hogan testified that prior to 1944, the respondent's action with
regard to employees who left their work early was to issue warning slips to
them and that in 1944 and thereafter when there was an acute labor shortage
even this practice was discontinued 2' Hogan knew of no instance in 1944,
other than the discharge of Roper, where respondent resorted to the drastic
measure of discharging an employee for leaving his work early?'
27 This finding is based upon a reconciliation of the testimony of Roper and Creed
Significantly, however, there is no evidence that the respondent accorded Roper a hearing
prior to his dismissal in accordance with its contract with the Union, Article VII, which
provides, inter alia, that "no employee shall be disciplined without a fair hearing by the
designated officer of the Company "
28 This finding is based on Hogan 's credited testimony in this regard
2e Creed stated that "possibly" two or three employees might have been discharged
immediately preceding the discharge of Roper His testimony in this regard cannot be
credited. According to Creed the responsibility for discharging employees rested with
the foreman. Hogan , therefore , himself a general foreman and in a better position to
know whether persons in his department were discharged , did not know of any other
employees who were discharged for leaving early. Creed was unable to identify the
persons claimed by him to have been discharged prior to the termination of Roper's
employment.
686572-46-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent had already suffered the consequences of one work stoppage
when it did not heed the demand of the Union to get rid of Roper. While the
Trial Examiner takes cognizance of the position in which the respondent was
placed as a re.5ult of the Union's demand and does not venture to speculate a,,
to whether the respondent feared another work stoppage if it continued Roper
in its employ, the fact remains from the credited testimony of Vaulx, that the
respondent had expressed its intention "to get something on Roper" and had
itself suggested the means whereby they could accomplish this fact. It is the
reasonable inference, therefore, viewed in the light of its expressed intention.
that the respondent took advantage of the fact that Roper left his position
early to go to the washroom and used this as a pretext for discharging him,
thus complying with the Union's demand. Under the circumstances, It Is not
without significance that Brawley did not look for Sam Pipes, even though
admittedly Pipes was not In his position when Brawley passed there, nor did
Brawley bother going to either of the two other washrooms to see If other
chainers or hourly paid employees were there. For all practical purposes the
respondent's expressed intention, except for the matter of the formal discharge,
was accomplished when Roper was seen in the washroom before whistle time
The Act does not grant the right to an employer to violate the Act because
of a threat of economic reprisal should he refuse to comply with a demand that
he do so. It is well established that "the Act prohibits unfair labor practices in
all cases. It permits no immunity because the employer may think that the
exigencies of the moment require infraction of the statute. In fact nothing in
the statute permits or justifies its violation by the employer.",*
The record is replete with evidence that the respondent did not require its
employees to join a union in order to work in the plant and, as a matter of
fact, evidence was produced by the respondent that several chalners were not
members of the Union and the respondent did not take action against them.
The Board has repeatedly held that "a complete housecleaning of union mein-
hers and supporters is not essential to a finding that some employees have
been discriminated against." tt So, In a like manner here, the fact that some
non-union employees were not discharged does not necessarily rebut the evi-
dence that Roper was discharged at the insistence of the Union. It Is immaterial
that the respondent did not impose any condition upon Roper while he was
employed and made no threat that he must join the Union. Where the discharge
is the result of yielding to pressure exerted because an employee has refused
to join a union, the Act is, nevertheless, violated."
It Is the respondent's further contention raised during the course of the
hearing and in its brief that the word "encourage" in Section 8 (3) of the Act
is used in connection with the general purposes to be accomplished by the Act,
namely to prevent anti-union activities on the part of employers. Further, that
the word "encourage" clearly contemplates a situation where an employer
encourages an employee to join a company-controlled union or to join one of
two unions which may claim or have an interest in the plant. But, the re-
spondent argues further, where the employee is not, however, a member of any
other union or where the union representing employees of the employer is
clearly not a company controlled union, then efforts on the part of an employer
to encourage an employee to join the union representing other employees could
xo 1 L. R B v Star Publtshtnp Co . 97 F. (2d) 465 (C C A. 9), enforcing 4 N L.
It B 498
4L Matte? of Stewart Warner Corpot atton, 55 N L R II 593, 610 ; Matter of Reynolds
Corporation, 61 N. L. R. B. 1446; 16 N L R. B. 452.
w Matter of Cape Cod Trawling Corporation. 23 N. L R. B 208
AMERICAN CAR AND FOUNDRY COMPANY 1043
not constitute a violation of the Act, since no anti-union policy on the part of
the company could possibly be involved In such action. Therefore, the respond-
ent submits, that since Roper was not a member of any other union and since
the Brotherhood of Railway Carmen of America is not a company controlled
union, the discharge of Roper on the ground that he refused to join the Union
would not constitute a violation of the Act and there are no grounds upon which
to invoke the jurisdiction of the Board.
Thus in substance the respondent argues that in discharging an employee for
refusing to join a labor organization It is not violating the Act, if there is but
one labor organization seeking to or representing its employees unless such a
labor organization is company controlled or dominated.
The undersigned finds no merit in this contention. It is specifically provided
that it shall be a violation if an employer by discrimination in regard to hire
or tenure of employment or any term or condition of employment encourages
or discourages membership in a labor organization. Nothing in the Act suggests
that it be a prerequisite before an employer may be found to have violated the
Act that there be more than one labor organization Involved or if there be
but one that it be a company-dominated organization. Except as otherwise
provided in the proviso' to Section 8 (3), an employer may not utilize his
economic control over his employees to compel them to bestow their allegiance
to any labor organization of his choosing whether or not that labor organization
is free from his control or domination. Inherent in the meaning of Section
8 (3) is the right of employees to determine for themselves without hindrance
from their employer when and with what labor organization they wish to affili-
ate, and to hold that an employer may exercise the most powerful weapon at
his command, namely, of discharging an employee for refusing to comply with
his wishes, would be to sanction a control by the employer over his employees
which was surely not contemplated by the Congress.
Upon the record as a u Bole, the undersigned is convinced and finds that Roper
was discriminatorily discharged on July 12, 1944, for the reason that he refused
to join the Brotherhood of Railway Carmen of America, AFL, and that the
respondent by thus discharging Roper discriminated with regard to his hire and
tenure of employment, thereby encouraging 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 in violation of Section 8 (3) of the Act.
IV 'tHE EFFECT OI rut' VNIAIR LABOR PRACTICES UPON CONtMERCE
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 cmanterce and the free flow of commerce.
V. THE REJIEDV
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
33 "Nothing in the Act * * * shall preclude an employer from making an agree-
ment with a labor organization [not established, maintained, or assisted by any action
defined in the Act as an unfair labor practice] to require as a condition of employment
membership therein if such a labor organization is the representative of the employees
as provided in Section 9 (a) in the appropriate collective bargaining unit covered by
such agreement when made '
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having found that the respondent has violated Section 8 ( 1) and (3) of the
Act by discharging Preston Walter Roper, the undersigned shall recommend that
respondent be ordered , pursuant to the mandate of Section 10 (c), to cease and
desist therefrom . The undersigned also predicates his cease and desist recom-
mended order upon the following findings : The record is silent as to whether
Roper is or desires to become a member of any other labor organization. He
has a right under the Act to join a labor organization of his own choosing. The
respondent has interfered with that right . As the Circuit Court of Appeals
for the Fourth Circuit has stated, the "discriminatory discharge of an employee
* * * goes to the very heart of the Act." a' Therefore , because of the respond-
ent's unlawful conduct , the undersigned is convinced that the unfair labor prac-
tices found are persuasively related to the other unfair labor practices pro
scribed and that danger of their commission in the future is to be anticipated
from the respondent 's conduct in the past ." The preventive purpose of the
Act will be thwarted unless the order is coextensive with the threat. In order
therefore to make effective the interdependent guarantees of Section 7, to
prevent a recurrence of unfair labor practices , and thereby to minimize indus-
trial strife which burdens and obstructs commerce , and thus effectuate the
policies of the Act, the undersigned shall recommend that the respondent cease
and desist from in any manner infringing upon the rights guaranteed in Sec
tion 7 of the Act. He shall also order the respondent to take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the respondent discriminated as to the hire and tenure
of employment of Preston Walter Roper. In order to effectuate the policie,
of the Act, it will be recommended that the respondent offer him immediate
reinstatement to his former or substantially equivalent position , without preju-
dice to his seniority or other rights and privileges . It will be further recom-
mended that the respondent make whole Preston Walter Roper for any loss of
pay he may have suffered by reason of the respondent 's discrimination against
him by payment to him of a sum of money equal to the amount he normally
would have earned as wages from the date of his discharge to the date of re-
instatement or offer of reinstatement, less his net earnings" (luring that period.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAw
1. The Brotherhood of Railway Carmen of America, A. F. L, affiliated with
the American Federation of Labor, 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 employment of
Preston Walter Roper, thereby encouraging membership in the Brotherhood of
Railway Carmen of America, AFL, the respondent has engaged in and is engag-
34 N. L R B v. Entwsstle Manufacturing Company, 120 F (2d) 532, 536 (C C. A. 4)
See also N. L. IL B v Automotmve Maintenance Machinery Company, 116 F (2d) 350,
353 (C. C A. 7)
a+ See N. L . R. B. v Empress Publishing Company, 312 U. S 426.
sa 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 his un
lawful discharge and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company, 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.
AMERICAN CAR AND FOUNDRY COMPANY 1045
ing in unfair labor practices within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining , and coercing their employees in the exer-
cise 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 within the
meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that the respondent American Car and Foundry Com-
pany, Madison, Illinois, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Encouraging membership in the Brotherhood of Railway Carmen of
America, AFL, by discharging and refusing to reinstate any of its employees
or in any other manner discriminating in regard to their hire and tenure of
employment or any terms or conditions of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza
tions, 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 undersigned finds will
effectuate the policies of the Act
(a) Offer to Preston Walter Roper immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority
or other rights and privileges ;
(b) Make whole the said Preston Walter Roper in the manner set forth in
the Section entitled "The Remedy" for any loss of pay he may have suffered
by reason of the respondent's discrimination against him ;
(c) Post at its plant at Madison, Illinois, copies of the notice attached
hereto and marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Fourteenth Region, after being signed by the re-
spondent's representative, shall be posted by the respondent immediately upon
the receipt thereof and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places including all places where notices to employees are
customarily posted Reasonable steps shall be taken by the respondent to
insure that said notices are not altered, defaced, or covered by any other
material ;
(d) Notify the Regional Director for the Fourteenth Region in writing
within ten (10) days from the date of the receipt of this Intermediate Report
what steps the respondent has taken to comply therewith.
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent
to take action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Sec-
tion 32 of Article II of said Rules and Regulations, file with the Board, Rocliam-
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
beau Building , Washington 25, D. C., an original and four copies of a statement
in writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding ( including rulings upon all motions or
objections) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of
exceptions and/or brief, the party or counsel for the Board tiling the same
shall serve a copy thereof upon each of the other parties and shall file a copy
with the Regional Director As further provided in said Section 33, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of
the order transferring the case to the Board.
SIDNEY LINDNER,
Trial Examiner.
Dated July 28, 1945.
"APPENDIX A"
NOTICE TO ALL EMPLOYEES PURSUANT TO THE RECOMMENDATIONS OF A TRIAL
EXAMINER
of the National Labor Relations Board, and in order to effectuate the policies
of the National Labor Relations Act, we hereby notify oui employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist labor organizations, to bargain collectively
through representatives of their oww n choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
WE WILL OFFER to the emplo,ee named below immediate and full reinstate-
ment to his former or substantially equivalent position without prejudice
to any seniority or other rights and privileges previously enjoyed, and
make him whole for any loss of pay suffered as a result of the
discrimination.
Preston Walter Roper.
AI.i, our employees are free to become or remain member, of any labor or-
ganization of their own choosing We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any
employee because of his refu aal to join Brotherhood of Railway Carriers of
-\luerica, API.
AMERICA? (BAR AND h'ol'NDRI COIEPAN),
F. m Moyer.
.. ...... .......... ... ..........Dated .. ... .............. By
(Representative ) (Title)
NoIE: Any of the above-n:used employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced , or covered by any other material,