Douglas Aircraft Company, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1938

10 N.L.R.B. 242 (N.L.R.B. 1938)

In the Matter of DOUGLAS AIRCRAFT COMPANY, INC. and UNITED AUTO-
MOBILE WORKERS OF AMERICA, INTERNATIONAL UNION, DOUGLAS
LOCAL No. 214
In the Matter of DOUGLAS AIRCRAFT COMPANY , INC. and LOCAL No. 311,
INTERNATIONAL ASSOCIATION OF MACHINISTS
Cases Nos. 0-268 and C-269, respectively:Decided December 7, 1938
Aircraft and Parts Mai'ifacturing Industry-Interference , Restraint, and
Coercion : expressed opposition to labor organization ; engendering fear of loss
of employment for union activity-Company-Dominated Union: domination of
and interference with formation and administration ; support ; sponsoring and
fostering growth of ; activities of supervisory employees in -behalf of; change
in form of , at suggestion of employer; disestablished , as agency for collective
bargaining-Discrimination : discharges ; for union membership and activity;
after reinstatement following strike; charges of, not sustained as to certain
employees ; non-reinstatement following strike ; delay in reinstatement of
strikers ; demotion , upon reinstatement-Strike: result of employer 's unfair
labor practices ; sit-down; participation in, no bar to reinstatement-Reinstate-
ment Ordered : discharged employees ; strikers-Back Pay: awarded ; discharged
employees , strikers.
Mr. Ralph T. Seward, and Mr. David Persinger, for the Board.
Mr. H. W. Elliott, of Los Angeles, Calif., for the respondent.
James Carter ctr John Packard, by Mr. Marshall Ross, of Los
Angeles, Calif., and Davidow d Davidow, by Mr. L. S. Davidow, of
Detroit, Mich ., for the U. A. W. A.
Mr. Paul Hutchings, of Washington, D. C., for the I. A. M.
Mr. John J. Ford, of Los Angeles, Calif., Mr. Fred C. Woody, of
Brentwood Heights, Calif., and Mr. Robert 0. Johnson, of Los An-
geles, Calif ., for the A. W. U.
Mr. Herbert Fuchs, of counsel to the Board.
O
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon' charges and amended charges duly filed by United Auto-
mobile Workers of America, International Union, Douglas Local No.
214, herein called the U. -A. W. A., the National Labor Relations
10 N. L R. B, No. 18.
242
DECISIONS AND ORDERS 243
Board, herein called the Board, by Towne Nylander, Regional Di-
rector for the Twenty-first Region (Los Angeles, California), issued
its complaint dated May 22, 1937, against Douglas Aircraft Company,
Inc., Santa Monica, California, 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),
(2), and (3) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act.
Upon charges duly filed by Local No. 311, International Associa-
tion of Machinists, herein called the I. A. M., the Board, by the said
Regional Director, issued another complaint dated the same day
against 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 (2) and Section 2 (6) and (7) of
the Act.'
The complaint and accompanying notice of hearing in each case
were duly served upon the respondent, upon the U. A. W. A., upon
the I. A. M., and upon Aircraft Workers Union, Inc., herein called
the A. W. U., a labor organization named in the complaint as being
and having been dominated, interfered with, and supported by the
respondent.
On May 24, 1937, the Board, acting pursuant to Article II, Section
37 (b), of National Labor Relations Board Rules and Regulations-
Series 1, as amended, ordered that the cases be consolidated for the
purpose of hearing.
The respondent duly filed an answer to each complaint, denying
the commission of the unfair labor practices charged.
Pursuant to notice, a hearing was held at Los Angeles, California,
from June 7 to August 20, 1937, before Rollin McNitt, the Trial
Examiner duly designated by the Board. The Board, the respondent,
and the U. A. W. A. were represented by counsel, and the I. A. M.
by a general vice president; all participated in the hearing. At the
opening of the hearing, the A. W. U. appeared by counsel and made
a motion for leave to intervene. The motion was granted. There-
upon, the A. W. U. filed answers denying the allegations of the com-
plaints which charge the respondent with interference with, domina-
tion, and support of the A. W. U., and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues was afforded all
parties. Numerous motions and objections to the admission of evi-
dence were made and ruled upon at the hearing. At the conclusion
The final paragraph of the complaint issued upon charges filed by the I A M_
alleges that the respondent has committed unfair labor practices within the meaning
of Section 8 (1), (2), and ( 3) of the Act . The inclusion of Section 8 (3) at this point
was clearly inadvertent and we shall disiegaid it
244 NATIONAL LABOR RELATIONS BOARD
of the hearing the Trial Examiner reserved decision upon a motion
made by counsel, for the A. W. U. that the complaints, in so far- as
they allege commission of unfair labor practices within the meaning
of Section 8 (2) of the Act, be dismissed. -
On September 8, 1937, the Board, acting pursuant to Article II,
Section 37 (a), of National Labor Relations Board Rules and Regu-
lations-Series 1, as amended, ordered the proceeding to be trans-
ferred to and continued before it. The Board has reviewed the rul-
ings of the Trial Examiner upon motions and objections to the admis-
sion of evidence made at the hearing and finds that no prejudicial
errors were committed. The rulings are hereby affirmed. Pursuant
to permission granted by the Board, the A. W. U. filed a brief in
support of the motion, referred to above, to dismiss certain allegations
of the complaints. The motion is hereby denied.
On April 20, 1938, the Board made and issued findings of fact,
conclusions of law, and an order in the case; on May 16, 1938, it
vacated and set aside its said findings, conclusions, and order; and
on June 8, 1938, it issued proposed findings of fact, proposed conclu-
sions of law, and a proposed order, wherein it found that the respond-
ent had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7)
of the Act, and ordered the- respondent to cease and desist from such
unfair labor practices and to take certain affirmative action remedial
of their effect. The respondent and the A. W. U. filed exceptions to
the Board's proposed findings of fact, conclusions of law, and order,
and the respondent filed a brief in support of its exceptions. Pur-
suant to notice, a hearing for the purpose of oral argument was held
before the Board at Washington, D. C., on August 18, 1938. The
respondent, the U. A. W. A., and the I. A. M. were represented by
counsel and participated in the argument. The Board has fully
considered the exceptions to its proposed findings of fact, proposed
conclusions of law, and proposed order and, in so far as they are
inconsistent with the findings, conclusions, and order set forth-below,
finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The-respondent is a Delaware corporation having its office and
manufacturing plant at Santa Monica, California. It is engaged in
the business of designing, engineering, developing, manufacturing,
and selling aircraft and aircraft parts for military and for transport
use. -
DECISIONS AND ORDERS 245
The principal raw materials purchased by the respondent are sheet
duralumin, sheet steel, bar and tube steel , bar and tube driving, driv-
ing forges, steel forges, duralumin castings, paints, varnishes, fabrics,
cotton, wool, and glass. Engines, instruments, propellers, and rub-
ber tires are purchased by the respondent ready for installation.
More than 50 per cent of all the raw materials, and more than 50
per cent, each, of the duralumin, steel, glass, fabrics, engines, instru-
ments, and propellers used by the respondent are purchased outside
the State of California.
The respondent manufactures principally pursuant to contract.
About 70 per cent of its production is sold to various agencies of
the United States Government, including the War, Navy, and Post
Office Departments, and the Coast Guard. Planes manufactured
for the Government are delivered ready for flight at the respondent's
plant and are immediately ferried by Government pilots to Govern-
ment air depots in various parts of the United States. Spare parts
manufactured for and delivered to the Government at the respond-
ent's plant are similarly ferried to Government air depots.
The respondent also manufactures planes for a number of com-
mercial air lines . Douglas planes are in operation on air lines in
North and South America, Europe, Africa, Asia, and Australia.
Planes manufactured by the respondent for Transcontinental and
Western Air, Inc., American Airlines, Eastern Air Lines, Pan Amer-
ican Airways, and other American lines are delivered by the re-
spondent's pilots at points outside the State of California. Planes
destined for an air line in Holland are delivered in New York City
for shipment.2
The respondent's sales for 1936 aggregated over $7,800,000. On
July 1, 1937, it occupied over 700,000 square feet of factory floor
space, had over $30,000,000 in unfilled orders, employed over 6,500
workers in more than 80 departments, and ranked first among Ameri-
can aircraft manufacturers in volume of business and size of plant.
In its answers to the complaints, the respondent admits an allega-
tion that it purchases a large proportion of the materials used by
it in manufacture, and sells a large proportion of its products, outside
the State of California.
2 At the time of the hearing , the respondent owned all the capital stock of The
Northrop Corporation , a California corporation similarly engaged in the manufacture and
sale of aircraft at El Segundo , California . The Northrop Corporation uses the same raw
materials and manufactured parts as does the respondent , and more than 51 per cent of
the materials and parts used by it are purchased outside the State of California. Its
products are sold principally to United States Goveinment departments and are delivered
at El Segundo ready for transfer to Government air depots. It also has as customers the
Bristol Airplane Company , the Swedish Air Board , and the Amtorg Trading Company
The business of the Northrop Corporation is more fully described in Matter of No7thtop
Corporation and United Automobile Workers, Local No. 229, 3 N L. R B 228
147841-39-vol 10-17
246 NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATIONS INVOLVED
United Automobile Workers of America, International Union,
Douglas Local No. 214, is a labor organization affiliated with the
Committee for Industrial Organization. It admits to membership
employees of the respondent. Persons having authority to hire and
discharge are excluded by the constitution of the International
Union.
Local No. 311, International Association of Machinists, is a labor
organization affiliated with the American Federation of Labor. It
excludes from membership employers and persons having authority
to hire and discharge. It has members among the employees of the
respondent.
Aircraft Workers Union, Inc., is an unaffiliated labor organization.
Eligibility to membership, originally limited to employees of the
respondent, was extended in March 1937 to all aircraft workers em-
ployed in California. Employees of the rank of assistant supervisor
or higher are excluded from membership.
III. THE UNFAIR LABOR PRACTICES
A. Domination of the A. W. U.
The complaints allege that in November 1933 the respondent caused
the organization among its employees of an association known as
"Douglas Employees Association," herein called the D. E. A.; that
this association thereafter became incorporated under the name of
"Douglas Employees Association, Inc."; that in March 1937 by amend-
ment of its articles of incorporation, the association changed its name-
to "Aircraft Workers Union, Inc."; that Aircraft Workers Union,_
Inc., is a labor organization ; and that the respondent has, since the
formation of said labor organization, dominated it, interfered with its-
administration, and contributed support to it.
The answers admit that the respondent caused the organization of
the D. E. A.; deny knowledge of the alleged incorporation of the
D. E. A., or of its alleged change of name; allege that the A. W. U. is a
separate and distinct organization from the D. E. A.; admit that the-
A. W. U. is a labor organization; and deny the domination, interfer-
ence, and support charged.
The organization of the D. E. A., admittedly brought about by the-
respondent, was accomplished at two meetings held on successive days-
in the fall of 1933. Each department was instructed to send a repre--
sentative to the office of Donald W. Douglas, the respondent's presi-
dent. There the representatives met with the president, the general
manager, the plant superintendent, and a number of other supervisory
officials. They listened to Douglas' suggestions as to the form and-
DECISIONS AND ORDERS 247
scope of the proposed association, and they elected its first officers.
For the time spent at these meetings the representatives were paid at
the regular rates.
Late in 1933 an affiliate of the American Federation of Labor began
to organize at the Douglas plant, but it was unable to compete with
the new D. E. A. In August 1934 the latter won an election conducted
by the Los Angeles Regional Labor Board, and was thereafter recog-
nized by the respondent as the representative of its employees for the
purposes of collective bargaining.
The respondent's interest in the organic form of the D. E. A. did
not end with sponsorship. Douglas testified that after the enactment
of the National Labor Relations Act he "very possibly" made sugges-
tions to the D. E. A. as to whether it qualified thereunder. He recom-
mended that it incorporate. He testified, "I told them that I thought
they should have a real object in life, and that I thought the best ob-
ject was, rather than fighting with me, would be to go out, and spread
their type of union throughout our industry. . ." He suggested that
the association change its organization to something "a little more
formal."
The adoption of a constitution and bylaws by the representatives on
October 2, 1935, apparently was the association's first step in making
its organization "a little more formal." The purpose of the D. E. A.
was declared to be threefold : to establish a method for adjusting differ-
ences between employees and the management; "to provide a means of
friendly and lasting cooperation between employees and management
on the basis of mutual confidence and understanding"; and to provide
for the social welfare of the employees through recreation and educa-
tion. Eligibility to membership was restricted to employees of the
respondent. Provision was made for a board of representatives to be
elected by the departments, and for officers and an executive com-
mittee.
On December 31, 1935, in further pursuance of the advice of Doug-
las, the D. E. A. incorporated under the laws of the State of California,
and took the name "Douglas Employees Association, Inc." By the
terms of the articles of incorporation, the constitution and bylaws of
the old association became the bylaws of the new corporation.
The activities of the D. E. A. were principally athletic and social in
nature. It was permitted the use of the respondent's bulletin boards
in the various departments to advertise those activities. The associa-
tion also took up individual grievances and made several demands for
blanket wage increases which Douglas refused. Funds of the associa-
tion were derived from membership dues of 25 cents per month, which
were deducted from the pay checks of members pursuant to signed
authorizations filed with the respondent.
248 NATIONAL LABOR RELATIONS BOARD
The evidence proves overwhelmingly that the respondent -dom-
inated, interfered with, and contributed support to the D. E. A. both
before and after the effective date of the Act. George A. Strompl,
the factory superintendent, testified that from the association's incep-
tion until its reorganization in 1937 lie, Douglas, and other officials
were honorary members of the D. E. A., and that from time to time
they met with its officers and, representatives, made suggestions to
them and worked with them. Other company officials, notably Clair
Sweney, the personnel manager, were members. Many employees
testified that they had been asked to join the D. E. A. by an employee
of the personnel office at the time of applying for employment. One
employee claimed to have been solicited by Sweney himself. Al-
though Sweney denied having solicited membership in the D. E. A.
or having permitted such solicitation by members of his staff, he
admitted that it was the custom of his office to transmit the names of
all new employees to the D. E. A. so that it might get in contact
with them. A number of witnesses were solicited while at work, not
only by department representatives of the D. E. A., but also, in some
cases, by supervisory employees. Strompl testified that employees
on the night shift were permitted to attend D. E. A. meetings during
working hours without loss of pay.
Contributions to a welfare fund supervised by a member of the
executive committee of the D. E. A. constituted another method
utilized by the respondent to support the D. E. A. Welfare activi-
ties were begun by the D. E. A. late in 1935. They consisted of aid
to sick, injured, and needy employees by way of gifts and loans.
In the beginning, these activities were supervised for the D. E. A.
by J. L. Stevenson, a welder, on his own time, before and after work-
ing hours. Later, the respondent relieved Stevenson of his duties
as a welder and employed him as a full-time welfare worker. This
entailed a reduction in Stevenson's earnings which was made up by
the D. E. A. The welfare fund consisted of contributions by the
respondent and by the D. E. A. ' Although its benefits were stated to
be available to all employees, regardless of affiliation, one man who
needed a loan was advised by his supervisor that he should join the
D. E. A. if he wanted to get it. When Stevenson transferred from
welding to full-time welfare work, he was given a desk in the per-
sonnel office. At his desk he signed up many members for the
D. E. A., including -nmen who had cone to him as applicants for
welfare loans. The prestige gained by Stevenson as combined dis-
penser of largesse and member of the D. E. A. executive committee
later stood the respondent in good stead.
In December 1936 a stockroom clerk named N. G. Collins, who
had campaigned on the platform that he would "either make some-
DECISIONS AND ORDERS 249
thing out of the D. E. A. or wash it out altogether," was elected presi-
dent. Collins had joined the D. E. A. at its inception and had served
several terms as department representative. He testified that he was
dissatisfied with the organization because of its almost complete re-
striction to social-activities, and that his views were generally known
among the men. He also disapproved of the U. A. W. A., which had
begun organizing at the Douglas plant, because he considered the
Committee for Industrial Organization with which it was affiliated
too radical, and his plans for the reorganization of the D. E. A. in-
cluded closing the plant against that organization.
After his election and before he took office, Collins told T. C.
McMahon, the respondent's secretary, of his plans for making the
D. E. A. an independent organization. He testified, however, that
the plans were kept secret from the membership because he did not
want the U. A. W. A. to learn of them. In January 1937 a committee
was appointed to revise the association's constitution and bylaws.
They consulted a lawyer recommended by Stevenson and retained him
to set up an organization in compliance with the Act. At a meeting
on February 17, 1937, the representatives, without informing the
membership, amended the articles of incorporation of the D. E. A.
by broadening its purposes to include more of the functions ordinarily
performed by trade unions, and by increasing the number of repre-
sentatives. This was the first step in the projected reorganization.
Collins and a committee called upon Douglas and other company
officials and informed them of the changes made. At the same time,
without having discussed the matter with the representatives or the
membership, they presented the management with a set of demands.
Demand was made for recognition of the D. E. A., for a reclassifica-
tion of hours and rates, and for a blanket wage increase. This meet-
ing occurred on February 19.
On February 23 the U. A. W. A. called a strike at the plant, which
will be discussed in more detail below. When the plant closed at
noon a number of strikers remained, within. They were evicted on
the afternoon of February 25. The plant reopened on March 1, but
the strike continued until March 11. Fourteen hundred employees
participated.
The D. E. A. was intensely hostile to the strike. Its leaders im-
mediately initiated a back-to-work movement. At a D. E. A. mass
meeting held on February 24, while the strikers were still inside the
plant, ballots were distributed, reading "DO YOU WANT TO GO
BACK TO WORK WITH THE D. E. A. ? ", and providing spaces
for a "yes" or "no" vote and for the voter's clock and department
numbers. Collins, who was largely responsible for this poll, testified
that the D. E. A. received 3,300 responses, all in the affirmative. Col-
250 NATIONAL LABOR RELATIONS BOARD
Tins had been conferring with the management upon ways and means
of getting the men back to work. He submitted the result of the poll
to Douglas as proof that the majority of the men desired to return.
Douglas apparently desired further evidence. Thereupon, the D. E.
A. circulated a petition asking Douglas to reopen the plant. This
effort, it was testified, secured 3,600 signatures. Confronted with the
result of the circulation of petitions, Douglas agreed to open the plant
on March 1.
Stevenson, the man in charge of the welfare fund, testified that
during the strike he divided his time between welfare work and in-
ducing employees to sign petitions. Although there is no testimony
that Stevenson was paid for the period during which the plant was
closed, his control of funds contributed jointly by the respondent and
the D. E. A. undoubtedly lent persuasiveness to his efforts on behalf
of the back-to-work movement. In a newspaper advertisement, the
respondent announced that its resumption of operations was in
response to the petitions which had been circulated by the D. E. A.
On March 2, the day after work resumed, Douglas granted a
blanket 5 cents per hour wage increase in response to the demand
made on February 19 by the D. E. A. Inasmuch as the association's
earlier wage demands had always been refused, and inasmuch as the
U. A. W. A. strike was still in effect, the inference arises that by
granting the increase at this time Douglas hoped simultaneously to
reward and encourage the loyal D. E. A. and to break the striking
U. A. W. A.
After the strike, the D. E. A. completed its reorganization. New
representatives and officers were elected. Collins refused the presi-
dency, but remained a member of the executive committee. The
bylaws were drastically revised ; officers were required to leave the
respondent's employ and to become salaried employees of the asso-
ciation; the field of membership was extended to aircraft workers
throughout California, and restricted to employees below the rank
of assistant supervisor. On March 17, 1937, by an amendment to
the articles of incorporation, the name of the association was changed
to "Aircraft Workers Union, Inc." At the time of the hearing the
A. W. U. had 3,300 dues-paying members.
The respondent and the intervenor point out that, with the comple-
tion of the reorganization, a number of early practices were aban-
doned. The respondent assumed complete control of welfare work,
raising Stevenson's salary to make up for the discontinuance of the
association's contribution; officials and supervisory employees be-
came ineligible and ceased to be members; dues were increased to 50
cents a month, and the respondent no longer deducted them from the
DECISIONS AND ORDERS 251
pay checks of members; and the social side of the association's ac-
tivities was curtailed.
Strompl warned the newly elected president not to embarrass the
company by seeking further favors, or by violating plant rules. The
A. W. U. responded by instructing its representatives and members
to refrain from all union activities on company time. Collins testified
that while such activities had gone on under the D. E. A., they
ceased with the advent of the A. W. U.
Several supervisory employees testified that plant rules forbade
such activities, and that they applied those rules equally to both
unions. The respondent had occasion to reprove both organizations
for the unauthorized use of company bulletin boards. Apparently
for the purpose of appearing impartial, it addressed a letter relating
to conditions of reinstatement of strikers to the presidents of both
unions, although the members of the A. W. U. had refrained from
striking and had fought the strike.
On the other hand, the record is replete with evidence that, with
the advent of the U. A. W. A., the respondent augmented its early
support of the D. E. A. by discrimination in favor of its members
and against members of the U. A. W. A. Douglas kept himself in-
formed of the doings of the U. A. W. A., but directed no inquiries to
be made as to whether D. E. A. or A. W. U. activities were conducted
on company time. Thus, the record is bare of an instance where a
member of the D. E. A. or the A. W. U. was disciplined for violation
of the rules, whereas U. A. W. A. members, as will be seen, were sub-
jected to discharge, both before and after the strike, for such infrac-
tions as absence from post, talking too much, and "too much horse-
play," under circumstances leading to the belief that union activity
was the real cause.
Nor were the rules rigidly observed by the A. W. U. In connection,
especially, with the reorganization in March many witnesses told of
distribution of literature, solicitation of membership, collection of
dues, distribution of ballots, and conduct of elections by A. W. U.
offici;.ils and members during working hours, and often in the presence
of supervisors. Witnesses for the respondent met this testimony by
denying either that the instances occurred, or that the rules permitted
their occurrence, or that supervisory employees sanctioned them, or
by a combination of such denials. Yet the conclusion is inescapable
from all the evidence that such activities took place which could have
been prevented-which were, in short, tacitly condoned.
On June 18, 1937, during the pendency of the hearing before the
Board, Douglas addressed a meeting of his employees, then number-
ing 6,300. He chose for his subject "The Much Discussed Wagner
0
252 NATIONAL LABOR RELATIONS BOARD
Act." His speech, under the pretext of explaining the Act, subtly
reiterated his preference for the A. W. U., and his distaste for the
U. A. W. A.3 It suggested that if the Board should disestablish the
A. W. U. Douglas employees 'might with propriety reincorporate it
or reorganize it further, taking care to accomplish "technical" com-
pliance with the Act.' It necessarily had the twofold effect of dis-
couraging membership in the U. A. W. A., and of encouraging ad-
herence to the form of organization Douglas had foisted upon the
majority, the corporate, unaffiliated form of the A. W. U.
Taking into consideration the former character of the A. W. U.,
we think that Douglas' address alone went far to nullify such at-
tempts as are alleged to have been made in good faith to liberate
the A. W. U. from domination. We find that it constituted not only
interference with the right of self-organization, within the meaning
of Section 8 (1) of the Act, but also the contribution of support to
a labor organization within the meaning of Section 8 (2).
Near the conclusion of the hearing, there was introduced in evi-
dence a form of contract which, Douglas stated, the respondent would
enter into with a labor organization. The form provides for a cor-
porate labor organization and Douglas testified that the respondent's
policy is opposed to entering into a written agreement with an un-
incorporated union. Douglas was undoubtedly aware that only one
of the three labor organizations at the plant, and that one at his
suggestion, had chosen the corporate form. In the respondent's
8 Douglas said, in part :
The Act defines labor organization as follows : "The term 'labor organization' means
any organization , of any kind , or any agency or employee representation committee
or plan , in which employees participate , and which exists for the purpose in whole
or in part , of dealing with employers concerning grievances , labor disputes , wages,
rates of pay , hours of employment, or conditions of work ." Now notice in this
definition that the Act clearly states that a labor organization is an d'rganization of
any kind, or any agency or employee representation or plan in which employees
participate for the purpose of dealing with employers The Act does not say that a
labor organization must be national an scope nor that it must be organized solely for
collective bargaining . In other words , an employee's social or athletic club could be
a labor organization if part of their announced and formulated purpose was to act
as a labor organization . [ Italics supplied ]
Speaking of Section 7 of the Act, he said :
This section says at once that employees have the right to self-organization. , I
take this to mean that they can form their own organization wihout having to
include in it any one who is not an employee , no matter who it is, be he an em-
ployer or an outsider of any kind , including a professional labor organizer . It says
the employee can form, join or assist labor organizations . If he can form one it
strikes me he can create a new kind of labor organization and hence might even be
permitted to organize such an organization as one that is only concerned with his
good and not with the well being or disputes involving employees of other organiza-
tions and other and more humble trades . [ Italics supplied.]
4 "If a National Labor Relations Board declares a so-called company union illegal and
barred from bargaining collectively for its members , there is, however , nothing to pre-
vent such men from forming another organization to represent them, or recognizing their
organization and ceasing in every way from committing any technical violation on which
that organization had originally been disqualified."
DECISIONS AND ORDERS 253
policy is further evidence of its assistance to the A. W. U. at the ex-
pense of all other labor organizations.
We have seen that the A. W. U. is the D. E. A. under a new name
and not, as pleaded by the respondent, "a separate and distinct or-
ganization." The D. E. A. was fostered and consistently favored by
the respondent. Its every change in form followed the pattern laid
down by Douglas (even to including other aircraft workers in its
membership). Douglas promptly rewarded its loyalty during the
strike by granting concessions theretofore withheld. Although most
of the evidences of employer domination were suppressed in the course
of the association's reorganization, there persist evidences of favorit-
ism and of support which, in view of the organization's long history
of domination, will necessarily render it further subject to Douglas'
will. The A. W. U. is not capable of serving the employees as their
genuine representative for the purposes of collective bargaining.
We find that the respondent has dominated and interfered with
the formation and administration of the A. W. U., and has con-
tributed support to it, thereby interfering with, restraining and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. Discriminatory discharges and refusals to reinstate
1. Events preceding the U. A. W. A. strike
Western Mechanics Industrial Union, a labor organization affiliated
with United Automobile Workers of. America, International Union,
started organizing at the Douglas plant in the fall of 1936. Its
efforts were fairly successful. An organization meeting held on
January 5, 1937, was attended by 500 workers. On February 9, the
International Union granted a separate charter to Douglas Local No:
214.
Douglas admitted that he was aware of the activities of Western
Mechanics Industrial Union prior to 1937, having informed himself
from several sources (including an intelligence unit employed by him
to discover and report sabotage and "radical activities") that the
organization included some Douglas employees.
Supervisory employees of the respondent sought, from the start,
to discourage these activities. A number of U. A. W. A. members
testified that their supervisors had spoken to them derogatorily of
the Committee for Industrial Organization, and favorably of the
D. E. A., some going so far as to threaten to discharge men who
talked about the U. A. W. A. or attended its meetings. Several men,
also, were individually warned to desist from activities on behalf of
the U. A. W. A.
254 NATIONAL LABOR RELATIONS BOARD
During February the respondent discharged Harry E. Brucker,
Fred W. Schwabe, and Sidney V. Ring, three U. A. W. A. members.
The complaint issued upon charges filed by the U. A. W. A., as
amended at the hearing, alleges that these men were discharged for
the reason that they had joined and were active in that organization,
and that the U. A. W. A. strike which began on February 23 was a
direct result of their discharge.
No detailed testimony was given concerning the employment or
discharge of Schwabe. We shall review the evidence relating to the
employment and the circumstances of the discharge of Brucker and
Ring.
Harry E. Brucker went to work for the respondent in March 1933
and was discharged on February 18, 1937. He had been the last man
in his department to be dismissed in a general lay-off in 1935.
Brucker worked in each of six different departments. He attributed
his many transfers to reluctance on the part of his supervisors, be-
cause of his experience, to lay him off during slack periods. At the
time of his discharge he had worked steadily in one job for 13
months. His transfer to that job had been protested by his former
"lead man," or gang foreman, because of Brucker's proficiency in
the operation theretofore assigned to him. On his last job, Brucker
regularly substituted for the "lead man" when the latter was absent.
Brucker started at 521/2 cents per hour, and was earning 70 cents
per hour at the time of his discharge.
Brucker joined the U. A. W. A. on January 20, 1937, and his name
appears upon its charter. He became very active in the affairs of
the organization, solicited membership, attended meetings, urged the
attendance of others, and signed up more than 50 members in his own
department. He served as treasurer of the local and was a member
of the strategy committee which called the strike.
Brucker received the first intimation that he would lose his job at
about noon the last day of his employment, when Owen Virden, at
that time a D. E. A. representative for the department in which both
men worked, told him he was going to be discharged for talking too
much. Virden testified that his information had come from H. C.
Anderman, supervisor of the department, and that he had intervened
with Anderman on Brucker's behalf and had been assured that if
Brucker would desist from advocating unionism the discharge would
be reconsidered.
Later in the day, nevertheless, Anderman discharged Brucker.
Anderman testified that he did not know that Brucker belonged to a
labor organization and that Brucker was discharged solely because
his work had slowed up. Brucker, however, had never been warned
that his work was too slow.
DECISIONS AND ORDERS 255
Virden, on the other hand, testified that Anderman had told him
Brucker was being discharged because he had made an organizing
speech to a half-dozen men in the toilet. Virden stated, also, that it
was common knowledge among the employees that Brucker had been
discharged for discussing union activities.
The word "loafing" appears upon the final pay notice signed by
Brucker as the reason for severance of employment, but Brucker
testified that when he signed the notice to get his pay the notation
was not there. We find that Brucker was discharged because of his
union activities. Brucker's activities, he admitted at the hearing,
were not restricted to occasions when he was off duty. He sometimes
talked to the other employees in his department about the U. A. W. A.
during working hours. Inasmuch as similar infractions on the part
of members of both organizations were very common during this
period of intense rivalry between the U. A. W. A. and the D. E. A.,
and inasmuch as no D. E. A. member was discharged or in any way
disciplined for union activities, Brucker's discharge, whether caused
by his activities inside or outside the plant, must be held to have
been discriminatory.
On February 19, 1937, Fred Schwabe was discharged. The dis-
charges of Brucker and Schwabe were reported at a U. A. W. A.
meeting held that day, and resulted in the appointment of a strategy
committee which was instructed to consult the Regional Office of-the
Board regarding the discharges, and also to decide upon appropriate
union action in the event of continuing discrimination.
On Saturday, February 20, a conference was held at the office
of Regional Director Nylander, at which the U. A. W. A. was repre-
sented by members of its strategy committee, and the respondent by
H. W. Elliott, its attorney. Elliott was apprised of the U. A. W. A.'s
charge that Brucker and Schwabe had been discriminatorily dis-
charged, and that threats of similar treatment had been made to other
members of the U. A. W. A. He observed that Monday, February
22, was a legal holiday, but agreed to arrange for a conference with
Douglas for February 23. The U. A. W. A. representatives warned
Elliott that further discharges of U. A. W. A. members would
precipitate a strike.
On Sunday Elliott reported Saturday's conference to Douglas. At
the hearing, Douglas denied having been informed of the strike
threat, insisting that the strike came as a complete surprise to him.
In any event, the plant was open and in operation on February 22,
and the negotiations for a conference were interrupted by the dis-
charge, on that day, of Sidney Ring.
Sidney V. Ring began his employment at the Douglas plant in
March 1933. From January 1936 until his discharge, he worked in
256 NATIONAL LABOR RELATIONS BOARD
department 52 (sheet metal). Louis Triplat, assistant supervisor of
department 52 during Ring's employment there, admitted that he
had highly praised the quality of Ring's work.
Ring joined the U. A. W. A. on February 5, 1937. He attended
three organization meetings, discussed the Union with other em-
ployees after working hours, and induced many men to attend Union
meetings. Shortly before his discharge, Ring was warned by a com-
pany inspector named Kain that unless he stopped talking about
union activities he would lose his job. Thereafter, until his discharge,
Ring attended no further meetings.
On the afternoon of February 22, Triplat told Ring he was
through, assigning as the reason "too much horse-play." Ring testi-
fied (and Triplat denied) that Triplat had represented himself as
having unsuccessfully opposed Ring's discharge because Ring's name
had been on Factory Manager Strompl's desk for discharge for sev-
eral weeks. Norman D. Hooker, superintendent of the department,
testified that Triplat had, in fact, opposed the discharge of Ring.
Strompl denied having had Ring's name under consideration.
At the hearing the respondent contended that Ring was discharged
for too frequent absences from his post. Both Triplat and Hooker
testified that Ring was a capable worker but that toward the end of
his employment he was often away from his bench during working
hours. On the day of Ring's discharge, Frank R. Stuber, a general
supervisor, called the attention of Hooker and Triplat to Ring's
frequent visits to the plant dispensary. Ring was discharged imme-
diately thereafter.
It appears that Ring visited the dispensary to have wounds and
scratches bandaged and to get aspirin for headaches. The nurse
testified that she gave him aspirin although she was not supposed to
do so. She belittled the seriousness of Ring's wounds, but admitted
that the respondent's rules require employees to have the slightest
scratch dressed at the dispensary. Triplat testified that he never
knew Ring to leave the department except to go to the dispensary.
Although Hooker testified he had reproved Ring for slowing up
in his work, Ring had been threatened with discharge only when
Kain warned him to stop discussing unionism. Kain's threat was
neither denied nor explained by the respondent. Like Brucker's,
Ring's final pay notice accounted for his discharge by the notation
"loafing." We do not believe that Ring was discharged for going
to the dispensary. We find that his membership in and activities on
behalf of the U. A. W. A. were the reason for his discharge.
On the evening of February 22, Ring reported the fact and the
circumstances of his discharge to the strategy committee of the
U. A. W. A. which had been appointed on the 19th. The discharge
of Ring and reports of threats to discharge other members of the
DECISIONS AND ORDERS 257
U. A. W. A. moved the committee to call a strike for the following
morning. It had been empowered by the membership to take such
action if necessary.
The committee decided upon a sit-down strike. It made plans
to prevent violence or disorder, and to form committees to police the
plant and to protect the respondent's property. It decided to assert
demands for reinstatement of the men discharged for union activi-
ties; a wage increase; union recognition; seniority rights; and time
and a half for overtime. These demands were set forth in a leaflet
distributed during the strike.
We find that the ensuing strike was a labor dispute within the
meaning of Section 2 (9) of the Act called in protest against the
unfair labor practices of the respondent.
2. Conduct of the strike
At 9 o'clock on Tuesday morning, February 23, a member of the
U. A. W. A. strategy committee pulled the power switch at the
Douglas plant. With the power off, work ceased, and members of
the U. A'. W. A. led a parade up and down the aisles of the plant.
Participants in the parade urged other workers to join the strike.
Although there was considerable noise and confusion, and workers
who refused to strike were called scabs, no violence attended the
demonstration.
Shortly after the outbreak of the strike, the respondent posted a
notice that work would be suspended until order was restored. At
about the time for the normal noon lunch period, the plant whistle
blew and nonstriking employees departed. Married strikers also left
the plant under instructions from the strategy committee. Approxi-
mately 250 men remained within. _
In the afternoon the respondent caused a. written notice, to be
distributed characterizing the occupants of` the plant as trespassers
and requesting them to leave. The strikers, however, remained in
possession of the plant and, under the leadership of the strategy
committee, organized a patrol system for the purpose of maintaining
order, enforcing safety rules, and safeguarding property from dam-
age or destruction. These patrols cooperated with plant watchmen
and with members of the Santa Monica police force and, on the
whole, succeeded in preventing disorder and destruction of. property.
Such damage as occurred was "not great., A wooden barricade
hastily erected by the respondent in 'order to shut off access to an
army bomber in the process of construction was broken ddwn by
the strikers. This act appears to have had for its objective the pre-
vention of resumption of, work on the bomber.. Such work was tem-
porarily abandoned, and the plane itself was not molested. One of
258 NATIONAL LABOR RELATIONS BOARD
the respondent's stockrooms was broken into but a U. A. W. A. patrol
apprehended those responsible and stopped them from removing
materials. A quantity of soundproofing material was used by the
strikers for bedding. Some damage was also entailed by the use of
electrical conduits and cables in the manufacture of weapons with
which some of the strikers armed themselves. The total damage to
property was almost negligible.
Some mention should be made of the large volume of evidence
introduced by the respondent to show sabotage of planes built for
the United States Army. This evidence was offered in rebuttal of a
charge that the respondent employed labor spies, and in justification
of the admitted employment by Douglas of an intelligence unit. It
was conceded that such sabotage as occurred related to a period prior
to the sit-down strike, and had no connection with the U. A. W. A.
or its members. The respondent stipulated, and we find, that an
inspection made after the evacuation of the strikers revealed no evi-
dence of sabotage or injury to any of the planes or parts in the plant
then under construction.
If damage to property was slight, violence to person was wholly
absent. The strikers erected barricades closing entrances to sections
of the plant, and sometimes refused to admit managerial employees.
Yet, the number of supervisory witnesses who testified as to the con-
duct of the sit-down strike indicates that no determined effort was
made to exclude them. The army inspector attached to the plant and
his staff, as well as maintenance employees, were allowed to enter.
George W. Stratton, Douglas' executive assistant, a witness who
proved most hostile to the U. A. W. A., testified that he had no
trouble getting around the plant during the occupation and that he
saw no violence or damage to property. On the whole, the strike was
devoid of violent or destructive incident.
On Wednesday, February 24, the chief of police of Santa Monica
served written notice on the strikers ordering them to leave the plant.
On the following day, after hearing Douglas and other witnesses, the
Grand Jury of Los Angeles County found an indictment against
the sit-down strikers, charging them with conspiracy to violate Sec-
tions 418 and 594 of the Penal Code of California.
A large number of peace officers assembled at the Douglas plant
for the purpose of serving the warrants and making the necessary
arrests. News of this move to remove them from the plant and to
arrest them brought about a change in the temper of the strikers.
According to the testimony of several witnesses, two strike leaders
sought a conference with the management and threatened that an
attempt to serve the warrants and remove the strikers would meet
with resistance. At about this time, the strikers took steps indicative
of an intention to offer armed resistance. Acetylene torches were
NATIONAL LABOR RELATIONS BOARD 259
wheeled into the proximity of aircraft fuselages near completion.
Pans containing a liquid described as inflammable lacquer were
placed on the floor of the plant, it was charged, to form a fire trail.
Weights were assembled on balconies in strategic positions.
The threat implicit in these preparations was never carried out.
Successful negotiations for voluntary surrender broke the tension
which characterized the last few hours of the occupation. After
many conferences it was agreed that the strikers be given a reasonable
time to clean up the plant, and that they thereafter submit to arrest
on the condition that they not be handcuffed and that they leave the
plant by the front rather than by the rear door. This agreement
was carried out.
Just before the arrests, the plant door was opened and a number
of strikers who had been picketing outside entered the plant. "John
Doe" warrants were passed indiscriminately among the men with the
result that many were arrested who participated in the occupation
only after it had been called off. Of 351 who were indicted, 327
had been discharged before the institution of this proceeding.
When, on March 1, the respondent reopened the plant, 1,400 men
remained on strike. During and after the occupation of the plant,
and after the resumption of operations, the U. A. W. A. maintained
a picket line before the plant entrance. Picketing continued in an
orderly manner, and without material incident, until the end of the
strike on March 11.
On March 5 representatives of the respondent and of the U. A.
W. A. met at a hearing of a case before the Board based upon
charges that Brucker, Schwabe, and Ring had been discharged for
union activities. They requested postponement of the hearing and
began negotiations for settlement.
The complaint issued upon charges filed by the U. A. W. A. alleges
that on March 11 an agreement was reached whereby all strikers with
the exception of 38 were to return to their former positions as rapidly
as production permitted, and that the question of reinstatement of
the 38 would be arbitrated; that the respondent has refused either to
reinstate the 38 or to arbitrate the question of their reinstatement;
and that the respondent's refusal to reinstate the 38 was due to their
membership and activity in the U. A. W. A.
The answer denies the agreement in its entirety. It admits refusal
to reinstate the 38, but denies the alleged discrimination. It alleges, in
substance, that the reasons for the refusal were insubordination on the
part.of the 38, and the fact that they were under indictment charged
with the commission of a felony of which the respondent believed them
guilty. In short, the answer bases the respondent's refusal to reinstate
the 38 upon their participation in and conduct during the strike.
260 NATIONAL LABOR RELATIONS BOARD
Before reviewing the conduct during the strike of the individuals
whose reinstatement was refused, we shall discuss the negotiations for
settlement and the terms upon which the strike was called off.
3. Negotiations settling the strike; origin of the "38 list"
Conferences leading to the termination of the strike were held on
March 5, 6, 8, 10, and 11. In addition to the reinstatement of all strik-
ers, the U. A. W. A. representatives at first demanded a wage increase
and union recognition, but in the face of resistance on the part of
Douglas the wage demand was abandoned and the demand for recogni-
tion deferred. The Union's principal concern proved to be the rein-
statement of its members. Here, too, it encountered stiff opposition.
In the beginning, Douglas insisted that the reinstatement of indicted
men must await the outcome of their trial, maintaining that differen-
tiation among then on his part might be interpreted as prejudgment of
their guilt or innocence.
Finally, Douglas agreed to reinstate all strikers except 38, upon the
condition that indicted men must sign an affidavit to the general effect
that they had been guilty of no violence or damage to the respondent's
property. A majority of the sit-down strikers were, in fact, rein-
stated upon signing such an affidavit, prepared by the respondent and
approved by the Union's officials.
Irreconcilable conflict exists, however,' as to the treatment which
was agreed to be accorded the 38 men excluded from immediate rein-
statement; whether, as contended by the U. A. W. A., their cases were
to be arbitrated, or whether, as contended by the respondent, they were
to be dealt with as the respondent saw fit.
Differentiation in the treatment of the 38 was first suggested when
Douglas conceded the reinstatement of the majority of the indicted
men. He insisted that there were some men among the strikers whom
he ought not to be required to reinstate. He urged the union repre-
sentatives to prepare a list of the most active leaders of the sit-down
strike and to present it as the Union's list of men disqualified from
reinstatement.
Douglas' attempt to evade responsibility for barring strike leaders
by shifting the burden of their selection upon the Union failed. Un-
able to induce the U. A. W. A. to characterize its members as unworthy
of reinstatement, he proposed that the respondent itself prepare the
list of "undesirables."
The final conference, on March 11,' was participated in only by
Douglas and Coleman, an international representative of the U. A. W.
A. At its close, settlement of the strike was announced to officials and
attorneys of the U. A. W. A. who were gathered at-the plant: At the
hearing Douglas insisted that Coleman riiimed three or four 'strikers
and agreed that this list, as enlarged by the respondent, should com-
DECISION'S AND ORDERS 261
prise the names of men who need not be reinstated. Coleman insisted
that no list was provided by him, and that what was agreed was that
the cases of men to be named by the respondent would be submitted to
arbitration.
Later that evening, James Carter and Marshall Ross, two attorneys
for the U. A. W. A., went to the plant and asked George W. Stratton
for the list of names. Stratton gave them, instead, a list of the names
of men whom the respondent would reinstate. Only by a laborious
comparison with a copy of the indictment were the two lawyers able,
by elimination, to arrive at the identity of the men who were to be
denied immediate reinstatement. This was the first occasion upon
which any person associated with the U. A. W. A. was apprised of the
names of the 38. Yet, upon this childishly elaborate pretense rested the
contention of the witness, Stratton, that the Union and not the re-
spondent had actually prepared the list. When, Stratton finally ad-
mitted that by deletions from a copy of the indictment he had himself
compiled the list of 38, he stated that he could not remember upon
what basis he had selected the names of men to be excluded.
Carter and Ross checked their result with Stratton, who made
reference to a separate list which he refused to turn over to them.
The check resulted in the addition of a few names. It was testified
that Stratton then observed that it was unimportant what names were
added inasmuch as all the cases were to be arbitrated anyhow.
The "38 list" was posted at union headquarters and union officials
told members that reinstatement of those on the list must await arbi-
tration. Two strikers testified that upon application for reinstate-
ment they had been told the same thing by Sweney, the personnel
manager.
On March 15, the adjourned date of the hearing on the Board's
complaint involving Brucker, Schwabe, and Ring, Carter proposed to
the respondent's attorney that their cases be submitted to arbitration
along with those of the 38. The Board's proceeding was thereupon
dismissed by consent, and the U. A. W. A. and the respondent ap-
pointed an arbitration board to consider the question of the reinstate-
ment of the three men. At the close of the hearing, the arbitration
had not been concluded. It is admitted, however, that at all times
since March 11, 1937, the respondent refused to reinstate the 38 or to
arbitrate 'the question of their reinstatement.
Space does not permit an exhaustive review of the voluminous
testimony bearing upon the negotiations for settlement. Whether
arbitration was agreed upon, or whether the strike was settled with-
out a meeting of minds as to the disposition 'to, be made of the cases
of the 38, we need not determine. We do-reject as incredible the re-
spondent 's contention that the Union irrevocably sacrificed the jobs
of 38 members whose identity was unknown to it.
147841-39-vol. 10-18
262 NATIONAL LABOR RELATIONS BOARD
4. Failure to reinstate strikers
It is uncontradicted , and we find , that at the close of the strike
the respondent refused the reinstatement of certain strikers , delayed
the reinstatement of others , and reinstated still another group to po-
sitions of less pay and authority than theretofore enjoyed by them.
The strike having been provoked by the respondent's unfair labor
practices , the respondent was under obligation to reinstate strikers to
their former positions upon application , to the extent that such posi-
tions were available at the time of such applications , dismissing, if
necessary to effectuate their reinstatement , any persons hired since
the beginning of the strike to take the places of strikers , unless there
were circumstances other than his membership in the U. A. W. A.
or participation in its strike which justified a refusal . Except as to
Charles Edward Barthelmess whose case is hereinafter discussed, no
such circumstances appear. By failing to reinstate other strikers to
their former positions , the respondent discriminated with regard to
their hire and tenure of employment and the terms and conditions of
their employment , thereby discouraging membership in the U. A.
W. A .' Individual cases of discrimination are hereinafter discussed
in Section III, B , 5, 6, and 8.
5. Discriminatory refusal to reinstate the "38"
At the hearing, although Stratton evaded answering how he had
chosen the names which comprised it, Douglas disclosed the basis upon
which the "38 list" was compiled :
Q. (By Mr. Elliott.) Mr. Douglas, what particular would you
say differentiated the 38 or 54 men whom you stated to Mr. Cole-
man that you would not reemploy from the others who had for-
merly been in the employ of the Douglas Company?
A. They were the men who, to the best of our knowledge, were
taking some lead in the a f f air.e
Q. In the affair? What do you mean by "in the affair"?
A. I mean the illegal seizure and holding of the plant.
Q. Would that include their activities both inside the plant,
inside the plant in seizing the possession of the property?
A. Yes, general activities as far as we could determine them.
Later Douglas testified that he had said to Coleman : "You are
going to be in an awfully difficult position to answer why these 38
5Blaek Diamond Steamship Corp . v. National Labor Relations Board, 94 F. (2d) 875,
(CCA 2d ), ai41g. 3 N. L. R. B. 84; cert . den. 304 U . S. 579 ; Matter of MoKaig-Hatch, Inc.
and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local
No. 1139, 10 N. L R. B 33.
6 Italics supplied.
DECISIONS AND ORDERS 263
men who, undoubtedly, were the backbone of the strike are not going
to be returned to work. " 7
Douglas' desire was to punish the offending Union by the random
exclusion of a number of its members, as well as by barring individual
leaders of the strike, as appears from the following excerpt :
Q. Referring, Mr. Douglas, to the 38 list, who actually com-
piled the list?
A. I couldn't say. That was a collection of names that were
taken, based on information that came to us from various sources.
Q. Who compiled it, do you know?
A. No ; I do not.
Q. Did you add some names to the list?
A. No; I did not add any names to the list. I had nothing to
do with the compilation of it.
Q. Was the list ever shown to you?
A. It probably was shown to me, but I could not recognize here
if it was shown to me today. I do not remember any names
on it, other than I have, like those Coleman spoke of.
Q. I am not referring to that, but as to who showed you the
list?
A. Well, it was prepared, as I say, by some of the people in the
office, but they were merely collecting information from various
sources.
Q. And do you know the sources from which they collected the
information?
A. They came from every source.
Q. Did any of it come from you, personally?
A. No.
Q. You made no investigation, then, to determine the accu-
racy of the information supplied?
A. There were 200 some odd names, that, by law of this coun-
try we did not have to return to work in an effort to bring other
innocent men back. This was a compromise. It did not make a
great deal of difference, insofar as I could see, who were on the
38 list, whether they were innocent or guilty. It was a compro-
mise affair.7
Douglas stated that during the settlement talks Coleman presented
the names of three or four men for exclusion, whereupon Douglas said,
"Well, that is some of them, Coleman, but there will certainly have to
be more at this time." 7
The foregoing testimony of the respondent's president convinces
us that the "38 list" was designed to rebuke the offending Union, first,
7 Italics supplied.
264 NATIONAL LABOR RELATIONS BOARD
by removing the strike leaders and, second, by the decimation of
strikers.
During the hearing, upon the Board's motion, the complaint was-
dismissed without prejudice as to 14 men on the "38 list." Review of
the cases of the remaining 24 confirms the conviction that retaliation,
against the U. A. W. A. was the purpose of their exclusion. The men
fall into two general categories : 11 were still under indictment at the
close of the hearing and were later convicted of conspiracy to commit
forcible detainer and fined; 8 the indictment against the remaining 13•
had been dismissed before the commencement of the hearing.'
The men who were ultimately convicted and fined are : Claude R.
Anderson, Jack Boyer, Lyle Griffith, Silas V. Nimz, Jack Ortmann,
Harry Owens, Isadore Patt, Eugene B. Page, Virgil G. Sharp,
Charles F. West, and Edward F. Wilson.
Claude R. Anderson started work at the Douglas plant in May
1934. In the summer of 1936 he was promoted to "lead man." His
former supervisor testified that Anderson's work had been satis-
factory but that a few days before the strike some employees had
complained that Anderson insisted they join the U. A. W. A.
Anderson joined the U. A. W. A. early in January 1937, attended
its meetings, and induced 25 or 30 men to become members. He is
a charter member and officer of the Local and was on the strike-
strategy committee. During the sit-down strike Anderson served as
chairman of the employees' patrols which policed the plant. He
was indicted and arrested. Upon his release he returned to the
picket line. After the settlement of the strike, Anderson registered
for reemployment but was never called back. At a Union meeting
he learned of the projected arbitration of his case and thereafter
made no further application for reinstatement. At the time of the
hearing, Anderson had failed to secure-employment.
In his capacity as patrol chairman during the sit-down strike
Anderson exercised considerable influence among the strikers. In
cooperation with Charles L. Dice, the chief of police of Santa Monica,
and H. W. Marcoux, the respondent's chief watchman, Anderson
agreed upon rules to be observed by the strikers. He made frequent
speeches to the strikers and was heard to give them orders. 1 Anderson
appears to have been largely responsible for, the predominantly
orderly character of the occupation. - -
The most serious charge against Anderson is that he was one
of the two men who, at the time of the impending evacuation,
threatened that an attempt to remove the strikers would result .in
8 Under Section' 17 of the Penal, Code of the State 'of California a crime actually
punished by a sentence other than imprisonment in the State prison is deemed- a-mis-
demeanor. It follows that the 11 men were convicted of a misdemeanor and not a
felony.
'Of the original 38, 25 had been dismissed and 13 were finally convicted.
DECISIONS AND ORDERS 265
the destruction of the plant . Anderson denied that he threatened
that the plant would be damaged, stating that he merely warned
the authorities that the strikers proposed to defend themselves against
forcible removal. In this he was corroborated by Lieutenant Ken-
neth G. Hubbard of the Santa Monica police force, a witness called
by the respondent.
Jack Boyer was employed by the respondent from September
1936 until the first day of the sit -down strike . He is a charter mem-
ber of the U. A. W. A.
The respondent contends that Boyer resigned a few minutes before
the outbreak of the strike. His supervisor, McCann, testified that
Boyer said he was quitting because he was unable to do the work to
which he had been assigned. Boyer's version of the incident is that
on the morning of February 23, McCann advised him to resign in
order to keep his record clean, and that he replied that it was too
late to resign, that the strike was about to start. Boyer's final pay
notice bears a signature and the notation "own request" as the reason
for the severance of employment . Although there is no direct testi-
mony that Boyer signed the notice or that the reason for severance
was inserted before the notice was signed, Boyer was not recalled to
testify after the introduction of the notice. It will be recalled, how-
ever, that the witness Brucker testified that the reason for severance
appearing in the notice signed by him was not there when he signed
it. We do not believe that Boyer resigned . Such a conclusion is
incompatible with his subsequent behavior and with the action of
the respondent in including his name in the list of 38.
Aside from his alleged resignation, the respondent's objection to
reinstating Boyer appears to spring from the fact that he was an
active leader of the sit-down strike. Boyer testified that his task was
to stand guard at the front door of the plant in the company of
Marcoux, the respondent's head watchman . Witnesses for the re-
spondent identified him as having used company stencil paper for
the manufacture of arm bands . He was stated to have been among
those strikers who broke down the wooden barrier erected to protect
the army bomber , and who moved acetylene tanks. After his release
from arrest, he returned to the, plant to picket.
Boyer applied for work on the Saturday following the termination
of the strike . Sweney told him that he was on the "38 list" and
could not be reinstated. At the time of the hearing, Boyer had not
secured employment.
Lyle Griffith worked for the respondent from April 1929 until
the morning of the strike, except for an 8-month period during
1932. He started at 40 cents an hour, and was earning 70 cents an
hour when the strike began. Griffith joined the U. A. W. A. in
February 1937. He took part in the occupation of the plant, was
266 NATIONAL LABOR RELATIONS BOARD
arrested, and, after his release, returned to the picket line. When
the strike terminated, he registered for reemployment, but he was
never recalled.
Aside from the fact that he was seen in the plant during the sit-
down strike, no reason appears why Griffith was included in the
"38 list." At the time of the hearing he was unemployed.
Silas V. Nhnz went to work for the respondent in November 1935.
At the time of the strike, he was earning 60 cents an hour, 5 cents more
than his starting wage. Nimz joined the U. A. W. A. in January,
attended meetings, urged others to attend, and advocated unionism to
his fellow employees. He was a member of the strike-strategy com-
mittee and, during the occupation, of a strikers' patrol.
Witnesses for the respondent testified that Nimz participated in
the destruction of the wooden barrier and in the removal of acetylene
tanks. He was also heard to urge non-strikers not to be "scabs."
Upon his return from arrest, Nimz joined the picket line. He reg-
istered for reemployment after the strike and was told he would be
called. At the time of the hearing, he had not succeeded in securing
employment.
Jack Ortmann started to work for the respondent in March 1936
at 521/. cents per hour. He was earning 671/2 cents at the time of the
strike. Ortmann was active in organizing as early as September 1936
and joined the U. A. W. A. on February 1. He attended meetings,
advocated unionism, and induced a number of men to join the local.
Ortmann was a member of the strike-strategy committee, and be-
came a leader of the sit-down strike, helping to organize the strikers'
patrols which enforced plant rules during the occupation.
Witnesses for the respondent charged Ortmann with having re-
fused supervisory employees access to the plant and with having par-
ticipated in the destruction of the wooden barrier which was erected
to protect the army bomber. On the eve of the evacuation, Ortmann
lighted an acetylene burning torch within a few feet of the duralumin
fuselage of an airplane nearing completion. Himself a welder, Ort-
mann must have known the potential danger of such an act. Whether
he actually intended sabotage and changed his mind, or whether his
gesture was mere bravado is left unanswered by the record, but the
fact that, although no one interfered with him, he quickly extin-
guished the flame and committed no damage suggests the latter
alternative.
After the strike, in the presence of Stratton, Ortmann asked Lee
Taylor, an employee in the respondent's executive office, whether he
would ever be reinstated. He was told that his record in each of the
three departments where he had worked was good, and after a period
of 6 months or a year, when "this union business" had died down,
there was no reason why he could not be reemployed. Stratton en-
DECISIONS AND ORDERS 267
gaged Ortmann in conversation to elicit the reasons for the strike.
In response to Ortmann's enumeration of grievances, Stratton asked,.
"Why didn't you go to your D. E. A. representative?"
Upon Ortmann's inquiry, both Stratton and Sweney, the personnel
manager, denied knowing why Ortmann had been denied reinstate-
ment. Strompl, the plant superintendent, told him that it was be-
cause he had been too active in the strike.
The failure of Stratton, Strompl, and Sweney specifically to men-
tion Ortmann's gesture with the acetylene torch or any other incident
of his individual behavior during the occupation of the plant, the fact
that Strompl based Ortmann's non-reinstatement solely upon strike
activity, lead us to the conclusion that Ortmann's participation in the
concerted activity of the U. A. W. A., rather than his misuse of the
blowtorch, was responsible for the respondent's refusal to reinstate
him.
Ortmann is an alien. He testified that he had immigrated into
the United States in 1921 at the age of 8; that upon attaining the
age of 18, he applied for United States citizenship; and that he was
awaiting admission to full citizenship. The respondent now argues
that it may not reinstate Ortmann because the employment of aliens
on government aircraft construction is forbidden by the Army Air
Corps Act,10 and because there is no segregation at its plant between
government construction and private construction. It is not con-
tended, however, nor are we able to find from the record, that Ort-
mann's inclusion in the "38 list" was influenced by the fact that he
is an alien.
Harry Owens was employed by the respondent in December 1936.
He joined the U. A. W. A. during January, attended a meeting, and
signed up five or six members. Owens participated in the strike, but
not in the occupation of the plant. He was served with a warrant at
a mass meeting after all the other indicted men had already been
released from jail, presumably because of strike activities outside the
plant. He was ultimately convicted and fined with the others. After
the termination of the strike, Owens applied for reinstatement and was
refused. He had failed to secure employment at the time of the,
hearing.
Eugene B. Page was employed by the respondent from March 1936
until the time of the strike. During the period he received wage
increases aggregating 71/2 cents an hour. Page was a charter member
of the U. A. W. A., attended Union meetings, solicited membership,
10 10 U S C. A. Sec. 310 (j)
. no aliens employed by a contractor for furnishing or constructing air-
craft, or aircraft parts, or aeronautical accessories for the United States shall be
permitted to have access to the plans or specifications or the works under construc-
tion . . . without the written consent beforehand of the Secretary of the de-
partment concerned
268 NATIONAL LABOR RELATIONS BOARD
and discussed union activities. He testified that late in January his
assistant supervisor warned him to stay away from the U. A. W. A.,
that if he were caught advocating any union other than the D. E. A.
he would be discharged.
As a member of the strike-strategy committee, Page attended the
conference held on February 20 at the office of Regional Director
Nylander. He was secretary of the Local during the strike.
Page was the man who shut off the electric power at the start of
the strike. He was identified as being among those who broke down
the wooden barricade and who moved the acetylene tanks. He was
heard to make speeches to the men. One witness charges that on the
last day of the strike Page told 25 or 30 assembled strikers, "We
won't do anything until they start, and then cut loose and give her
hell." After the strike Page was registered for reemployment but
was told that he was on the "38 list" and therefore ineligible. He had
failed to secure employment at the time of the hearing.
While Page was obviously a very active leader of the strike, none,
of the acts attributed to him resulted in violence or serious damage
to property. We believe that his inclusion in the "38 list" was the
result of conspicuous strike activity rather than of improper conduct.
Isadore Patt received wage increases aggregating 121/2 cents an hour
during the period of his employment by the respondent, which began
in April 1936 and continued until the time of the strike. In December
1936 he attempted without success to organize the employees in
opposition to the rule laid down by the respondent that men must
work at straight time rates on Saturdays to make up time lost on
account of the Christmas holidays. Patt joined the U. A. W. A. in
January. He testified that he induced about 20 men to attend its
meetings.
Patt, also, is charged with having been among the men who broke
through the wooden barrier and who moved acetylene tanks during
the occupation of the plant. He was indicted and removed from
the plant with the other sit-downers. After his release from the
arrest he returned to picket.
When the strike had been settled he registered for reemployment
but was never called back. At the time of testifying, Patt had failed
to secure regular employment.
Virgil G. Sharp began his employment at the respondent's plant
in July 1936 at the rate of 30 cents an hour. Five weeks later he
was increased to 45 cents. Sharp joined the Union on January 20,
attended meetings, signed up more than 50 members, and was
influential in inducing others to join.
He is charged by the respondent's witnesses with having partici-
pated in barring supervisory employees from the plant, and with
having accompanied Page on the occasion when Page shut the power
DECISIONS AND ORDERS 269
off. Sharp was indicted and arrested , and after his release from
arrest, he returned to the plant to picket . He reapplied for employ-
ment in April and was told his reinstatement must await arbitration.
At the time of the hearing, he had failed to secure regular
employment.
Charles F. West was employed by the respondent in April 1936 and
received wage increases aggregating 121/2 cents an hour.' West was
a charter member of the Union, spoke at its meetings , engaged ac-
tively in organizing , and signed up over 100 members. He partici-
pated in the sit -down strike and was arrested with the others. On
March 28 he was elected president of the Local and, in May, became
an international representative of the U. A. W. A.
How West's name came to be included in the "38 list " is a com-
mentary upon the manner in which the list was compiled. In the
course of the conferences settling the strike , Douglas told West that
the respondent had nothing against him and that he would not be
on the "38 list." West had been acting as strike chairman and
insisted upon remaining out until the cases of all the other men were
disposed of. Thus he virtually placed himself on the list. At the
hearing he stated his reason for doing so:
Q. (By Trial Examiner McNitt.) State, Mr. West, why you
put yourself on that list?
A. I thought I had made it clear, that I didn't want to be put
in a position with the newspapers and the opposing faction who
would like to get some strike leaders in, as going back to work
themselves and leaving some of the rest of the boys out to fend
for themselves on the outside. My understanding was that the
arbitration committee was to be set up immediately . I didn't
think it was going to be over a matter of 2 or 3 weeks until
the entire matter would be settled.
We reject the contention of witnesses for the respondent that by
his action West resigned.
Edward F. Wilson started to work at the respondent 's plant in
November 1936 at 40 cents an hour and was receiving 45 cents at
the time of the strike . Although Wilson was in the plant on the
morning the strike started , he left at about noon and went home.
He was among those who were arrested because they entered the plant
on the eve of the evacuation . His testimony indicates how indis-
criminately the arrests were made: V
Trial Examiner McNitt. How did you get arrested?
The Witness. Well, Thursday, I was in the picket line and
I had been picketing the plant , and it was in the afternoon, and
a few of the picket lines started running through the door-
and well , I was curious and I went in with them. When I got
270 NATIONAL LABOR RELATIONS BOARD
inside they were handing out the indictments and he said, "Pass
them out." Some fellow next to me shoved one into my hand,
and another one grabbed them out. They seemed eager to get
them, and finally one was pushed into my hand, and I was
shuffled into line and the next thing I knew I was down before
Edward Bishop."
Only after his release from arrest did Wilson join the U. A. W. A.
He continued his participation in the strike. When the strike had
been called off, he registered for reemployment. In April he received
a telegram instructing him to report for work, but when he appeared
Sweney told him a mistake had been made, that he had not been
reinstated. Wilson had had only 1 week's work since the strike. At
the time of the hearing he was unemployed.
The cases of Clyde E. Allyn, Eugene Medford Barr, E. P. Blair,
Floyd Blevins, James Roxie Cherico, Richard N. Esterwold, Delos
Eyer, Walter Leo Hall, Harvey P. Hammond, Jacob Herscovitz,
Hastings M. Jones, Carl H. Linsenmier, and John H. Whitaker, the
13 men against whom the criminal charges had been dismissed before
the commencement of the hearing, can be disposed of as a group.
Each of these men was a member of the U. A. W. A., and each, with
the exception of Eyer, Herscovitz, and Linsenmier, who entered the
plant at the end of the occupation, participated in the sit-down strike.
Some of the men applied for reinstatement after the strike, and
others waited to be called for arbitration in accordance with the in-
structions given out at Union headquarters.
No evidence offered by the respondent overcomes the presumption
ra_scd by the manner in which the "38 list" was compiled that all 13
were victims of discrimination.
The respondent refused to reinstate Claude R. Anderson, Jack
Boyer, Lyle Griffith, Silas V. Nimz, Jack Ortmann, Harry Owens,
Isadore Patt, Eugene B. Page, Virgil G. Sharp, Charles F. West,
Edward F. Wilson, Clyde E. Allyn, Eugene Midford Barr, E. P.
Blair, Floyd Blevins, James Roxie Cherico, Richard N. Esterwold,
Delos Eyer, Walter Leo Hall, Harvey P. Hammond, Jacob Hersco-
vitz, Hastings M. Jones, Carl H. Linsenmier, and John H. Whitaker,
for the reason that they had joined and assisted the U. A. W. A..
thereby discriminating with respect to their hire and tenure of em-
ployment, discouraging membership in the U. A. W. A., and inter-
fering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
Allyn, Blair, Cherico, Esterwold, Hall, and Jones had failed to
secure regular employment at the time of the hearing. Of the
remaining seven, Herscovitz and Whitaker testified that they do
11 Judge of the Superior Court of Los Angeles County, California.
DECISIONS AND ORDERS 271
not desire reinstatement. At the time of the hearing, Barr had
secured employment with Stearman-Hammond Aircraft Company
in San Francisco at a wage of 66 cents an hour. Although he had
been earning only 621/2 cents an hour at the time of the strike, a
5-cent blanket wage increase granted at the Douglas plant since the
strike would increase his earnings upon reinstatement to 671/2 cents.
Barr testified that he desires reinstatement because of high living
costs in San Francisco. Blevins, at the time of the hearing, had
secured employment at 5 cents an hour more than he had received
at the respondent's plant. He testified that he desires reinstatement
because his present employment is less secure and less permanent
than employment with the respondent. Eyer has secured employ-
ment at manual labor with Southern California Gas Company, and
earns 50 cents an hour as compared to 521/2 cents, his earnings at
the Douglas plant. He testified that he desires reinstatement because
he prefers aircraft work and wishes "to follow that line." Ham-
mond has secured temporary employment with Automobile Sheet
Metal Works at a rate of pay 10 cents an hour higher than he had
received from the respondent. He desires reinstatement because of
the temporary character of his present employment and because he
believes there is a future "in aviation." Linsenmier has secured em-
ployment with Payne Furnace Company and, at the time of the
hearing, was earning 60 cents an hour as compared to 75 cents,
his wage rate at the Douglas plant.
6. Discriminatory refusals to reinstate and delays in reinstatement
The complaint alleges, further, that despite its agreement to rein-
state all strikers save 38, the respondent failed and refused to rein-
state 33 employees whose names are listed in Exhibit "B" of the
complaint, for the reason that they had joined and assisted the
U. A. W. A. The answer denies the agreement, and alleges that
the respondent refused the reinstatement of the 33 employees for
just cause.
By amendments of the complaint during the hearing, the num-
ber of names included in Exhibit "B" of the complaint was reduced
to 17, to wit : Charles Edward Barthelmess, Joseph Edward Barthel-
mess, Ray Bernardin, Roland Bieghler, Helen Bowen, Philip J. Car-
roll, John Carter, Wesley R. Collins, Harry Hoepner, Hyman Hoff-
man, Thomas Clyde McNair, George C. Miller, Ida Norred, Samuel
Randel, Leslie B. Warburton, Joseph M. Whalen, and George Witt.
Charles Edward Barthelmess started to work for the respondent
on the day before the strike. He joined the strike, but did not re-
main in the plant. In his application for employment, Barthelmess
referred the respondent to the Edgewater, New Jersey, plant of the
272 NATIONAL LABOR RELATIONS BOARD
Ford Motor Company, claiming to have been employed there 2 years
earlier. By a letter dated February 22, 1937, the respondent investi-
gated the reference. The reply, in evidence, states that there is no
record of Barthelmess' employment at the Edgewater plant in the
past 8 years. Barthelmess is 19. The respondent contends that its
refusal to reinstate him was caused solely by the fact that he had
given a false reference. We find that the respondent did not dis-
criminate against Charles Edward Barthelmess for union activities.
Harry Hoepner started to work for the respondent in January 193G
at 75 cents an hour. His work was never adversely criticised, and at
the time of the strike he was earning 871/2 cents. Hoepner joined the
U. A. W. A. on January 31, became active in its affairs, joined the
sit-down strike, and was indicted and arrested. After his release,
he returned to picket. The indictment against him was dismissed.
A reregistration system was set up by the respondent after the
strike. Strikers registered during the week beginning Saturday,
March 13. Hoepner registered but was not called.
During April Hoepner's supervisor, Earl M. Maxseiner, told him
that his reinstatement would take several weeks longer. Thereupon,
Hoepner removed his tools from the plant.
Maxseiner testified that when Hoepner first reapplied, his job was
filled; that when Hoepner removed his tools Maxseiner assumed he
had quit ; and that Maxseiner was unaware of Hoepner's membership
in a labor organization.
Several persons with less seniority than Hoepner worked through-
out the period duringwhich Hoepner unsuccessfully sought reinstate-
ment.
At the time of the hearing, Hoepner had secured employment with
Rich Manufacturing Company, and was working 4 days a week at
95 cents an hour. He desired reinstatement because the location of
his new employment is 18 miles from his home, whereas he lives only
a mile from the Douglas plant.
We find that the respondent's failure to reinstate Hoepner was
caused by his membership in and assistance to the U. A. W. A.
Thomas Clyde McNair worked for the respondent for 111/2 years.
On one occasion, in 1933 or 1934, at the time when rivalry between
the D. E. A. and the American Federation of Labor affiliate was at
its height, McNair was reprimanded and demoted for union activities,
and for a time his periodic wage increases were discontinued.
McNair joined the U. A. W. A. in January 1937. He struck, took
part in the occupation of the plant, and was arrested. After his
arrest, he returned to picket. The indictment against him was dis-
missed before the start of the hearing.
On March 22 McNair was offered reinstatement at a cut of 121/2
cents per hour in wages ; he refused the offer, whereupon his former
DECISIONS AND ORDERS 273
supervisor gave him a laudatory letter of reference. In July he
remonstrated with Strompl, who said :
Well, McNair, you have never been a loyal employee of the
company. * * * You never have been. We could have fired
you three years ago, but you had been here quite a while, and
we didn't want to do it. So far as I know, your job is taken.
Sweney, the personnel manager, testified that McNair's "lead" job
in the planning department had been filled, and that he had not been
reinstated'because it would cause friction to return him to work, and
Douglas testified that lie would not have any person in a position
of authority who had participated in the strike.
At the time of the hearing, McNair had failed to obtain employ-
ment and desired reinstatement. We find that the respondent failed
and refused to reinstate him because of his membership in and
assistance to the U. A. W. A.
Samuel Randel had been employed at the Douglas plant less than
a month when the strike started. He joined the U. A.W. A. on the
first day of the strike. Randel did not remain in the plant, but was
conspicuously active on the outside.
After the strike, on March 13, Randel registered for reemployment.
He testified that a month later Sweney promised to return him to
work as soon as the opportunity arose. Sweney did not deny the
statement attributed to him but testified that he failed to recall the
occasion. We credit Randel's uncontradicted assertion. At the time
of the hearing, Randel was still unemployed.
Randel's superior, Smith Newberry, testified that Randel was in-
competent and that his discharge was imminent when the strike
occurred. He admitted that he knew, during the strike, that Randel
was a member of the strike-strategy committee but denied that this
circumstance influenced Randel's exclusion from reinstatement.
The Act does not interfere with an employer's discharge of an in-
competent employee, but Randel's employment was not terminated
by a discharge for incompetence. He was still on the pay roll when
the strike began. Nothing occurring thereafter accounts for the
respondent's refusal to reinstate him, save his known and active par-
ticipation in the strike. We find that in refusing to reinstate Randel.
the respondent discriminated against him for strike activity.
Leslie, B. 7arburton had worked for the respondent for more
,than 12 years when the strike began. He was an active member of
the U. A. W. A., participated in the sit-down strike, and was ulti-
mately convicted and fined. Warburton testified that he joined the
strikers' patrols during the occupation of the plant. The respondent
introduced no evidence bearing on his conduct during the strike.
Warburton registered to return to work and, on about March 25, he
received a telegram instructing him to report. He had been back
274 NATIONAL LABOR RELATIONS BOARD
at work less than an hour when he was told that his recall had been
a mistake, that the main office had rejected his reinstatement. There-
upon, his supervisor gave him a very favorable reference letter. At
the time of testifying he had failed to secure regular employment.
At the hearing, as in the case of McNair, Sweney stated that War-
burton had been refused reinstatement because his job as lead man
had been filled and removal of the new incumbent would cause
friction, and Douglas testified that he would not have any person in
a position of authority who had participated in the strike. We find
that the respondent's failure to reinstate Warburton was caused by
his union activities.
Joseph M. Whalen started work at the Douglas plant in October
1936. He joined the U. A. W. A. in January. During the strike, he
left the plant and picketed and distributed union literature outside.
When the strike had been settled, Whalen registered for reemploy-
ment. He returned frequently to inquire and was told that there
were no openings but that he would be sent for when wanted.
Whalen testified that, since the end of the strike, he had seen un-
familiar faces in the department in which he had formerly worked.
At the time of the hearing, Whalen had secured employment with
Interstate Engineering Corporation at the rate of 90 cents an hour,
171/2 cents more than he had last earned at the Douglas plant. When
asked why, in spite of the difference, he desired reinstatement,,
Whalen said :
A. Well, I was due for a two and a half cent periodic raise,
and I was due for a two and a half cent raise for working nights,
and a five cent blanket raise, and I ought to be worth two and a
half cents on top of that. That would be within a nickel, and
I live right there at the factory. It is worth a nickel for me
to drive to work. For instance, when Douglas is slack, and when
I work in that factory, I can work right along. Of course, on
this work, if it were slack, I wouldn't have it, and I would be out.
We find that the respondent's failure to reinstate Whalen was
caused by his union activities.
By refusing to reinstate Harry Hoepner, Thomas Clyde McNair,
Samuel Randel, Leslie B. Warburton, and Joseph M. Whalen the
respondent discriminated with respect to their hire and tenure of
employment, thereby discouraging membership in the U. A. W. A.,
and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
Before the close of the hearing, the respondent had either rein-
stated or offered reinstatement to Joseph Barthelmess, Bernardin,
Bieghler, Bowen, Carroll, Carter, Collins, Hoffman, Miller, Norred,
and Witt, the remaining 11 employees on the Exhibit "B" list. Each
• DECISIONS AND ORDERS 275w
of these persons is a member of the U. A. W. A. and played a con-
spicuous part in its strike. Each, also , applied for reinstatement
soon after the settlement of the strike, and was either refused or put-
off.
The respondent offered a variety of defenses to the charge and its
delay in reinstating these employees was discriminatory. As to some,,
it was testified that they were scheduled for discharge before the out-
break of the strike, and that failure to call them back merely carried-
out a previously determined decision. As to the others, an attempt
was made to spell out resignation from the fact that they had removed-
their tools in order to use them elsewhere. One man's nonreinstatement,
was explained by the charge that, during the strike, he had called the-,
personnel manager a "son-of-a-bitch." Upon the entire record, and
in the light of the respondent's later voluntary reinstatement of these-
strikers we reject the foregoing defenses. Finally, as to some, the-
respondent contends that their former jobs were no longer available.
But the number of persons employed by the respondent increased from
5,317 on February 1 (before the strike), to 5,522 on April 2 (shortly
after the strike), and continued to increase, and several witnesses tes-
tified that new men were hired for strikers' positions even after the-
strike was settled.
In delaying the reinstatement of Joseph Edward Barthelmess, Ray-
Bernardin , Roland Bieghler, Helen Bowen, Philip J. Carroll, John,,
Carter, Wesley R. Collins, Hyman Hoffman, George G. Miller, Ida,
Norred, and George Witt the respondent discriminated with respect
to their hire and tenure of employment, thereby discouraging mem-
bership in the U. A. W. A. and interfering with, restraining, and'
coercing its employees in the exercise of their rights guaranteed in-
Section 7 of the Act.
7. Discriminatory discharges after reinstatement
Exhibit "C" of the complaint contains the names of nine men whom,.
it is alleged, the respondent discharged subsequent to the settlement
of the strike for the reason that they had joined and assisted the-
U. A. W. A. The answer alleges that the nine were discharged for-
just cause. Amendments of the complaint made during the hearing-
reduce the number of cases in this category to seven : Chester C.
Dodd, Clyde V. Jenkins, Charles F. Lane, William O'. Nard, Vincent.
0. Racine, Laibe Shapiro, and Harlin L. Tanner.
Chester C. Dodd was hired in October 1936. He joined the
U. A. W. A. 3 weeks before the strike, struck, took part in the occupa-
tion of the plant, and was indicted. The indictment was later-
dismissed.
276 NATIONAL LABOR RELATIONS BOARD
Three weeks after the strike, Dodd was reinstated. He has since
been discharged. Dodd's supervisor and his lead man testified that
his discharge after reinstatement was occasioned by the fact that he
was incompetent, that he had broken 38 drills in 5 days in an opera-
tion in which normal breakage is 2 or 3 drills in a week. We find
that the respondent, in discharging Dodd, did not discriminate
against him for union activities.
Clyde V. Jenkins began to work for the respondent on February
4, 1937. He joined the U. A. W. A. 3 days before the strike, struck
and picketed, but did not remain in the plant. After the strike, on
about April 15, Jenkins was put back to work. He testified that the
work to which he was assigned was more arduous and required less
skill than that which he was doing before the strike. On about May
14 he was discharged.
Jenkins' supervisor and lead man testified that he had proved
incompetent both in the operation to which he had orginally been
assigned, and in the operation performed by him after his reinstate-
ment, which was described as the simplest in the plant. We find that
the discharge of Jenkins was not caused by his membership or
activities in the U. A. W. A.
Charles F. Lane worked for the respondent from May 1936 to the
time of the strike. He joined the U. A. W. A. and struck but did
not remain in ie plant. After the strike he was reinstated, and on
April 27 he was discharged.
The respondent contends that Lane was discharged for too fre-
quently leaving his department. Lane testified, however, that he
left it only to go to the tool crib for tools, as he had before the
strike.
Lane's supervisor, Anderman, discharged Lane. giving as the rea-
son the fact that Lane left the department without permission. Lane
protested. Thereupon Anderman replied, "Well, I don't want to
argue with you; the less radicals in this department we will get
along better." Lane was sergeant-at-arms of the Local, and wore
a C. I. O. button during the period of his reinstatement. We find
that the respondent discharged Lane because of his membership and
activities in the U. A. W. A. At the time of the hearing, he had
failed to secure other employment.
William O. Nard started to work at the Douglas plant in April
1936. He joined the U. A. W. A. on the day of the strike, participated
in the occupation of the plant, and was arrested and indicted. The
indictment against him was later dismissed.
Three weeks after the termination of the strike, Nard was re-
turned to his former position. After 4 weeks he was laid off, al-
legedly for lack of work. Although Nard testified that employees
over whom he had seniority were retained, he admitted that his
DECISIONS AND ORDERS 277
claim was rejected by U. A. W. A. shop stewards for lack of seniority.
Moreover, the testimony of witnesses for the respondent that a bona
fide effort was made to transfer' Nard to another department and.
that Nard is next in line for reinstatement persuade us that his lay-
off was caused by lack of work rather than union discrimination.
We find that the respondent, in laying off William O. Nard, did not
discriminate against him for union affiliation or activities.
Vincent 0. Racine started to work for the respondent in April
1936. Before the strike, his superiors had praised his work. None of
it had ever been rejected.
Racine joined the U. A. W. A. and was very active in its strike.
He served as picket captain, wearing a sign bearing that designation.
On the eve of the evacuation of the plant, he entered and was ar-
rested. The indictment against him was still pending during the
hearing, and he was ultimately convicted and fined.
After the strike Racine registered for reinstatement. He was not
called but, on the contrary, was several times told that his former
job had been filled.
On April 12, at a meeting between U. A. W. A. representatives
and representatives of the respondent, including Douglas and
Sweney, Racine took occasion to boast of his abilities, whereupon
Sweney and Douglas said -there was no reason why so able a man
could not be placed. Early in May Racine was reinstated to a posi-
tion which he had never held before, involving the installation of
bomb racks. After working there for it little over a clay, he was'
required to stand trial under the indictment against him. He re-
mained away from the plant until the close of the trial, in July.12
Upon his return, he was informed that he had been discharged for
ruining an installation upon which he had-been working, the defec-
tive work having been discovered in his absence. Since his discharge,
Racine testified, he has failed to secure other employment.
The respondent contends that Racine's discharge was caused by his
incompetency in ruining a relatively simple installation. Sweney
and Strompl both testified that he had been rehired upon the basis*
of his own estimate of himself as a first-rate mechanic. Sweney ad-
mitted having told Racine's new supervisor to discharge him if he
did not do satisfactory work.
Racine testified that he asked his supervisor for assistance, plead-
ing ignorance of the type of work to which he had been assigned, but
that help was at first withheld and later grudgingly given.
Edward L. Reynolds, Racine's supervisor, contradicted Sweney and
Strompl, stating that Racine came to him as an inexperienced worker.
He stated, also, that there had been several rejections of similar in-
>a The first trial of the sit-down strikers ended in disagreement of the jury on
July 9.
147841-39-vol 10--19
278 NATIONAL LABOR RELATIONS BOARD
stallations, and that Racine's was the only discharge for such a failure,
since the first of the year. No testimony was introduced by the
respondent bearing on Racine's conduct during the strike.
After the strike, Racine should have been reinstated to his former
position. The defense that on the basis of his own boasts he was re-
hired in a position in which he had had no previous experience smacks
of bad faith. That he was discharged for inefficiency,13 after less
than 2 days in a position altogether new to him, is incredible in view
of the testimony that similar failures had not resulted in discharge.
We find that the respondent discharged Racine for the reason that
he had joined and assisted the U. A. W. A.
Laibe Shapiro came to the Douglas plant in January 1937. He
joined the U. A. W. A. on the day of the strike, left the plant, and
picketed.
Shapiro was reinstated after the strike. A few days after his re-_
instatement he was discharged. Shapiro claimed that upon his re-
turn to work he was badgered, laughed at, and given difficult work
to do. Witnesses for the respondent, however, testified that Sha-
piro's discharge was caused by his inability to read blue-prints and his
general incompetency both in his original position and in the posi-
tion in which he was reemployed. After his discharge, Shapiro de-
manded and received a hearing before Strompl who affirmed the dis-
charge. Upon the evidence, we are unable to find that Shapiro was
discharged for union membership or activities. We find that in dis-
charging him the respondent did not engage in discrimination.
Harlin L. Tanner joined the U. A. W. A. in January 1937. He
had worked for the respondent nearly 3 years when the strike began.
He started at an hourly wage of 40 cents and had achieved increases
aggregating 25 cents per hour. When the strike began, Tanner was
a lead man. He participated in the sit-down strike and was indicted
and arrested . The indictment against him was dismissed.
Tanner was reinstated on March 18, but not to his former position
of lead man. It was explained to him by Sweney that the new
incumbent, one of Tanner's former subordinates, had been loyal
during the strike and could therefore not be displaced. There
ensued for Tanner a number of rapid transfers from job to job. Two
weeks before his discharge, which occurred on June 9, he was finally
assigned to the unpopular "graveyard" shift, working from 11: 30
p. m. to 7:30 a. m.
At 3 o'clock in the morning of the last day of his employment,
Tanner was discharged. The reason given by the respondent was that
he had been seen sitting idle for several minutes. Tanner's testimony
13 Before the Board, the respondent's counsel stated that the respondent does not
charge Racine with wilful damage.
DECISIONS AND ORDERS 279
with respect to the occasion on which he was allegedly idle is as
follows :
Q. (By Mr. Persinger.) What were you actually doing when
you apparently appeared to be doing nothing?
A. At that time there was one man underneath the floor board
trying to drive out the point of an ice pick. It got caught in
there, and I was on top to help him take it out as soon as it got
into sight. I was sitting there on the floor board watching for
the ice pick.
Tanner's final pay notice states, "unwilling to work" as the reason
for his severance from employment.
Tanner testified that he had secured employment with the Vultee
Aircraft Company at the same rate of pay as he received at the
Douglas plant. He stated that he desires reinstatement because the
Vultee plant is 28 miles from his home, and the Douglas plant only
2 miles.
The respondent's failure to reinstate Tanner to his former position,
coupled with its transfer of Tanner from job to job, and finally to the
midnight shift, all 'evidence a desire to discourage Tanner. and to
force his resignation. We find that in discharging Tanner the re-
spondent discriminated against him for membership in and assistance
to the U. A. W. A.
By discharging Charles F. Lane, Vincent 0. Racine, and Harlin
L. Tanner, the respondent discriminated with respect to their hire
and tenure of employment, thereby discouraging membership in the
U. A. W. A., and interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of
the Act.
8. Discriminatory refusals to reinstate strikers to their former
positions
Exhibit "D" of the complaint lists the names of 11 employees,
whom, it is charged , the respondent 'reinstated after the strike to
positions of less pay or less authority than they had previously en-
joyed for the reason that they had joined and assisted the U. A. W. A.
The answer in substance alleges that the respondent reinstated the 11
employees in lesser positions because their former positions were not
open or available.
After amendments to the complaint made at the hearing, only two
cases remain in this category , those of H. R. Neideffer and William
Darling.
Both men had been lead men prior to the strike . They were mem-
bers of the U. A. W. A. and participated in its strike . Both were
280 NATIONAL LABOR RELATIONS BOARD
reinstated after the strike but were deprived of their former positions
of authority . Neideffer , in addition , suffered a reduction in pay.
The respondent offered no testimony reflecting upon the conduct or
competency of either. It has simply refused to reinstate them to their
former positions . Douglas stated at the hearing that he would not
have any person in a position of authority who had participated in
the strike.
It is clear that in refusing to reinstate H. R. Neideffer and William
Darling to their former positions the respondent discriminated
against them for their membership in and assistance to the U. A. W.
A., thereby discouraging membership in the U. A. W. A., and -inter-
fering with, restraining , and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the 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.
THE REMEDY
The A. W. U. We have found that the respondent has dominated
and interfered with the formation and administration of the A. W. U.
and has contributed support to it, and that the reorganization of the
A. W. U. failed to free it from the taint of the respondent 's domina-
tion, interference , and support . The A. W. U. cannot serve the
respondent 's employees as their genuine representative . Restoration
to the respondent's employees of the rights guaranteed them under
the Act requires that we order the respondent to refrain from recog
nizing the A. W. U. as the representative of its employees for the
purposes of collective bargaining.
Brucker and Ring. Although we have found that the respondent
discriminatorily discharged Brucker and Ring, the question of their
reinstatement is not before us in this proceeding.
Victims of discrimination and strikers. We have found that the re-
spondent discriminatorily refused to reinstate certain of its employees'
following the strike.- Consequently, with certain exceptions which
we shall mention, we shall order it to offer them reinstatement with
back pay. We have also found that the strike at the close of which
the refusals to reinstate occurred was called in protest against unfair
labor practices. - In the presence of such a finding, in order to
effectuate the policies of the Act, we have usually required the eln-
DECISIONS AND ORDERS 281
ployer to reinstate strikers upon application and to compensate them
for loss of pay occasioned by any refusal of such application."
Thus, even in the absence of a finding of discrimination, our order
in this case would require the respondent to take the action indicated,
unless the special considerations which we shall discuss effect the
appropriateness of such relief. We shall not require reinstatement of
Herscovitz and Whitaker, who have indicated that they dd not desire
to return, or Charles Edward Barthelmess, as to whom a refusal of
reinstatement, which has actually occurred, appears justified. The
order will be modified also in the case of Ortmann, who is ineligible
for full reinstatement.
After full consideration, we reject the contention that reinstate-
ment of any of the strikers is excused or is precluded by his par-
ticipation in or behavior during the sit-down strike. As we have
stated, the action of the strikers was undertaken in protest against
the unfair labor practices of the respondent.15 The strike was con-
ducted without violence or serious damage to property,'- and the re-
spondent reinstated the great majority of the participants upon ap-
plication. Moreover, separate review of the conduct during the strike
of individuals in this category 17 reveals .none whose' return to em-
ployment under normal conditions, free from the provocation of un-
fair labor practices, seems likely to prove an obstacle to harmonious
relations between the respondent and its employees.-
The "38." The circumstances surrounding the settlement of the
strike were such that men on the list knew at once that they would
not be reinstated upon application. We hold, therefore, that. indi-
vidual applications for reinstatement were not necessary to start the
period for which back pay should be ordered. We shall order the
respondent to offer reinstatement to their former positions to the
individuals on the "38 list," with the exception of Ortmann, who is
ineligible for full reinstatement, and of Herscovitz and Whitaker,
who do not desire to return, with back pay to each of them from
March 12, 1937, the day after the strike was settled, to the date of
the respondent's offer, less their net earnings 19 in the meantime.
14 Matter of McKaig-Hatch, Inc, supra footnote 5; Matter of Oregon Worsted Company
and United Tewtile Workers of America , Local 2435, 3 N. L. R. B 36.
15 Cf. Matter of Electric Boat Company and Industrial Union of Marine and Ship-
building Workers of America, Local No. 6, 7 N L . It. B 572; Matter of Republic Steel
Corporation and Steel Workers Organising Committee, 9 N L. R B. 219
16 Section III, B. 2, supra.
17 Section III, B. 5, supra
18Cf Matter of Electric Boat Company, supra , footnote 15
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 else-
where 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 and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N L. It. B. 440
282 NATIONAL LABOR RELATIONS BOARD
Herscovitz and Whitaker are each entitled to back pay from March
12, 1937, to the date upon which each secured the employment held
by him at the time of testifying at the hearing.
Ortmann, an alien, is disqualified for work on construction for the
United States. The respondent contends, but the record is incon-
clusive, that at its plant there is no segregation between construction
for the United States and other construction. We shall order the
respondent to offer Ortmann such available employment, for which
as an alien he is eligible, as is most nearly equivalent to that which
he had prior to the strike, dismissing, if necessary, any person hired
since the beginning of the strike to take Ortmann's place, and, if no
such employment exists, to place him upon a preferential list for such
employment when it becomes available. Ortmann is entitled to back
pay from March 12, 1937, to the date upon which the respondent
offers him reinstatement or places him upon a preferential list in com-
pliance with our order. Since Ortmann's ineligibility for certain
work was not a factor in the refusal of his reinstatement after the
strike, the'back pay to which he is entitled should be calculated, with-
out regard to that factor, on the basis of the amount he would have
earned if he had been reinstated to his former or to a substantially
equivalent position when he applied. After Ortmann has been ad-
mitted to United States citizenship, the respondent must, upon ap-
plication, offer him full reinstatement to his former position. The
respondent must also make Ortmann whole for any loss of pay re-
sulting from its refusal of his application for full reinstatement.
Exhibit "B." We shall order the reinstatement of Hoepner, Mc-
Nair, Randel, Warburton, and Whalen with back pay to each from
the date he first applied for reinstatement after the strike to the
date of the respondent's offer of reinstatement, less his net earnings
in the meantime. Each of the 11 employees on the "B" list who had
been reinstated or offered reinstatement before the close of the hear-
ing is entitled to back pay from the date of his first application for
reinstatement after the strike to the date upon which he was offered
reinstatement.
Exhibit "C." We shall order the reinstatement of Lane, Racine,
and Tanner to the positions from which they were discharged with
back pay to each from the date of his discharge to the date of the
respondent's offer of reinstatement.
Exhibit "D." Having found that the reinstatement of Neideffer
and Darling to positions inferior to those held by them before the
strike was discriminatory, we shall order the respondent to offer
them reinstatement to their former positions. Neideffer, in addition,
is entitled to receive as back pay the difference between the amount
he would have earned if he had been reinstated to his former position
DECISIONS AND ORDERS 283
and the amount actually earned from the date of his reinstatement to
the date of the respondent's offer.
Upon the basis of the foregoing findings of facts, and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Automobile Workers of America, International Union,
Douglas Local No. 214; Local No. 311, International Association of
Machinists; and Aircraft Workers Union, Inc., are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of Aircraft Workers Union, Inc., and contributing support
to it, the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Claude R. Anderson, Jack Boyer, Lyle Griffith, Silas V.
Nimz, Jack Ortmann, Harry Owens, Isadore Patt, Eugene B. Page,
Virgil G. Sharp, Charles F. West, Edward F. Wilson, Clyde E.
Allyn, Eugene Midford Barr, E. P. Blair, Floyd Blevins, James
Roxie Cherico, Richard N. Esterwold, Delos Eyer, Walter Leo Hall,
Harvey P. Hammond, Jacob Herscovitz, Hastings M. Jones, Carl H.
Linsenmier, John H. Whitaker, Harry Hoepner, Thomas Clyde Mc-
Nair, Samuel Randel, Leslie B. Warburton, Joseph M. Whalen, Jos-
eph Edward Barthelmess, Ray Bernardin, Roland Bieghler, Helen
Bowen, Philip J. Carroll, John Carter, Wesley R. Collins, Hyman
Hoffman, George C. Miller, Ida Norred, George Witt, Charles F.
Lane, Vincent O. Racine, Harlin L. Tanner, H. R. Neideffer, and
William Darling, and thereby discouraging membership in United
Automobile Workers of America, International Union, Douglas
Local No. 214, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (3) of the
Act. -
4. By interfering with, restraining, and coercing its employees in
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.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
284 NATIONAL LABOR RELATIONS BOARD
spondent, Douglas Aircraft Company, Inc., and its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Dominating and interfering with the administration of Air-
craft Workers Union, Inc., or the formation or administration of
any other labor organization of its employees, and contributing sup-
port to Aircraft Workers Union, Inc., or to any other labor organi-
zation of its employees;
(b) Discouraging membership in United Automobile Workers of
America, International Union, Douglas Local No. 214, or any other
labor organization of its employees, by discharging or refusing to
reinstate any of its employees or in any other manner discriminating
in regard to their hire or tenure of employment or any terms or
conditions of their employment;
(c) In any other manner interfering with, restraining, and coerc-
ing 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 o%vn choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid and 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) Refrain from recognition of Aircraft Workers Union, Inc.,
as representative of any of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work;
(b) Offer to Claude R. Anderson, Jack Boyer, Lyle Griffith, Silas
V. Nimz, Harry Owens, Isadore Patt, Eugene B. Page, Virgil G.
Sharp, Charles F. West, Edward F. Wilson, Clyde E. Allyn, Eugene
Midford Barr, E. P. Blair, Floyd Blevins, James Roxie Cherico,
Richard N. Esterwold, Delos Eyer, Walter Leo Hall, Harvey P.
Hammond, Hastings M. Jones, and Carl H. Linsenmier immediate
and full reinstatement, respectively, to their former positions, with-
out prejudice to their seniority and other rights and privileges;
(c) Make whole the individuals enumerated in paragraph 2 (b) of
this Order for any loss of pay they have suffered by reason of the
respondent's discrimination in regard to their hire and tenure of em-
ployment, by payment to each of them of a sum of money equal to
that which each would normally have earned as wages during the
period from March 12, 1937, to the date of the respondent's offer of
reinstatement, less his net earnings during that period;
(d) Make whole Jacob Herscovitz and John H. Whitaker for any
loss of pay they have suffered by reason of the respondent's dis-
DECISIONS AND ORDERS 285
crimination in regard to their hire and tenure of employment, by
payment to each of them of a sum of money equal to that which each
would normally have earned as wages during the period from March
12, 1937, to the date upon which each started in the employment in
which he was engaged at the time of testifying at the hearing of this
proceeding, less his net earnings during that period;
(e) Offer to Jack Ortmann such employment, for which as an alien
he is eligible, as is most nearly equivalent to that which he had prior
to February 23, 1937, dismissing, if necessary, any person hired since
the beginning of the strike to take Ortmann's place and, if no such
employment exists at the respondent's plant, place Jack Ortmann upon
a preferential list to be offered such employment when it becomes
available; and offer him such employment in accordance with said
list when it becomes available;
(f) Make whole Jack Ortmann for any loss of pay he may have
suffered by reason of the respondent's discrimination in regard to his
hire and tenure of employment, by payment to him of a sum of
money equal to that which he would normally have earned as wages
at the respondent's plant in the position occupied by him prior to
February 23, 1937, or in a position substantially equivalent thereto,
from March 12, 1937, to the date of the respondent's offer of employ-
ment or placement upon a preferential list pursuant to paragraph 2
(e) of this Order, less his net earnings during that period;
(g) Upon application, after Jack Ortmann has been admitted to
United States citizenship, offer him full reinstatement to his former
position without prejudice to his seniority and other rights and
privileges ;
(h) Make whole Jack Ortmann for any loss he may suffer by_
reason of the respondent's refusal of his application for reinstatement
in accordance with paragraph 2 (g) of this Order, by payment to him
of a sum of money equal to that which lie would normally have
earned as wages from the date of such refusal of his application to
the date of offer of reinstatement, less his net earnings during that
period ;
(i) Offer to Harry Hoepner, Thomas Clyde McNair, Samuel
Randel, Leslie B. Warburton, and Joseph M. Whalen immediate and
full reinstatement, respectively, to their former positions, without
prejudice to their seniority and other rights and privileges;
(j) Make whole the individuals enumerated in paragraph 2 (i)
of this Order for any loss of pay they have suffered by reason of the
respondent's discrimination in regard to their hire and tenure of em-
ployment, by payment to each of them of a sum of money equal to that
which each would normally have earned as wages during the period
from the date when each first applied for reinstatement after March
286 NATIONAL LABOR RELATIONS BOARD
11, 1937, to the date of the respondent's offer of reinstatement, less
his net earnings during that period ;
(k) Make whole Joseph Edward Barthelmess, Ray Bernardin,
Roland Bieghler, Helen Bowen, Philip J. Carroll, John Carter,
Wesley R. Collins, Hyman Hoffman, George C. Miller, Ida Norred,
and George Witt for any loss of pay they have suffered by reason of
the respondent's discrimination in regard to their hire and tenure of
employment, by payment to each of them of a sum of money equal to
that which each of them would normally have earned as wages during
the period from the date when each first applied for reinstatement
after March 11, 1937, to the date when each was offered reinstatement
by the respondent, less his net earnings during that period;
(1) Offer to Charles F. Lane, Vincent O. Racine, and Harlin L.
Tanner immediate and full reinstatement, respectively, to the posi-
tions from which they were discharged, without prejudice to their
seniority and other rights and privileges ;
(m) Make whole the individuals enumerated in paragraph 2 (1)
of this Order for any loss of pay they have suffered by reason of the
respondent's discrimination in regard to their hire and tenure of
employment, by payment to each of them of a sum of money equal
to that which each would normally have earned as wages during
the period from the date of the discharge of each to the date of the
respondent's offer of reinstatement, less his net earnings during that
period;
(n) Offer to H. R. Neideffer and William Darling immediate and
full reinstatement, respectively, to the positions held by them prior
to February 23, 1937, without prejudice to their seniority and other
rights and privileges ;
(o) Make whole H. R. Neideffer for any loss of pay he has suf-
fered by reason of the respondent's discrimination in regard to his
hire and tenure of employment by payment to him of a sum of
money equal to that which he would normally have earned as wages
during the period from the date of his reinstatement to employment
after March 11, 1937, to the date of the respondent's offer to reinstate
him to the position held by him prior to February 23, 1937; less his
net earnings during that period;
(p) Post immediately in conspicuous places throughout, its plant
notices stating (1) that the respondent will cease and desist as afore-
said; (2) that the respondent will refrain from recognizing Aircraft
Workers Union, Inc., as the representative of any of its employees
for the purposes of dealing with it with respect to grievances, labor
disputes, wages, rates of pay, hours of employment, or conditions
of work;
(q) Maintain such posted notices for a period of at least thirty
(30) consecutive days from the date of posting;
DECISIONS AND ORDERS 287
(r) Notify the Regional Director for the Twenty-first 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, in so far as it al-
leges that the respondent has discriminated in regard to the hire and
tenure of employment of Charles Edward Barthelmess, Chester C.
Dodd, Clyde V. Jenkins, William O. Nard, and Laibe Shapiro, be,
and it hereby is, dismissed.