Fairchild Engine and Airplane Corp.

National Labor Relations Board - Board Decisions

May 30, 1942

41 N.L.R.B. 521 (N.L.R.B. 1942)

- In the Matter of FAIRCHILD ENGINE AND AIRPLANE CORPORATION and
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORK-
ERS OF AMERICA, C. I. O.
In the Matter of FAIRCHILD ENGINE AND AIRPLANE CORPORATION and
THE INTERNATIONAL ASSOCIATION OF MACHINISTS
Cases Nos. C-2107 and C-2108, respectively.Decided May 30, 1942
Jurisdiction : aircraft engine and airplane manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: permitting and assisting a rival union to
solicit members, to collect dues, and to electioneer on company time and prop-
erty and denying such privileges to two competing labor organizations ; 'advis-
ing its employees to join the rival union and warning them to refrain from
beccming or remaining members of the other competing labor organizations.
-Discrimination: 'employee-discharged -because of union membership and activity ;
other charges, dismissed.
Remedial Orders : employer ordered to cease and desist from discouraging mem-
bership in competing labor organization and from engaging in unfair labor
practices; reinstatement and back pay awarded.
Mr. Tlhurlow Smoot, for the Board.
Lane, Buslwng efi Byron, by Mr. William Preston Lane and Mr.
David W. Byron, of Hagerstown, Md., for the respondent.
Mr. Frank J. Bender, of Baltimore, Md., for the C. 1. 0.
Mr. James E. Poulton, of Baltimore, Md., for the I. A. M.
Weinberg and Green, by Mr. Dulany Foster, of Baltimore,, Md., and
Wagaman and Wagaman, by Mr. CLarles F. Wagaman, of Hagers-
town, Md., for the Independent.
Mr. Marvin C. Wahl, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Automobile, Aircraft
and Agricultural Implement Workers of America, C. I. 0., -herein
called the C. I. O., the National Labor Relations Board, herein called
the Board, by the Regional Director for the Fifth Region (Baltimore,
41 r L. R. B., No. 106.
521
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
Maryland), issued its complaint dated October 24, 1941, against Fair-
child Engine and Airplane Corporation, Hagerstown, Maryland,
herein called the respondent, alleging that the respondent had engaged
in and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1), and (3) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint, together with notice of hearing
thereon, were duly served upon the respondent, the C. I. 0., and Inde-
pendent Aircraft Workers, Inc., a labor organization alleged in the
complaint to have been assisted by the respondent and herein called
the Independent.
Thereafter, International Association of Machinists, affiliated with
the American Federation of Labor, herein called the I. A. M., duly
filed a charge with said Regional Director, alleging that the respondent
had engaged in and was engaging in unfair labor practices, within the'
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
Act. On January 3, 1942, the Board entered its order consolidating
the two cases. On January 6, 1942, Board's counsel served written
notice, together with copies of the charge filed by the I. A. M., upon'
all parties that he would move at the opening of the hearing herein to
amend the complaint. The motion was ' accordingly made and on
January 19, 1942, it was granted without objection and an. amended
complaint was filed incorporating allegations covered by the charges
of the I. A. M.
' With respect to the unfair labor practices, the amended complaint
alleged in substance that the respondent, at its Hagerstown, Maryland,
plants (1) since about September 1, 1940, assisted the Independent
by (a) permitting and encouraging solicitation of membership therein
on the respondent's property and time, (b) affording the Independent
plant facilities and denying these privileges to' members of .other
labor organizations, and (c) warning and advising its employees to
join the Independent or to designate it as their bargaining agent; (2)
since about September 1, 1940, urged, persuaded, and warned its em-
ployees to refrain from becoming or remaining members of the C. I. O.
or the I. A. M., and threatened them with discharge or other reprisals
if they did so; (3) on or about March 6, 1941, discharged, and there-
after refused to reinstate, James B. Cole for the reason that he assisted
the C. I. O. and engaged in concerted activity with other employees;
(4) on or about November 15, 1941, discharged, and thereafter refused
to reinstate, Ervin N.' Snyder, for the - reason that he- assisted' the
I'. A. M. and engaged in concerted activity with other employees; and
(5) by such acts interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
On January 20, 1942, during the course of the hearing, the respond-
ent filed its answer to the amended complaint, admitting certain
d'AIRCHILD ENGINE AND AIRPLANE CORPORATION 523,
allegations respecting its business, but -denying that it had engaged
in the alleged unfair labor practices.
Pursuant to notice, a hearing was held at Hagerstown, Maryland,
on January 16 and from January 19 through 23, 1942, before Josef L..
Hektoen, the Trial Examiner duly designated by the Chief Trial
Examiner. The Board, the respondent, and the Independent were
represented by counsel and the C. I. O. and the I. A. M. by their
representatives; all participated in the hearing. All parties were
afforded full opportunity to be heard, to examine aild cross-examine
witnesses, and to introduce evidence bearing upon the issues. At the
commencement of the hearing, the Independent's motion to intervene
was granted by the Trial Examiner. Before the close of the hearing,,
the motion, of counsel for the Board to conform the complaint to the
proof in minor particulars was granted without objection. During
the course of the hearing, the Trial Examiner ruled on other motions
and on objections to the admission of evidence. The Board has re-,
viewed the rulings of the Trial Examiner and finds that no prejudicial
errors were committed . The rulings are hereby affirmed.
The Trial Examiner thereafter filed his Intermediate Report, dated
February 19, 1942, copies of which were duly served upon the parties.
He found that the respondent had engaged in and was engaging in
unfair labor practices, within the meaning of Section 8 (1) and (3)
and Section 2 (6) and (7) of the Act, and recommended that it cease
and desist therefrom and take certain affirmative action, including the
reinstatement of James B. Cole with back pay, deemed necessary to
effectuate the policies of the Act. On March 9 and 20, 1942, the
I. A. M. and the respondent, respectively, filed exceptions to the
Intermediate Report, and on March 28, 1942, the respondent filed a
brief in support of its exceptions.
Pursuant to notice, a hearing was held before the Board at Wash-
ington, D. C., on April 12, 1942, for the purpose of oral argument.
The respondent was represented by counsel and the C. I. O. by its rep-
resentative, and both parties participated in the argument. The
L A. M. filed a brief in lieu of oral argument. The Board has consid-
ered the exceptions to the Intermediate Report and the briefs in sup-
port thereof and insofar as the exceptions are inconsistent with the
findings, conclusions, and order set forth below, finds them to be
without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Fairchild Engine and Airplane Corporation, is a
Maryland corporation operating plants at Hagerstown, Maryland, and
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at Farmingdale, New York, where it is engaged in the manufacture,
sale , and servicing of aircraft engines and airplanes. This proceeding
concerns only the Fairchild Aircraft Division, located at Hagerstown.
During the year 1940, in connection with its operations at Hagerstown,
the respondent purchased wood, aluminum, and other materials valued
in excess of $1,500,000, over 50 percent of which were received from
sources outside the State of Maryland. During the same period, over
50 percent of its finished products, having a value in excess of $2,000,-
000, were shipped from its Hagerstown plants to points outside the
State of Maryland. In 1941, the respondent's purchases and sales out-
side the State of Maryland were approximately the same as in 1940.
At the time of the hearing, the respondent operated six plants at
Hagerstown, where it employed more than 3,500 persons. The re-
spondent admits that it is engaged in commerce within the meaning of
the Act.
H. THE ORGANIZATIONS INVOLVED
United Automobile, Aircraft and Agricultural Implement Workers
of America is a labor organization affiliated with the Congress of In-
dustrial Organizations. International Association of Machinists is a
labor organization affiliated with the American Federation of Labor.
Independent Aircraft Workers, Inc., is an unaffiliated labor organiza-
tion. All admit to membership employees of the respondent at its
Hagerstown, Maryland, plants.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint , and coercion
1. Assistance to the Independent
During the summer of 1940 , the I . A. M. began organizational activi-
ties among the employees at the Hagerstown plants. Shortly there-
after , the Independent and the C. I. O. also started to organize.
Charles F. Slick , superintendent of Plant I, testified without contra-
diction that in September , he instructed the foremen to take no part
in-the union activities of the employees and to express no opinion to
them as to any union preferences they might have ,2 and that he repeated,
these instructions on three subsequent occasions. According to his
further testimony, Slick told the foremen not to allow canvassing or
soliciting for any union on company time or property.
i At the time of the hearing, one plant was under construction at Hagerstown
2 In addition , notices announcing the respondent 's "neutrality" were posted throughout
the plant as a result of charges filed by the C. I. O . on February 10, 1941 . The charges were
thereafter withdrawn.
FAIRCHILD ENGINE AND AIRPLANE CORPORATION 525
Despite these express instructions, activity on behalf of the Inde-
pendent was permitted to fake place on the respondent's premises
during working hours, without hindrance by foremen or supervisors.
Thus, according to the uncontradicted and credible testimony of Walter
C. Keifer, one of the respondent's employees, during September 1940,
employees J. Earl Keller and Raymond W. Hammer, the latter having
been ,foreman of the welding department on the night shift until a
few days previously, spent an entire afternoon in Plant I, during
working hours, openly soliciting signatures from about 100 employees
to petitions entitled "Independent Union." During this month similar
.petitions were circulated throughout other plants of the respondent
.and the signatures of approximately 700. employees were obtained.
According to Keifer's further uncontradicted and credible testimony,
about 2 weeks after they had solicited the signatures to the petitions,
_Keller and Hammer returned to Plant I during working hours and
spent several hours securing applications for membership in the Inde-
pendent from those who had signed the petitions.' Walter Comiskey
and Merle Shindle were the foremen in whose departments the solicita-
tion occurred. Comiskey was not called as a witness and Shindle
denied merely that he had observed Hammer engaged in "soliciting
membership." We find, as did the Trial Examiner, that Comiskey
and Shindle observed Keller and Hammer obtaining signatures to
-the petitions and to the applications and did not attempt to stop such
activity. Moreover, it does not appear from the record that Keller
or Hammer suffered any loss of pay for the time thus spent.
Following the circulation of the petitions-and the drive to secure
signed applications for membership in the Independent, open activity
during working hours by members of the respondent's supervisory
staff, as well as by ordinary employees, continued on behalf of the
Independent until shortly after August 4, 19414 These activities
,were not confined to-obtaining members, but extended to the open
collection of dues, warning employees not to join or support the
I. A. M. or the C. I. 0., and electioneering among the employees prior
to each of three elections conducted by the Board .5 William H.
McLean, an employee of the respondent, testified that in November
1940, lie was solicited for the Independent during working hours by
Glenn A. Divelbiss, then leadman over 12 to 30 employees, and that
Divelbiss told him that the Independent would obtain vacations with
pay, prevent strikes, and keep its funds in town so that they could be
3 Shortly thereafter, the Independent was incorporated under the laws of Maryland, and
--among its incorporators were Keller and Hammer.
4 On that date, the C I 0 filed objections to an election conducted by the Board on July
29, 1941. There had been two previous elections-one on May 13 and the other on June 27,
1941. Since neither election had resulted in the selection by a majority of a collective
bargaining representative, the July 29 election was directed and held.
bldem
526 DEiCISIONS OF NATIONAL LABOR RELATIONS BOARD
used for parties and "different things." McLean testified further that,
after Divelbiss had become, on January 24, 1941, night superintendent
.of Plant I, Divilbiss continued to solicit him, during working hours,
for the Independent, using the same arguments in its favor as before,
and that such, solicitations continued until July 29, 1941, the day of
the final election. Divelbiss, according to McLean, also solicited other
employees, among them James Penn.
Penn testified that during the first part of January 1941, Divelbiss
devoted most of a working night in talking to him and some 75 other
employees about joining the Independent, obtaining 10 to 15 signa-
tures on application cards, and collecting dues from such applicants.
,Penn also testified that Divelbiss, after he became superintendent,
approached him concerning the Independent on many occasions until
the time of Penn's transfer to another plant in May 1941, and that, on
one occasion shortly after his promotion to night superintendent, Divel-
biss said to Penn, "I am not allowed to talk about it, but ... I would
like'to see the I. A. W. [the Independent] get inhere because there
would be no strikes."
Divelbiss categorically denied that he indulged in any activity for
the Independent before or after his promotion in January 1941. Divel-
biss admitted, however, that he preferred the Independent to the other
two unions, and that he signed an application card for membership
in the-Independent before January 24, 1941, but paid no dues. Al-
thoughDivelbiss habitually ate lunch with approximately 60 men, he
testified that he never heard any discussion about "unions." 'We
consequently do not accept the denials of Divelbiss and we credit the
testimony of McLean and Penn, as did the Trial Examiner.
According to the testimony of Penn, McLean, and James B. Cole,
an employee of the respondent whose discharge is hereinafter con-
sidered, in January 1941, Robert DeLauder, then night superintendent
of Plant V, frequently discussed labor organizations with the men,
and although he never supported the Independent directly, he attacked
the C. I. 0. as a union controlled by "Communists" and "racketeers."
While DeLauder denied ever discussing "unions," the Trial Examiner
credited, and we likewise credit, the testimony of Penn, McLean, and
Cole.
. - McLean testified that after Isaac Ward became a foreman in Febru-
ary or March 1941, he assisted a member of the Independent in attempt-
ing to sign up McLean in that organization by attempting to procure
for him an application for membership card. Ward denied that he
solicited any members for the Independent either before or after join-
ing the respondent's supervisory staff. Moreover, he testified-that at
no time did he see any activity on the part of the Independent in the
plant. The Trial Examiner did not` credit the denial of -Ward; nor
do we.
FAIRCHILD ENGINE -AND AIRPLANE CORPORATION 527
About 2 weeks before the first- election conducted by the Board,
Warren Kauffman, the machine shop foreman, stated t6-Walter C.
Keifer and another employee, according to Keifer, "I will tell you
boys, ... the A. F., of L. or the C. I. 0. neither one is any good, if
you boys know what is good for you you'had better support the Inde-
pendent." Kauffman denied saying that neither the C. I. 0. nor the
A. F. of L. "is any good." He testified that he could not recall saying
that it was to the interest of the employees that they support the Inde-
pendent. The Trial Examiner credited the testimony of Keifer, and
we do likewise.
Keifer, Penn, Isaac N. Purdham, and Karl Stoner, all employees of
the respondent, testified without contradiction, and we find, that
numerous employees were permitted to leave their places of work to
solicit members and collect dues for the Independent. -The interest
of Keller, who became president, of the Independent, and Hammer
did not cease after their initial solicitation and organizational efforts.
't'hey, together with John M. Crosswhite, another employee, continued
t.t solicit memberships for the Independent and to collect dues in De-
partment 32 of Plant I, during working hours, up to and including
the time of the elections. Although Department 32 was easily observed
from the general factory manager's desk, no attempt was ever made
to stop suw h activity. Charles Bast, a gang leader, and Russell Keifer,
an employee, also left their places of work and solicited memberships
for the Independent, without interference by any of the respondent's
supervisors, according to the uncontrovertecl testimony of McLean,
Cole, and Keifer, which Ave credit.
Employee Edwin Schroyer was also active for the Independent until
after the third election on July 29, 1941. Daniel E. Moats, an em-
ployee of the respondent who was not a member of any labor organi-
zation, testified that Schroyer frequently solicited memberships in
the presence of his foreman, Joseph N. Hollingshead; without hin-
drance or interference. Hollingshead testified that he could not recall
observing Schroyer "soliciting in behalf of any union,. . ' . during
working hours." A few days before the last election, at about 1: 30
p. in., Keifer testified, he filched a copy of a radio address to- be given
that night for the Independent by Schroyer. Shortly thereafter,
Schroyer discovered the loss and reported it to Hollingshead, adding
that he knew who had stolen the speech: Schroyer thereupon left his
place of work and did not return before the 5 o'clock quitting time.
Hollingshead testified that Schroyer left the department at about
quitting time and that he did not know what Schroyer did after he left,
nor did he attempt to find out. We find, in, accordance with Keifer's
testimony, that Schroyer was-absent from the department for a con-
siderable period of time, and that Hollingshead knew that Schroyer
was devoting his time to Independent business. It does not appear
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the record that Schroyer suffered any loss of pay for the time so,
spent away from his work.
Stoner, a member of the I. A:-M., testified as follows, concerning his
attempts to induce the respondent to accord the I. A. M. equal treat-
ment with the Independent : on four or five occasions following the
third election, Stoner observed Edward Waggner, a fellow worker,
leaving his place of work and soliciting memberships for the Inde-
pendent among some of the new employees. Stoner complained to
Carl G. Ahalt, his foreman, each time that he observed Waggner
soliciting and finally told Ahalt that if such conduct was allowed to
continue, he likewise intended, to solicit for the I. A. M. during work-
ing hours. Although Ahalt at first refused to interfere with Waggner,
he agreed to talk to him after Stoner reaffirmed his intention to solicit
for the I. A. M. during working hours. After Ahalt finally brought
the matter to the attention of Plant Superintendent Slick, the latter
conferred with Stoner, who again contended that if the Independent
was allowed to solicit memberships during working hours, that privi-
lege should be extended to the other, organizations in the plant. Slick
thereupon ordered Waggner to cease his union activities but did not so
instruct any supervisors or other employees.
- 2. Conclusions as to assistance to the Independent
When union activities were getting under way at the respondent's
plants at Hagerstown during the summer of 1940, the respondent
extended valuable aid to the Independent in its organizational efforts
and gave considerable impetus to its membership drive by permitting
employees Keller and Hammer to solicit signatures for the organizing
petitions and the applications for membership on its time and prop-
erty. The announced policy of the respondent that its supervisory
staff was to remain completely neutral, that it was to take no part in
any union activities, and that foremen were not to permit solicitation
for any union on company time, was clearly not applied to the Inde-
pendent.,, This is apparent not only from the activities of employees
in behalf of the Independent, carried on with the express or tacit
approval of the respondent, but also by the conduct of various members
of the respondent's supervisory staff,, who openly exhibited their pref-
erence for the Independent and their hostility toward the C. I. 0.
and the I. A. M. and who themselves solicited members for the In-
dependent during working hours. That this policy was, however,
enforced against the C. I. 0. and the I. A. M. is shown by Stoner's
O Even though the actions of its supervisors were in violation of the orders of the re-
spondent's management and contrary to its expressed policy, they nevertheless constituted
unfair labor practices by. the respondent H J Heinz Co. v N. L R. B., 311 U S 514;
Solvay Process Company v. N L. R B, 117 F. (2d) 83, (C C. A. 5) ; cert den. 313 U S.
596; N. L. R. B. v. A. S. Abell Co., 97 F. (2d) 951, (C. C. A 4).
FAIRCHILD ENGINE AND AIRPLANE CORPORATION 529
strenuous protest against the solicitation of employees by Waggner, a
member of the Independent, during working hours, by Stoner's threat
to engage in similar activity in behalf of the I. A. M., and by Slick's
prohibition - only of Waggner's activities, after Stoner's complaint.
Such conduct on the part of the respondent is clearly not consistent
with the neutrality required by the Act.
We find that, by permitting and assisting the Independent to solicit
-members, to collect dues, and to electioneer on company time and prop-
erty and by denying such privileges to the C. I. O. and the I. A. M.,
and by advising its employees to join the Independent and warning
them to refrain from becoming or remaining members of the C. I. O.
or the I. A. M., the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. The discriminatory discharge of Cole
James B. Cole was employed by the respondent as a skilled carpenter
on the night shift in the wood-wing-assembly department from about
May 15, 1940, to March 7, 1941. During his 10-month employment
with the respondent, Cole obtained two individual wage increases, the
second having been received on November 11, 1940. Cole joined the
C. I. O. in October 1940 and refused thereafter to become a member of
the Independent. He openly expressed a preference for the C. I. O.
over other labor organizations and soon became well known among his
fellow employees and supervisors as wrardent supporter of the C. I. O.
Cole testified as follows concerning a conversation he had in Novem-
ber 1940 with Marvin S. Fox, his leadman, and DeLauder, night super-
intendent of the plant in which he worked: Fox told him that their
superiors wanted Cole to join the Independent. Cole replied that he
would not do so. In the course of the conversation, DeLauder ap-
proached the two men and inquired as to the nature of their conversa-
tion. When Fox told him that Cole refused to join the Independent,
DeLauder asked Cole which union he preferred, and Cole rejoined
that it was the C. I. O. DeLauder then said to Cole, "I am telling
you, you had better be careful . . . and watch out for your job .. .
you won't have any job to look after." DeLauder denied having ever
discussed the question of unions with Cole. However, Penn and
McLean, both of whom worked with Cole, testified that they often
heard DeLauder talking to Cole about labor organizations during
work. Fox was not questioned concerning this incident. We find, as
did the Trial Examiner, that the above conversation occurred substan-
tially as testified to by Cole.
During one of the lunch periods on the night shift, late in Novem-
ber or early in December 1940, Cole became involved in an argument
463892-42-vol 41-34
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Leadman Divelbiss-and several employees, including- Ward and
Bast. Fox was also present but did not participate in, the discussion.
Cole and Fox testified that Divelbiss and Bast began the argument by
stating that certain members of the C. I. 0. were Communists and that
when Cole demanded proof of their assertions, a loud and heated dis-
cussionensued. G. E. Cramer, a superintendent of the plant, and
DeLauder appeared in the door of the plant office while the argument
-was in progress and started towards the arguing employees. They
heard loud talking but nothing of what was said. The argument
terminated when the usual signal to return to work was sounded.
Divelbiss testified that Cole started the argument, but he admitted
taking part in it. Bast was not called as a witness. We credit the-
testimony of Cole and Fox. as did the Trial Examiner.
Fox testified, without contradiction, and we find, that about 2 days
later, Cramer and DeLauder sought to obtain a statement from Fox
concerning Cole's participation in the above-described incident; that
they did not ask him what Divelbiss and Bast had said; that Fox °
refused to make any statement or report to the respondent concerning
Cole; that neither Cramer nor DeLauder spoke to him about Cole
again; and that Fox told Cole of the inquiry he had received from -
Cramer and DeLauder and advised him to stop discussing unions.
Admittedly, neither Cramer nor DeLauder interviewed any of the
participants involved in the discussion. Nevertheless, oil December 4,
1940, Cramer reported in writing to D. H. Revell, then production man-
ager, that Cole was dissatisfied with his job and was "unable to get
along with other men., His attitude interferes with regular work by
disrupting others," and that-when asked by DeLauder to "calm down
or change may be necessary," Cole replied, "Don't give a D- if you
fire me." Cramer testified that he wrote the report because "We are
supposed to report anything like that right away, not to wait until
afterwards because if we have a man that we want to fire why a report
-that-may come in later after it has happened wouldn't be no good."
Cramer further testified that DeLauder told him that Cole had prom-
ised to try to do better but admitted that lie did not include DeLauder's
statement in his report. '
Cole, together with two members of his gang, Penn and McLean,
testified, and we find, despite DeLauder's denial, that DeLauder, oil
later occasions, entered into discussions with Cole concerning the
C. I. 0. and frequently made derogatory remarks respecting that or-
ganization, stating that it was controlled by "Communists" and "rack-
eteers." The Trial Examiner found, and the record indicates, that
Cole was in easily excitable person, and these discussions invariably
had the effect of "getting him going," in the words of Fox, on a vigorous
defense of the C. I. 0.
' He was not a member of any labor organization
FAIRCHILD ENGINE AND AIRPLANE CORPORATION 531
• The testimony of Fox, Cole, Penn, and McLean shows that Cole
-vas the subject of frequent baiting, encouraged and led by DeLauder.
'DeLauder would frequently begin arguments with Cole about the war,
Hitler, labor unions, and other controversial subjects, on which he
-had discovered that Cole held strong opinions, in order to "get him
going." Cole always supported the C. I. O. in discussions concerning
'labor' organizations. McLean and Penn testified that commencing in
November 1940; DeLauder habitually "goosed" Cole and tickled him
in the ribs during work, persisting in this conduct until about the
time of his discharge. It is clear that other employees after November
engaged in similar conduct without reprimand. DeLauder's denial
of the conduct attributed to him was equivocal and we credit, as did
the Trial Examiner, the testimony of Penn and McLean.
It is undisputed that, as the' result of a particular warning against
"talking," Cole, one evening about the middle of January 1941, placed
some scotch tape over his mouth while employee John Kleppinger,-a
member of his gang, fastened a small sign reading, "I can't talk" on
Cole's back. Cole continued with his work but Divelbiss called the
attention of DeLauder to the tape and sign on Cole. DeLauder went
over to where Cole was working, pulled the tape off his mouth, removed
the sign from his back, and, according to Fox, "jumped him about it
and gave him the dickens." On January 16, 1941, DeLauder submitted
a written report to Revell to the effect that Cole had caused a "dis-
•turbance" in the plant by placing the tape "over his mouth and wearing
sign on his back."
Although no further incident occurred up to the time of his dis-
charge, on January 29 DeLauder reported that 'Cole "Resents super-
vision. -Can't seem to get along with others. • Interferes with work
.by flaring up and distracting other workmen. Appears to have un-
controllable nervous • condition." On February 26, DeLauder again
reported to Revell that Cole "Interferes with other workmen during
working hours by stopping their work to hear his discussions ..."
and that Cole suggested his own release on account of "bad health."
Cole denied ever discussing the question of his health with DeLauder.
Shortly before the date of the last mentioned report, Revell testi-
fied, he asked Plant Superintendent Slick for a "further check" on
Cole. Slick asked DeLauder to investigate and submit a report to
him. DeLauder did so on February 26. DeLauder reported that he
questioned Cole about remarks which Cole was supposed to have
made in the plant to the effect that "production [was] the curse of
this nation," that conditions in Germany and Russia were better than
those in this country, and that he was being driven by a "slave driver
& whip cracker." DeLauder did not state in his report whether Cole
admitted or denied making these statements, but stated that the latter
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him that he had received injuries during the first World War.
DeLauder concluded his report by stating , "Hope this gives you the
desired information if not maybe I can give you more details which
I have omitted ." On March 4, DeLauder again reported that Cole's
"temper spells" and talk were interfering with the work of the plant,
adding, "No further action since previous reprimands had no effect."
The evidence shows that, Cole occasionally became excited in the
plant. As Fox testified , lie would at times "kid" the men with whom
he was working, saying, "Come on , you slaves ." No credible evidence
was introduced to show that Cole made any of the other remarks at-
tributed to him in DeLauder 's reports , or that he was a disturbing
influence in the plant . DeLauder testified that he based his reports
regarding Cole on information given him by Divelbiss and Fox. Fox
denied supplying any information to DeLauder regarding Cole.
Divelbiss denied that DeLauder ever talked to him about Cole. We
find, as did the Trial Examiner , that neither Fox nor Divelbiss made
any reports to DeLauder concerning Cole.
Cole was discharged on March 7 , 1941, purportedly on account of
"work unsatisfactory, probably due to ill health." However, the con-
tention that Cole's work was unsatisfactory is not supported by the
evidence . Fox, Cole's leadman, testified that Cole was a good worker
and that he would be glad to have him back in his gang. DeLauder,
himself , admitted that Cole was a good worker until October or No-
vember 1940 . However, Cole received a 5-cent hourly pay increase
on November 11. DeLauder explained the increase as an effort "to
better satisfy 'him with conditions in the plant ." The respondent's
contention that Cole's alleged unsatisfactory work was "probably due
to ill health" is likewise unsupported by the evidence . Fox testified
that Cole 's health was - such that he could do his job satisfactorily.
Cole- testified that, in his conversations with DeLauder , the latter
never referred to Cole's "ill health." DeLauder insisted that Cole's
health was poor, but did not support his position with any proof as
to Cole's absence from work for such reason or as to any medical treat-
ment given to him. We find, as did the Trial Examiner , that the state
of Cole's health was not a factor in his discharge.
The credible evidence in the case, including our finding of the re-
spondent 's assistance to the Independent , shows that the respondent
discharged Cole not for the reasons advanced by it, but because of his
membership in and activities on behalf of the C. I. O. The criticism
which the respondent made of Cole and his work significantly dates
from the time when Cole joined the C. I.O., refused to join the Inde-
pendent, and strongly advocated the C. I. O. in conversations with
DeLauder and his fellow, workers. The respondent contends that at
FAIRCHILD ENGINE- AND AIRPLANE CORPORATION 533.
-this time, Cole's work, which had theretofore been good, became un-
satisfactory. In -addition, the respondent soon thereafter discovered,
through DeLauder, that Cole "resented supervision," that he did not
"seem to get along with others," and that he was "distracting other
workmen." The facts, as found hereinabove, belie the respondent's
assertions. The pay increase which Cole received in November was
part of an attempt to lead him away from the C. I. 0., or as DeLauder
put it, "to better satisfy him with conditions in the plant." When that
effort failed to diminish Cole's support and advocacy of the C. I. 0.,,
the respondent, through DeLauder, involved him in controversial
discussions and led and encouraged others physically to harass Cole.
At the same time, Cramer and DeLauder started to build a "case"
against him by a series of fabricated reports, which they submitted to
their superiors. From Cramer's own testimony it is apparent that
these reports were prepared in order to lay a foundation for Cole's
discharge.
We find, as did the Trial Examiner, that the respondent has dis-
criminated in-regard to the hire and tenure of employment of James B.
Cole, thereby discouraging membership in the C. I. 0. and interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
C. The discharge of Snyder
The amended complaint alleged that on or about November 15, 1941,
the respondent discharged, and thereafter refused to reinstate, Ervin
H. Snyder for the reason that he joined and assisted the I. A. M. and
engaged in concerted activities with other employees. The Trial
Examiner, after examining the evidence, found that Snyder was not
discharged because of his union activity and recommended that the
complaint as to him be dismissed. In a brief submitted by the I. A. M.,
it conceded that "the record appears to be inadequate to substantiate
the 8 (3) allegation with regard to this person [Snyder]." We have
carefully examined the entire record and agree with the conclusions
of the Trial Examiner as to Snyder. We shall dismiss the complaint
as to him.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, 'and
tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
534 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of-
the Act.
We have found that the respondent discriminatorily discharged and
thereafter failed to reinstate James B. Cole because of his membership
in and activities on behalf of- the C. I. 0. We shall therefore order
the respondent to offer him immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges. We shall also order the re-
spondent to make him whole for any loss of pay he has suffered by
reason of the respondent's discrimination, by payment to him of a,
sum of money equal to the amount which he normally would have
earned as wages from the date of his discharge to the date of the
offer of reinstatement, less his net earnings 5 during said period.
Inasmuch as we have found that the respondent assisted the Inde-
pendent and treated with hostility the C. I. 0. and the I. A. M., we
shall order the respondent to cease and desist from discouraging mem-
bership in both the C. 1. 0. and the I. A. M.
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAw
1. United Automobile, Aircraft and Agricultural Implement Work-
ers of America, C. I. 0., International Association of Machinists, and
Independent Aircraft Workers, Inc., are labor organizations, within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of James B. Cole, thereby discouraging membership in United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, C. I. 0., the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
8 By "net earnings" is meant earnings less expenses , such as for transportation , room, and
board, incurred by an employee in connection with obtaining work and working elsewhere
than for the respondent , which would not have been incurred but for his unlawful 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 22.790, 8 N L R B 440 Monies received for work per
formed upon Federal, State, county, municipal , or other work-relief protects shall be consid-
ered as earnings See Republic Steel Corporation v N L R H , 311 U. 8 7.
FAIRCHILD ENGINE AND AIRPLANE CORPORATION 535,
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
5. The respondent has not discriminated in regard to the hire and
tenure of employment of Ervin H. Snyder, within the meaning of
Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Fairchild Engine and Airplane Corporation, Hagerstown, Maryland,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Automobile, &ire-raft, and
Agricultural Implement Workers of America, C. I. 0., International
Association of Machinists, affiliated with the American Federation of
Labor, or any other labor organization of its employees, by granting
preferential treatment to the Independent, by discharging, refusing
to reinstate, or in any other way discriminating in regard to the hire
and tenure of employment or any term or condition of employment
of its employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or pro-
tection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offers to James B. Cole immediate and full reinstatement to
his former or substantially equivalent position without prejudice to
his seniority and other rights and privileges;
(b) Make whole James B. Cole for any loss of pay he may have
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to the amount he normally
would have earned as wages from the date of such discriminations to
the date of the offer of reinstatement, less his net earnings, during
said period ;
(c) Immediately post in conspicuous places throughout its Hagers-
town, Maryland, plants, and maintain for a period of at least sixty
(60), consecutive days from the date of,posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a)^ and (b)
536 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
hereof; (2) that the respondent will take the affirmative action set
forth in paragraphs 2 (a) and (b) hereof; and (3) that the respond-
ent's employees are free to become and remain members of United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, C. I. 0., International Association of Machinists, affiliated with
the American Federation of Labor, or any other labor organization,
of their choice, and that the respondent will not discriminate against
any employee because of his membership or activity in such organiza-
tions;
(d) Notify the Regional Director for the Fifth 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, insofar as it alleges
that the respondent has discriminated against Ervin H. Snyder, with-
in the meaning of Section 8 (3) of the Act, be, and it hereby is,
dismissed.