General Motors Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1946

67 N.L.R.B. 965 (N.L.R.B. 1946)

In the Matter of GENERAL MOTORS CORPORATION and UNITED ELECTRI-
CAL, RADIO & MACHINE WORKERS OF AMERICA, CIO
Case No. 14-C-1043.-Decided April 30, 1946
DECISION
AND
ORDER
On December 28, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a supporting brief. On April 18, 1946, the
Board heard oral argument at Washington, D. C., in which the re-
spondent participated. The Union requested leave to file a brief in
lieu of oral argument, but this request was subsequently withdrawn.
The Board has considered the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the respondent's exceptions, brief, and oral argu-
ment, and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, with the
exceptions noted below :
1. The Trial Examiner recommended that back pay be awarded to
the striking employees from March 17, 1945, presumably on the theory
that by removing the strikers from its pay-roll records on that day the
respondent rendered futile any unconditional request for reinstate-
ment by the strikers. The record, however, shows that the respond-
ent's conduct in this respect was not communicated to the strikers. It
therefore was not apparent to the strikers that a request for reinstate-
ment would be futile at that time. Under the circumstances, we shall
order that back pay be awarded to the strikers from March 20, 1945,
the day on which the respondent refused discriminatorily the uncon-
ditional request of the strikers to be reinstated to their jobs, which
were still available.
67 N. L. R. B, No. 119.
965
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Since the respondent 's plant ceased operations on August 14, 1945,
the Trial Examiner recommended that in lieu of posting compliance
notices in the plant, the respondent should mail copies of such notice
to all its employees who were on the pay roll from March 17 to August
14, 1945, at their last known addresses , and should also cause to be
published in a St. Louis daily newspaper of general circulation, the
text of such notice. Under all the circumstances of this case, we are
of the opinion that mailing copies of the notice to its former employ-
ees will be adequate to effectuate the policies of the Act . The Board
emphatically disagrees with the recommendation that any notice be
published in the local press.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent , General Motors Corpora-
tion, St. Louis, Missouri , and its officers , agents , successors, and
assigns shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization by dis-
criminatorily discharging or refusing to reinstate any of its employees,
or by discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization , to form
labor organizations , to join or assist any labor organization , including
the United Electrical , Radio & Machine Workers of America, CIO,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection as guaranteed in Section 7
of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to the employees listed in Appendix A, attached to the
Intermediate Report , immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their senior-
ity and other rights and privileges , when and if its operations are
resumed at the Chevrolet-Shell plant at St. Louis, Missouri ;
(b) Make whole the said employees for any loss of pay they may
have suffered by reason of the respondent 's discrimination against
them by payment to each of them a sum of money equal to the amount
which he normally would have earned as wages during the period from
March 20, 1945, to August 14, 1945, less his net earnings during said
period, and also in the event that the Chevrolet -Shell plant is reopened
GENERAL MOTORS CORPORATION 967
and operations are resumed which require the services of employees
possessing the same or equivalent qualifications, from the date of such
resumption of operations to the date of the respondent's offer of rein-
statement, less his net earnings during such period;
(c) Mail to all the employees who were on its pay roll from March
17 to August 14, 1945, at their last known addresses, copies of the
notice attached to the Intermediate Report marked "Appendix B".1
When and if the operations performed at the Chevrolet-Shell plant
are resumed at the same plant or elsewhere in St. Louis, copies of said
notice, to be furnished by the Regional Director for the Fourteenth
Region, shall, after being duly signed by the respondent's representa-
tive, be posted by the respondent, immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by, the
respondent to insure that said notices are not altered, defaced, or
covered by any other material;
(d) Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
RI Ryburn L Harkler, for the Board
lie Henry li Hogan, of Detroit, 'Mich, by Messrs. William S. 0ldani and
Tiairy S Benjamin, Jr, for the respondent
Jtr Wayne Stoner, of St Louis, Mo, for the Union
STATEMENT OF TIDE C vSE
Upon an amended charge filed November 8, 1945, by United Electrical, Radio &
Machine Workers of America, CIO, herein called the Union, the National Labor
Relations Board, herein called the Board, by its Regional Director for the Four-
teenth Region (St. Louis, Missouri), issued its complaint, dated November 8, 1945,
against General Motors Corporation, 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 S (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat 449, herein called the Act Copies
of the complaint and notice of hearing thereon were duly served upon the
respondent and the Union
With respect to the unfair labor practices the complaint alleges, in substance.
(1) that on March 17, 1945, the respondent discriminatorily discharged and there-
titter refused to reinstate the 29 employees listed on "Appendix A" attached hereto,
1 Said notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner " and substitut-
ing in lieu thereof the words "A Decision and Order "
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the reason that they engaged in concerted activities and went on strike, thereby
discouraging its employees from engaging in concerted activities; and (2) that by
these acts the respondent has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act
The respondent has filed no answer. In effect, through witnesses and by
statements of its counsel at the hearing, the respondent denied that it had engaged
in any unfair labor practices
Pursuant to notice, a hearing was held in St Louis, Missouri, on December 3
and 4, 1945, before the undersigned Trial Exanuner, duly designated by the Chief
Trial Examiner. The Board and the respondent were represented by counsel, and
the Union by a representative. All parties participated in the hearing and were
afforded full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing upon the issues. '
At the close of the Board's case, counsel for the respondent moved that the
complaint be dismissed upon the grounds that the Board had failed to adduce
evidence to sustain the allegations of the complaint The motion was denied.
At the close of the hearing, ruling was reserved upoii similar motions by counsel
for the respondent. These motions are disposed of by the findings and con-
clusions set forth hereinafter. Also at the close of the hearing a motion, made
by counsel for the Board without objection, was granted to conform the com-
plaint to the proof in minor particulars. After the taking of testimony counsel
for the respondent and for the Board participated in oral argument before the
Trial Examiner. Since the close of the hearing the Trial Examiner has received
a brief from counsel for the Board.'
Upon the entire record in this case, including the oral arguments and the
brief and from his observation of the witnesses, the Trial Examiner makes the
following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
General Motors Corporation is a Delaware corporation, with principal offices
in New York, New York, and Detroit, Michigan. It operates through several
incorporated divisions, one of which is known as the Chevrolet Motor Division.
Chevrolet Motor Division operates plants at various localities in the United
States. At the request of the United States Government, it operated a plant at
St. Louis, Missouri, known as the Chevrolet-Shell Division. This plant was in
operation for about a year until August 14, 1945. On or about that date, all
manufacturing activities at this plant terminated. The plant itself was wholly
owned by the United States Government.
During the operation of this plant, the only one here concerned, the respondent
manufactured munitions, more particularly shells for the United States Govern-
ment. More than fifty per cent in value of the raw materials used in the
production of the shells came to the plant from sources outside the State of
Missouri. Completed shells valued at more than one million dollars were
delivered by the respondent F. O. B. Chevrolet-Shell Plant, St. Louis, Missouri.
For the purpose of this proceeding, the respondent admits that it is engaged
in commerce within the meaning of the Act.2
'At the hearing all counsel were given 10 days within which to file briefs. At the
expiration of that time , the Trial Examiner granted an extension of time upon request of
counsel for the respondent to December 21. On the last mentioned date a request from
the same counsel for a further extension was denied.
2 The above findings are based upon a stipulation fo all parties made at the hearing.
GENERAL MOTORS CORPORATION
IL THE ORGANIZATIONS INVOLVED
969
United Electrical, Radio & Machine Workers of America, CIO, is a labor organi-
zation admitting to membership employees of the respondent.
III THE UNFAIR LABOR PRACTICES
A. Setting in which relevant events occurred
As noted above the respondent operated its Chevrolet shell plant at St. Louis
for about a year. All production at the plant ceased on or about V-J Day,
August 14, 1945.
Former employees in only one department of the plant are involved in the issues
of this proceeding. This department, called the forge shop, was one in which
sl eel billets were forged into shells. Forge shop employees worked in three
8-hour shifts, and as operations expanded, a steadily increasing number of em-
ployees were hired in this department until V-J Day.
In mid-March, 1945, from 50 to 60 employees worked on each of the forge shop
shifts. At that time John Hurley, who for many years had been a General
Motors employee, was serving as superintendent of the department, in charge
of all three shifts.
Early in March the Union began organizing employees at the plant. No evi-
dence was introduced at the hearing tending to show that the respondent inter-
fered in any way, before March 17, with organizational activities of this or any
other labor organization at the plant That management was aware of such
efforts is reasonably established, however, by the testimony of Personnel Director
T. E Melson, who stated that about ten days before March 17 he attended, at the
Beard's Regional Office, a conference relating to representation petitions filed
by several unions, including the labor organization involved in this proceeding.'
B. Events at issue
1. Summary of the issues
It is undisputed that on March 17, 1945, the employment of the 29 workers
named in the complaint was terminated following a controversy which arose
shortly before that date concerning the hourly rate to be paid to forge shop em-
ployees of 90 days' service. It is also undisputed that at about 9 o'clock on the
morning of March 17 these 29 employees and others of the first shift concertedly
stopped work and thereafter, during the same morning, were interviewed by
Superintendent Hurley. It is further undisputed that the 29 named employees
were removed from the respondent's pay-roll immediately after their interview
with Hurley and were later refused reemployment, although for many weeks new
employees were being hired continuously.
The Board contends that the 29 employees engaged in a strike and (1) were
discharged or (2) were refused reinstatement when they made an unconditional
offer to return to work, and that they were thus deprived of employment dis-
criminatorily because they had engaged in concerted activities, thereby discour-
aging membership in a labor organization.
The respondent contends: (1) that these employees voluntarily quit: or (2)
that they were properly discharged and denied reemployment for a number of
reasons, including the allegations that (a) the 29 employees, as a "minority"
group, tried to "force recognition as collective bargaining agents" ; (b) their
s At the meeting the respondent offered to stipulate to a consent election. Sometime
after March 17 an election was held. ( Cases Nos 14-R-1149, 1150 , 1163 and 1184 )
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
actions constituted a "breach of contract"; and (c) the strike was "illegal" in
that the employees left their work but not the premises.
2. The dispute concerning wages
When being hired for work in the forge shop new employees were informed
by members of the personnel staff as to wages they would receive . Whatever
such new employees were told by interviewers , a point of dispute, they actually
started as trainees at an hourly rate of 75 cents and gradually received in-
creases up to $1 09. By March 17 a few utility or relief men, who had become
experienced and were serving in the capacity generally known as that of lead
men, were being paid $1.14 per hour. According to the pay -roll data in evidence,
none of the forge shop employees involved in this case was receiving more than
the last mentioned hourly rate.
Shortly before March 17 a dispute arose between some of the forge shop em-
ployees and management as to the top wage which they were to receive when
they had worked 90 days. By that date at least three employees had completed
90 days' service; Fred Gore` having been employed on December 16, L. P.
Jordan on December 12, and E. C. Morris on December 13, 1944.
Credible evidence establishes and the Trial Examiner finds that by the morn-
ing of March 17 a number of the employees were of the reasonably founded
belief that management had withdrawn its promise to pay them an hourly rate
of $1.24 after completing 90 days of service. ' About a week before March 17,
according to the testimony of both the following individuals , Hurley told Per-
sonnel Director Melson that forge shop employees were complaining that they
had been promised this amount. Although , according to Melson 's testimony,
he promptly checked with interviewers and was told , in effect, that no promise
of this amount had been made , there is no evidence that any immediate effort
was made by him or any other management representative to disclaim respon-
sibility for a condition which he knew existed or to inform the employees con-
cerned that a top rate of $124 had not been promised and would not be paid.
On March 15 Fred Gore , a utility man employed on December 16, 1944 , completed
his 90 days ' service . He went to Hurley and asked if he was going to
receive the $1.24 rate. After talking with Hurley, Gore told employee Archie
Blaine , another utility roan, that the superintendent had declared that so far
as he knew there was no such rate . This information was passed on to other
men in the department.' -
4 An unchallenged statement by counsel for the respondent at the hearing that Gore's
90 days did not expire until March 17 was apparently based upon an inaccurate calcula-
tion or upon information not offered in evidence . According to pay -roll data introduced
by the respondent Gore began work on December 16. Thus his service record would
actually total 16 days in December , 31 days in January , 28 days in February, and on
March 15 he served his ninetieth day. Even if figured on the basis of 30 days for each
month, the result would be the same
5 The testimony of employee Archie Blaine is not directly denied that he was told by
a personnel interviewer when being hired that he would receive this amount at the end
of the ninety-day period. No personnel interviewer was called as a witness . Nor did
Superintendent Hurley, a witness , deny having told Blaine and three other relief men,
about February 24, that wage rate "tops " in the department was $1 .24, and that he hoped
to get more for the employees as soon as the department was in full production.
'The Trial Examiner makes no finding as to what Hurley actually told Gore on this
occasion , but only as to Gore ' s report to Blaine , which was passed on to others. Gore
was not a witness As to this interview Hurley 's testimony , when questioned by counsel
tor the Board during the first day of the hearing , is inconsistent with that given by him
the following day, when called as a witness for the respondent . On the first occasion he
testified to the effect that he told Gore on March 15 that he knew of no such arrange-
ment , but promised to find out for him and sent him back to work. He also testified that
GENERAL MOTORS CORPORATION 971
3. The strike of March 17 and events immediately following
At the beginning of the first shift on the morning of Saturday, MMarch 17, all
forge shop employees gathered near the time clock. They agreed and declared
chat they would not go to work until they found out whether $1 24 was to be
paid When Hurley came into the department a short time after the shift
began, he sent for Gore After talking with the superintendent, Gore reported
to the men that they were to go to work and that Hurley would let them know
about the rate at 9 o'clock. All employ ees went to work, as Gore instructed,
rnd they continued until 9 o'clock At that hour Huiley did not reappear, and
all employees in the department stopped work. After a time Hurley returned,
and summoned to his office the lead men, including Gore and Blaine. He told
them to order the men back to work The lead men followed Hurley's instruc-
tions. but the men refused to go to work until they found out about the wage
sate Thereupon Foreman Mills sent the entire shift to Hurley's office, and in
ironr of it they congregated.'
One by one, the employees were then called into Hurley's office. In substance
Hurley asked each of the 40 or 45 employees,' interviewed separately, why he
was in there When they stated that they wanted a definite understanding
>ibout the $124 rate, Hurley refused to make any commitment, but insisted that
they go back to work. From those who declined to work until receiving such
definite information, the superintendent demanded their employee identification
badge and sent them from the plant with "pass out" slips. Upon the first five
or six of these passes he wrote "Hone-Strike", and upon the remainder of the
29 passes issued by him that morning he wrote "Quit."'
be had no other contact with any employee thereafter, on the wage question, until March
17 However, called the next day as a witness for the respondent, Hurley testified that
on March 16 Gore had come to him, had stated that he would finish his 90 days' service
the next day , and bad asked if he was going to get $1 24 . Upon Gore ' s informing him
that the rate had been promised him by someone in the employment office the superin-
tendeni , according to his testimony , took the employee to the personnel office where the
identified interviewer denied having made any such promise Doubt as to the accuracy
of the superintendent 's second version is cast by the recorded fact that Gore's 90
dais' service expired on March 15, not March 17 Furthermore, Hurley's testimony, (1)
that Gore was "satisfied " upon leaving the personnel office, and (2) that he agreed that
lie must have confused $1 04 with $ 1 24, lacks inherent probability , since as to (1) the
nett morning Gore led a strike of employees in protest against management 's failure to
provide an understanding as to the $1 24 rate, and as to ( 2) at the time of the alleged
interview with the personnel interviewer Gore was already receiving :61.14.
4 The findings as to these incidents are based upon the straight-forward and credible
testimony of Blaine , which does not differ in major details from that of Hurley The
Trial Examiner can place no reliance upon Hurley 's testimony as to these events where
it is inconsistent with that of Blaine Hurley testified that he was "confused" on the
morning of March 17 , and it is reasonable to believe that his recollection as a witness was
likewise uncertain Mills was not a witness
8 Apparently some of the 50 or more employees on that shift did not wait to be called
lain the office , but went back to work during the period when the 29 employees were being
sent out of the plant, as described hereinafter.
The findings as to these interviews rest upon the credible and consistent testimony of
4 of the 29 employees named in the complaint . These four were the only employee wit-
ne,snes called by the Board to testify as to the interviews of March 17. It is reasonable
to rifer that all such interviews were similar in substance. G. L. Williams, one of the
i inploi ees receiving a "Home-Strike " slip, testified as follows :
. I went in and he said "Well, what are you in here for?" I said "Well, I am in
here with the rest of the boys. They are in here to see about this $1 24 " I said
"Soiree of them say they have been here a period of 90 days and they ain ' t got the
$1 24, and they say they wasn't going to get any more than $1 .09 top wages. When I
coupe here they told me in the employment office that I would get $1 24 top price" . . .
He say, "Well, I want you to go back there and go to work." I say, "Well, I want
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to the testimony of Personnel Director Melson, the respondent
removed all 29 employees , named in the complaint , from the company pay-roll on
the same day , March 17, and "clearance slips" for them were processed that
morning.
4. Ma7iagemen,t's refusal to reinstate the 29 employees
Upon being ushered from the plant the 29 employees and other employees of the
forge shop , on the second and third shifts, gathered in front of one of the gates.
One of the Union's field organizers , Wayne Stoner , approached them and when
told that the forge shop employees were on strike urged them to come to a union
local hall nearby. William Sentner , a union general vice-president , was sum-
moned to the meeting. Sentner urged them to go back to work. All of the
employees there gathered signed applications for union membership , and selected
a committee of six, some from each of the three shifts, to negotiate their return
to work . Being late in the day , the employees adjourned until Monday morning.
An undetermined number of employees did not report for work on the second
and third shifts, either on Saturday or on the following Monday
work, but I am with the other boys . If they can't get their $1 . 24, can ' t get an
understanding about that $ 1.24, and I can 't get an understanding about my $1.24,
about whether I get it or not, I am with the other boys. Whatever they do is what
1 am doing " . . He said "I am trying to do the best for you and I want you to go
out and go to work". I said, "Well , I am still waiting to find out about the $124
with the rest of the boys. If they go back to work under $1.24 without an under-
standing , I will , too,' So he writ me out a pass . I started away from his desk and
he said "Here, give me our badge ," so I handed him niy badge . . . . It [the pass]
showed "Home Strike."
Lester Joi don testified
When I walked into the office, Mr. Hurley asked me why I was in there I told him
there nos a dispute on wages, and I wanted a definite understanding about whether
or not we was supposed to receive $1.24 Mr. Hurley asked me would I want to work.
I told him I would He said "Will you go on out and go to work ?" I told him I
would if I found out whether we would get the $1 24, but not until then . He then
asked we for my badge and wrote out a slip saying "Quit."
A. L. Willis testified :
I was the fourth man that went into Mr. Hurley's office. Upon entering the office,
getting to his desk, he asked what did I come in for . I told him I came in, that I
wanted some understanding about the $ 1 24 which was promised when I accepted
the job from Mr. McDonald of the Personnel Office. He told me "I am not talking
about the $ 1 24 What I want to know is if you want to work" . . . So he said. " Well,
do you want to go back to work ? That is what I am asking you, or do you want the
pass out?" I said "I do not want to quit ; if I get an understanding about the
$1.24 I was promised when I was hired , I will go back to work." He said "Well, if
you are not going back" . . . he wrote me a pass and asked me for the badge
Willis' pass out read "Home-Strike " Blaine's testimony was to the same effect. He
received a pass with "Quit" written upon it. When receiving this slip, according to his
testimony , he asked Hurley if he was fired He further testified :
He said "No , you are not fired , you are laid off temporarily until we see about the
wage rate and you will he called back "
Blaine was kept in the office until Hurley had finished interviewing five or six more
employees in the same vein and then a plant protection guard ushered them from the
plant. Hurley did not specifically deny the testimony of Williams , Jordan or Willis He
denied having told Blaine that he was temporarily laid of , but as noted heretofore he
also admitted as a witness that he was "confused " on the morning of March 17 . Hurley's
version of his interviews contain many inconsistencies At one point he claimed that
most of the employees interviewed "did not know what it was all about ;" at another point
he testified that he was aware, at the time, that they knew a wage controversy was in-
volved . Hurley also claimed that at no time that morning did he think there was a
"strike", and yet he admitted that he wrote " strike" upon several of the pass-out slips
issued by him
GENERAL MOTORS CORPORATION 973
The plant was closed on Sunday At about 6:30 Monday morning, March 19,
40 or 50 of the employees again met at the union hall. The committee went to
a plant gate Gore, one of the committee members, sent in word by a plant
guard that they wanted to see Melson about returning to work. After a long
delay, the guard reported to them that Melson had nothing to talk to them about,
and the committee returned to the union hall. Sentner thereupon telephoned to
Melson . The personnel director told him, in effect, that the 29 employees on the
first shift had quit their employment the previous Saturday and would not be
reinstated, but that those of the second and third shifts could return. In a let-
ter of the same date, received by Melson the next day, Sentner confirmed his
understanding of the telephone conversation, and offered the Union's services,
on behalf of its members in the forge shop, in an effort to settle the matters
giving rise to the dispute and to get the men back to work. Both in his tele-
phone conversation and in the letter Sentner informed Melson that the 29 men
(lid not consider that they had quit, but that they had been sent home, and he
cited the notation appearing on some of the "pass out" slips in support of the
reasonableness of their contention However, Melson did not reply to the letter,
and according to his own testimony told Sentner in the telephone conversation
that the 29 men had been removed from the company pay-roll. Also according
to Melson's testimony, he informed Sentner
We considered them as undesirable employees, persons not stable on the
job, and it wasn't our policy for a man to be allowed to leave employment
one day and hire him back the next day.
At 8 o'clock Tuesday morning, Sentner informed Melson by telephone that all
union members , which included the 29 employees herein involved, were being
instructed to return to work without any reservation as to negotiating the
question of the wage dispute. And by letter, received by Melson on Wednesday,
Sentner confirmed his message. Melson did not reply to this letter Also on
Tuesday organizer Wayne Stoner made three attempts by telephone to gain
permission from Melson for the unconditional return of the employees to work.
On the first occasion Melson declined to discuss the request, on the grounds that
no bargaining relationship existed between the respondent and the Union On
the second occasion Melson evaded a direct commitment as to the request but
said that if the 29 men were allowed to work they, must come back as new
employees, and -suggested a third call In the final conversation with Stoner that
day Melson definitely refused to permit the 29 employees to resume work Fur-
thermore, on the same day an undetermined number of the 29 employees appeared
at the plant gates, seeking to resume work, but were denied entry by the guard.
Although on Tuesday and Wednesday, March 20 and 21, employees of the second
and third shifts were allowed to resume their employment, all 29 employees
named in the complaint were refused reinstatement on those 2 days and there-
a f ter.'0
C Conclusions as to the issues
The Trial Examiner (oucludes and finds that the 29 employees named in the
complaint did not quit their employment on March 17, but that they engaged in
an economic strike Credible evidence as to the conduct of both the employees
and of Hurley that day permits no other reasonable conclusion as to the nature
of the employees' intent and action The employees left their work and demanded
an understanding about a wage dispute which both Hurley and Melson were
") The testimony of several witnesses , both for the Board and for the respondent, is in
general agreement as to the events following Hurley's interviews with forge shop em-
ployeee on Saturday.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
aware had existed for several days. Hurley refused to provide that understand-
ing, but in his interviews gave all the employees the choice either of going back
to work at once or of leaving the plant. Twenty-nine of the number interviewed
chose to pursue their efforts to obtain a wage understanding by not returning to
work and by going outside the gate, where they were joined by fellow-workers of
the second and third shifts The subsequent conduct of the men in forming a
committee to negotiate terms under which they might return to work, and their
later concerted effort, through the Union which they had designated as their
representative, to return to work unconditionally and without negotiation of the
dispute, were plainly actions of employees engaging in an economic strike.
Hurley's own testimony establishes that he knew all of the 29 men whom he
interviewed on Saturday morning were there because of the wage dispute, and
that he knew they had previously stopped woi k the same morning for the same
reason That he, himself, considered the employees who would not immediately
abandon the work stoppage to be striking, and not quitting, is made clear by the
fact that he wrote "Strike" upon the first five or six "pass out" slips issued to
them "
It is further concluded and found that the respondent effectively discharged
the 29 employees on March 17, and that it thereafter at all times refused to rein-
state them. The testimony of Melson, quoted above, establishes beyond question
that the respondent removed these employees from the pay-roll on that date and
decided that it would not, under any circumstances, reinstate or reemploy them.
In the light of the respondent's acts of formally terminating the 29 employees'
employment and of thereafter refusing to permit them to return to work, when
they attempted to do so without reservation, it may not reasonably be claimed
that the respondent was engaging in a "tactical maneuver," designed to induce
strikers to abandon the strike and to resume work.32
The respondent decided on March 17 not to reemploy the 29 workers under
any circumstances It refused their unconditional request for reemployment on
March 20, and at all times thereafter.
In the oral argument and in his brief, counsel for the respondent contends:
(1) that the 29 employees quit voluntarily on the morning of March 17; and (2)
that "if the Board rules this was an economic strike," the respondent should not
be required to reemploy the 29 workers because (a) they violated an "implied"
contract of employment; (b) because they endeavored to force the respondent
to bargain with a minority group when no bargaining agent had been certified;
and (c) the strikers did not leave the premises when they stopped work at nine
o'clock on March 17. Contention (1) has been disposed of above. As to conten-
tion 2 (a), no evidence of the existence of actual, individual contracts betwebn
the employer and the employee was offered Counsel apparently relies upon his
statement at the hearing :
Any time an employee is hired by the company a contract results. He asks
us for a job, and we offer the job at certain rates. Let us say it is an implied
contract.
The contention is without merit. To hold otherwise would be to stamp all
strikes as illegal. Contention 2 (b) is likewise without merit. In their con-
certed activities the employees sought only: (1) to obtain an understanding
concerning a wage dispute, and (2) to return to work. The Union served simply
13 Although repeatedly questioned, Hurley testified that he could not explain, other
than to state that he was "confused", why he made notations of "strike" on the first few
slips and thereafter wrote "quit".
12 See Majestic Manufacturing Company, 64 N. L . It. B 950.
GENERAL MOTORS CORPORATION 975
as an intermediary for the employees in the latter attempt Both through the
Union and directly the respondent refused to reemploy the workers. Finally,
contention 2 (c) is without merit There is no evidence that any employee refused
to leave the premises when instructed to do so They conducted themselves
reasonably when they stopped work at 9 o'clock Saturday morning, by waiting on
the premises for information which they were informed that Hurley was to obtain
for them
In summary, it is concluded and found that the respondent discriminatorily
discharged the 29 employees named in the complaint on March 17, 1945, and
thereafter refused to reinstate them, because they went on strike and engaged
in concerted activities. An employer may not thus punish his employees merely
because they have gone on strike.13
It is expressly concluded and found that by discriminatorily discharging and
refusing to reinstate the 29 employees named in the complaint the respondent
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, including the right to engage in concerted
activities, for the purpose of collective bargaining or other mutual aid or
protection.
It is also expressly concluded and found that by discriminatorily discharging
and refusing to reinstate the 29 employees named in the complaint the respondent
discouraged membership in labor organizations."
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth lit Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since the undersigned has found that the respondent has engaged in unfair
labor practices, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent discriminated as to the hire and tenure
of employment of the 29 employees named in Appendix A, attached hereto, on
March 17, 1945. It has also been found that the respondent ceased its operation of
its ^St Louis shell plant on August 14, 1945 Whether the discharge of the 29 em-
ployees be deemed a violation of Section 8 (1) or 8 (3) of the Act, it is necessary
in order to effectuate the policies of the Act, and it will be recommended that,
13 N L. R. B. v Mackay Radio A Telegraph Co., 304 U. S 333 , 344-347 ; Wilson ii Co V
N. L. R B ., 124 F . ( 2d) 845 , 847-848 (C C. A. 7)
14 In N. L. R B . V. Tovrea Packing Company, 111 F ( 2d) 626 , 629 (C C . A 9), enforc-
ing as mod 12 N. L. R . B. 1063 , cert denied 311 U S 685 , the Court sustained the Board's
position that action of a group of unorganized employees in submitting a concerted wage
demand to their employer in itself constituted them a "labor organization" within the
meaning of the Act, and that the discharge of an employee for voicing that demand was in
violation of Section 8 (3) and Section 8 (1) of the Act . It follows that by punishing
employees who engaged in concerted action , management discouraged its employees from
continuing to act in concert through any labor organization , as defined by Section 2 (5)
of the Act. The term "labor organization" is there defined as "any organization of any
kind . 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."
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when and if the respondent shall resume such operations at St. Louis, it offer
immediate reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges, to the em-
ployees named in Appendix A. It will also be recommended that the respondent
make each of said employees whole for any loss of pay he has 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 March
17, 1945, to August 14, 1945, and, in the event the plant is reopened and operations
are resumed which require the services of employees possessing the same or
equivalent qualifications, from the date of such resumption of operations to the
date of offer of reinstatement, less his net earnings during these periods 1°
The recommendation that the respondent cease and desist from certain unfair
labor practices is also predicated upon the finding that the respondent's course
of conduct in discharging the 29 employees discloses a purpose to defeat self-
organization and its objects among the employees. As the Circuit Couit of
Appeals for the Fourth Circuit has stated, the "discriminatory discharge of an
employee . . . goes to the very heart of the Act " 16 Because of the respondent's
unlawful conduct and its underlying purpose, the undersigned is convinced that
the unfair labor practices found are persuasively related to the other unfair
labor practices proscribed, and that danger of their commission in the future is
to be anticipated from the respondent's conduct in the past." The preventive
purpose of the Act will be thwarted unless the recommended order is coextensive
with the threat. In order, therefore, to make more effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor practices, and
thereby to minimize industrial strife which burdens and obstructs commerce, and
thus effectuate the policies of the Act, it will be recommended that the re-
spondent cease and desist from in any manner infringing upon the rights guar-
anteed in Section 7 of the Act.
For the reason that the respondent's shell plant at St. Louis is now not in
operation, the usual recommendation that certain compliance notices be posted
in conspicuous places throughout the plant will not suffice to effectuate the
policies of the Act It will therefore be recommended ; (1) that the respondent
shall cause to be published, in a St. Louis daily newspaper of general circulation,
the text of the notice attached hereto, marked "Appendix B"; the size and
format of such publication to be in accordance with the requirement for legal
notices under the laws of the State of Missouri; and (2) that the respondent
shall cause copies of said notice to be mailed to all employees, at their last
known addresses, who were on the respondent's pay-roll from March 17, 1945.
to August 14, 1945.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the Trial Examiner makes the following:
is 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 unlawful
discharge , and the subsequent necessity of seeking employment' elsewhere . See Matter
of Crossett Lumber Company, 8 N. L R, B 440. Monies received for work performed
upon Federal, State, county, municipal, or other work-relief projects shall be considered
as earnings See Republic Steel Corporation v N L. R B. , 311 U S. 7.
'O N, L. R . B v Entwhistle Manufacturing Company , 120 F ( 2d) 532 , 536 (C C A 4) ;
see also N. L. R. B. v. Automotive Maintenance Machinery Company , 116 F ( 2d) 350, 353
(C. C. A. 7), where the Circuit Court of Appeals for the Seventh Circuit observed "No
more effective form of intimidation nor one more violative of the N L R Act can be con-
ceived than discharge of an employee because he joined a union . . .
irN. L. R B v Express Publishing Company, 312 U S 426.
GENERAL MOTORS CORPORATION
CONCLUSIONS OF LAW
977
1. United Electrical, Radio & Machine Workers of America, C. I. 0., is a
labor organization within the meaning of Section 2 (5) of the Act.
2. The forge shop employees who acted concertedly on March 17, in the manner
and for the purposes described herein, were a labor organization within the
meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of the
employees listed in Appendix A, attached hereto, thereby discouraging member-
ship in labor organizations, including the United Electrical, Radio & Machine
Workers of America, 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.
4. By discriminating in regard to the hire and tenure of employment of the
said employees, thereby discouraging membership in a labor organization, and
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.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the Trial
Examiner recommends that the respondent, General Motors Corporation, its
officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization by discriminatorily
discharging or refusing to reinstate any of its employees, or in any other man-
ner discriminating in regard to their hire or tenure of employment or any
term or condition of their employment ;
(b) In any other manner interfering with,- restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist any labor organizations, including the United Electrical,
Radio & Machine Workers of America, C I. 0, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Offer to the employees listed in Appendix A, attached hereto, immediate
and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges, when and if
its operations are resumed, as herein described, at St Louis, Missouri ;
(b) Make whole the said employees for any loss of pay they may have suffered
by reason of the respondent's discrimination against-them by payment to each
of them Of a sum of money equal to that which he normally would have earned
as wages but for the respondent's discrimination against him, in the manner
set forth in the Section entitled "The remedy" ;
(c) Cause to be published and to be mailed, in the manner set forth in the
Section entitled "The remedy," copies of the notice attached hereto, marked
"Appendix B". When and if operations are resumed at the same plant or else-
where in St. Louis, copies of said notice, to be furnished by the Regional Director
of the Fourteenth Region, shall, after being duly signed by the respondent's rep-
692145--46-vol. 67-63
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentative, be posted by the respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said notices are
not altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Fourteenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Di-
rector, in writing, that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations file with the Board,
Rochambeau Building, Washington 25, D. C, an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of. exceptions and/or brief, the party or counsel for the Board
filing the same shall serve a copy thereof upon each of the other parties and
shall file a copy with the Regional Director As further provided in said Sec-
tion 33, should any party desire permission to argue orally before the Board,
request therefor must me made in writing within ten (10) days from the date
of the order transferring the case to the Board
C. W. WHITTEMORE,
Trial Examiner.
Dated December 28, 1945.
APPENDIX A
William Bailey Will Hodges Lige Peeler
Archie Blaine Lee Houston James Perkins
Lawrence Carroll Harrison Humphrey Roscoe Jefferson, Jr.
Frank Chapman Richard Jones Harold Smith
Robert Dotson Jurmon Jordan Oliver Smith
Sylvester Ester Lester Jordan Earnest Sykes
Gennis Graham Dale Kennel Earl Williams
Paul Grimes Willie Minnis Arthur Willis
Fred Gore Eugene R. Moore Garlin Williams
James Hairston E. C. Morris
APPENDIX B
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist United Electrical Radio & Machine Workers of America,
GENERAL MOTORS CORPORATION 979
CIO, or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, when and
if the Chevrolet-Shell Plant is reopened . We will make them whole for any
loss of pay suffered as a result of the discrimination.
William Bailey Will Hodges Lige Peeler
Archie Blaine Lee Houston James Perkins
Lawrence Carroll Harrison Humphrey Roscoe Jefferson, Jr.-
Frank Chapman Richard Jones Harold Smith
Robert Dotson Jurmon Jordan Oliver Smith
Sylvester Ester Lester Jordan Earnest Sykes
Gennis Graham Dale Kennel Earl Williams
Paul Grimes Willie Minnis Arthur Willis
Fred Gore Eugene R. Moore Garlin Williams
James Hairston E. C. Morris
All our employees are free to become or remain members of the above-named
union or any other labor organization . We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
GENERAL MOTORS CORPORATION
Dated ------------------------ By -----------------------------=------
(Representative ) ( Title)
NoTE.-Any of the above -named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application,
in accordance with the Selective Service Act after discharge from the Armed
Forces.