General Motors Sales Corp.

National Labor Relations Board - Board DecisionsAug 26, 1941

34 N.L.R.B. 1052 (N.L.R.B. 1941)

In the Matter of GENERAL MOTORS SALES CORPORATION (GENERAL MOTORS PARTS DIVISION) and INTERNATIONAL UNION, UNITED AUTO- MOBILE WORKERS OF AMERICA, LOCAL 216, C. I. O. Case No. C-1759.-Decided August 26, 1941 Jurisdiction : automobile parts distributing industry. Unfair Labor Practices Discrimination: discharge, charges of, sustained as to one employee; charges that five employees discriminated against as to promotions, demotions, and working assignments and by deprivation of opportunity for advancement, dismissed. Employer's requirement that supervisory employees relinquish either super- visory status or union membership, held, under circumstances, not to con- stitute discrimination. Remedial Orders: reinstatement and back pay awarded. Mr. William R. Walsh, for the Board. Mr. Denton Jolly, of Detroit, Mich., Messrs. Flint and MacKay and Mr. Wesley L. Nutton, Jr., of Los Angeles, Calif., for the respondent. Messrs. Gallagher, Wirin, and Johnson, by Mr. William M. Samiuels, of Los Angeles, Calif., and Mr. L. H. Michener, of Los Angeles, Calif., for the Union. Miss Marcia Hertzmark, of counsel to the Board. DECISION AND ORDER STATEMENT OF'J HE CASE Upon charges and amended charges duly filed by International Union, United Automobile Workers of America, Local 216, C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint, dated Au- gust 9, 1940, against General Motors Sales Corporation (General Motors Parts Division), Los Angeles, California, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of 34 N. L. R. B., No. 115. 1052 GENERAL MOTORS SALES CORPORATION 1053 the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the Union and the respondent. Concerning the unfair labor practices, the complaint alleged, in substance, that the respondent, on or about September 1, 1939, dis- charged Harry L. Evans, and thereafter refused to reinstate him, because of his activity on behalf of and leadership in the Union. On August 19, 1940, the respondent filed its answer to the complaint, denying that it had discriminatorily discharged or refused to rein- state Evans and averring that Evans had been discharged to make room for the return to its warehouse of an employee with a much longer period of service, the respondent's business at that time having been inadequate to justify the retention of Evans and the old em- ployee, and Evans having been chosen for displacement because of his inefficiency. The respondent further averred- that, at the time of Evans' discharge, it did not have knowledge of Evans' membership in the Union, or of any organizational activities among its Los Angeles warehouse employees. On August 20, 1940, the Regional Director issued and duly served upon the parties an order postponing the date of hearing. On Sep- tember 17, 1940, the Regional Director issued and duly served upon the parties an "Amendment to Complaint" based upon a second amended charge filed by the Union on September 16, 1940. The complaint, as thus amended, further alleged that the respondent at its Los Angeles warehouse had "continually and repeatedly since some time in the month of September 1939, discriminated in the terms and conditions of its employment of those persons who were most active on behalf of the Union and particularly John C. Almquist, Marvin Franke, Charles Chase, Andrew Hyduke, and Henry Fontes, by discriminating against them and each of them in promotions, demotions, and working assignments and in other ways and by deny- ing to them and to each of them opportunity for further advance- ment," and that the respondent, in violation of Section 8 (5) of the Act, had refused, since some time in July 1940, to bargain with the Union after the Union had been certified by the Board on or about July 9, 1940, as the duly designated representative of the respondent's employees in an appropriate unit. On September 30, 1940, the' re- spondent filed its answer to the amendment to the complaint, denying that it had committed'the unfair labor practices alleged therein. Pursuant to notice, a hearing was held at Los Angeles, California, from September 30 to October 10, 1940, before Earl S. Bellman, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Union were represented by coun- 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sel. During the first part of the hearing, the Union was also repre- sented by one of its Regional Directors. All parties participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. Early in the hearing, the Union requested permission to withdraw that portion of its second amended charge which alleged that the respondent had refused to bargain, and coun- sel for the Board moved to dismiss those portions of the amendment to the complaint which alleged, in substance, that the respondent had violated Section 8 (5) of the Act by refusing to bargain with the Union. The motion of counsel for the Board was granted without objection, and the Union was directed to notify the Regional Director of its withdrawal of the charge. During the course of the hearing, the Trial Examiner made various rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On December 12, 1940, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties, finding that the'respondent had not engaged in, the unfair labor practices alleged in the complaint. He recommended that the complaint be dismissed. Thereafter the Union filed exceptions to the Intermediate Report and a brief in support thereof. The Board has considered the excep- tions and brief of the Union and, in so far as the exceptions are incon- sistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT General Motors Sales Corporation is a Delaware corporation with offices and places of business in 39 States. It functions through sev- eral unincorporated divisions, one of which, General Motors Parts Division, operates a warehouse in Los Angeles, with which this proceeding is concerned. The respondent distributes annually from its Los Angeles ware- house parts and accessories, valued in excess of $500,000, to dealers and distributors engaged in selling and repairing motor vehicles. Approximately 95 per cent of such parts and accessories are obtained from sources located outside the State of California, and about 10 per cent are distributed to dealers and distributors located outside the State of California. GENERAL MOTORS - SALES CORPORATION 1055 II. THE ORGANIZATION INVOLVED International Union, United Automobile Workers of America, Local 216, is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees at the Los Angeles warehouse of the respondent. III. THE UNFAIR LABOR PRACTICES A. The discharge of Harry L. Evans For various periods of time prior to March 27, 1939, Evans worked as a temporary laborer at the respondent's Los Angeles warehouse and at other units of the respondent. On March 27, 1939, he was transferred from a temporary position at the Los Angeles warehouse to the permanent pay roll and his rate was automatically raised to 70 cents an hour. On August 28, 1939, Evans' pay was again auto- matically advanced to 75 cents an hour, upon the completion. of 6 months' continuous service. About the middle of August 1939 Evans discussed with John C. Almquist, a picker, the advisability of organizing a union among the respondent's employees to secure better wages and working con- ditions and, shortly thereafter, Evans'set out to organize the ware- house employees. He asked several employees to prepare lists of prospective union members and received such lists from Almquist, and from employees Franke, Chase, and Anderson. It is undisputed that Evans also told Jack Lucas, a shortage clerk, of his plan to organize the warehouse. Evans testified that on August 31 Lucas informed Evans that he had just had lunch with George Ayres, a stock-department foreman ; that Lucas told him that Ayres knew of the union activities at the plant; and that Evans replied'that it "was very decent" of Lucas to tell Evans of Ayres' knowledge since Lucas "had voiced himself as not being receptive to the Union." Andrew Hyduke, then utility stockroom supervisor, testified that on the fol- lowing morning Lucas told him that he had informed Lee, parts stock-department manager, as well as Ayres, about the Union. Hy- duke was asked at.the hearing whether Lucas mentioned the names of any of the men active in the Union. Hyduke replied, "Well, yes, he mentioned that Harry (Evans) was the head of it." We interpret this testimony to mean, and we find, that Lucas reported Evans' union leadership to Ayres. During the same morning Ayres asked Ander- son, an elevator operator, according to Anderson's testimony, whether he had been approached concerning the Union and Anderson replied that he had not, but that he knew that an attempt to organize was being made. Further, according to Anderson's testimony, Ayres stated that he "didn't see why they would want to join a union at this 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time." Anderson and Evans both testified that Anderson immedi- ately told Evans that Ayres had questioned him concerning the Union. Ayres testified that his conversation with Anderson occurred on about September 7 and that he had merely asked Anderson whether the union which had existed in the plant several years before had been an affiliate of the C. I. O. The Trial Examiner credited Ayres' version of what occurred. We do not agree with his finding. An- derson's testimony is more credible in view of the fact that we believe this statement that he told Evans of Ayres' questioning on Septem- ber 1: Since Evans was discharged on that day and was not in the warehouse on the day Ayres testified he spoke to Anderson, it would logically follow that Anderson's recollection of the date is more accurate than that of Ayres. We find that Ayres made the statements attributed to him by Anderson" and that they were made on September 1, 1939. Lucas did not testify, and Lee and Ayres denied that they had any knowledge of union activities in the plant or of Evans' connection therewith until after Evans was discharged. Ayres denied that Lucas talked to him about the Union at that time. Lee did not spe- cifically deny that Lucas informed him of the formation of the Union. We do not agree with the Trial Examiner's finding that the respondent was not aware of the organization of the Union or of Evans' activity in its behalf. The testimony of Evans and Hy- duke that Lucas volunteered the information that he had informed Lee and Ayres of the Union, and the further testimony of Anderson that Ayres questioned him about the Union on the following day, all of which we believe, lead us to conclude, and we find, that Lucas informed Lee and Ayres on August 31 of the formation of the Union, and that he also told Ayres that Evans was its leader. This con- clusion is further supported by the undenied testimony of Almquist, which we believe, that within a few hours after Evans' discharge Lee told Almquist "I figured you were the first lieutenant," and that Ayres told him at the same time that he had probably "been led astray by Evans' agitation." Evans was discharged at noon on September 1, 1939, without no- tice. On only one other occasion had the respondent discharged an employee during the working day. The respondent contends that Evans was discharged because of the return to the Los Angeles ware- house of Rogan, an older employee in point of service, and that, since poor business conditions made it necessary to discharge some- one, the respondent chose Evans because he, was not an efficient em- ployee. Rogan had worked in the Los Angeles warehouse approxi- mately 2 years before he was transferred to the San Francisco ware- house in the early summer of 1939. Lee considered him an efficient GENERAL MOTORS SALES CORPORATION 1057 and desirable employee and when, in August 1939, Rogan requested that he be allowed to return to Los Angeles he was given permission to do so. ' Shortly'after noon on September' 1, 1939, Lee informed Evans that Rogan was returning to work and that Evans was being discharged. Evans asked Lee if his discharge did not have something to do with "this union business" he had been hearing about, whereupon Lee read him a dismissal slip stating that the discharge was due to the return of Rogan, the fact that Evans was one of the younger em- ployees in point of service, and that his services had proved unsatis- factory. Toward the close of the discussion Evans announced vigor- ously that the real reason for his discharge was the Union, that the respondent could not stop the Union by discharging him, and that he would be back to work shortly. Upon leaving Lee's office, Evans was followed by Ayres, who had been asked by Lee to see that Evans left the building. Evans and Ayres engaged in an altercation during which Evans was slightly injured and in which Lee and Almquist participated. Evans left the plant after receiving first-aid treatment. Although numerous attempts were thereafter made by the Union to secure Evans' reinstatement, the record does not disclose that Evans' altercation with Ayres was ever advanced by the respondent as a reason for its refusal to reinstate him. Nor does the respondent now -::';; on this incident as the basis for its failure to reinstate Evans. The question of Evans' efficiency and desirability as an employee was closely contested at the hearing. Evans testified without con- tradiction, and we find, that at the time he was discharged he pro- tested to Lee that he was a good picker and that Lee admitted this to be a fact but told him, "you talk too damned much." L. H. Michener, a regional director of the Union, also testified that Lee told him during a conference that Evans was a good worker but that he talked too much and distracted others. Lee denied having told Michener that Evans was a good worker. In view of Lee's statement to Evans, and in view of the similarity between the uncontradicted testimony of Evans and that of Michener on this point, we do not credit Lee's denial and find that he told Michener that Evans was a 'good worker. Lee claimed that Evans was not a good picker, and stated that he was unwilling to accept new assignments, talked too much and too loudly, sang and whistled at his work, thereby dis- turbing other employees. He testified also that Ayres, his assistant, had reported instances of Evans' unsatisfactory work and that on one or two occasions Lee had cautioned Evans to be more quiet. Evans denied that Lee had ever spoken to him about his conduct and denied that he had been unwilling to accept new assignments. Evans also testified that he could not recall any instance when Lee had given 4 058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him an order and that Ayres had criticized his work on only one occasion. Hyduke, who was Evans' immediate superior, testified that Evans was one of the best pickers in the warehouse, that he used Evans on jobs which required speed, and that he used him to put away stock, a task which requires a good worker. Almquist, who worked with Evans, testified that Evans was a better and faster picker than most of the others and that he was no less accurate than others, considering the fact that he picked more orders. Almquist also testified without contradiction, and we believe his testimony, that about July 15, or August 1, 1939, when business was slack, some of the employees with more seniority than Evans had to take a half day off, but Evans was permitted to work full time. Hyduke and Almquist testified that Evans was not loud or boisterous. Since Hyduke, Evans' immediate superior, and Almquist, his fellow em- ployee, worked closely with Evans and were consequently in a po- sition to observe his efficiency and his conduct, we accept their testimony as true, and reject that of Lee and Ayres. In his Intermediate Report, the Trial Examiner, after discussing generally the evidence as to Evans' efficiency stated that he was "not convinced that the respondent considered Evans a conspicuously ineffi- cient or undesirable employee when it discharged him." We agree with this conclusion of the Trial Examiner and further find from the evidence that Evans was in fact an efficient employee and that the re- spondent's contention to the contrary has Snot been established. The respondent made no effort to prove that Evans was less efficient than others doing the same type of work and that he was consequently the person to be discharged in order to make room for Rogan. Further- more, although it was shown that Rogan had more seniority than Evans, the record does not disclose that Evans had less seniority than other employees engaged in similar work. We do not contest the respondent's right to return Rogan to its Los Angeles warehouse, nor, in view of the condition of its business at the time, to dismiss another employee in order to employ Rogan there. But. the selection for such dismissal must be made upon a non-discriminatory basis. The Act prohibits the choice of an employee upon the basis of his union activity. As already stated, Evans was discharged without notice, immediately after his return from lunch, on the day following Lucas' disclosure to Ayres of the fact that a union was being organized, and within a short time after Ayres had checked with Anderson to ascertain the truth of the report by Lucas. The respondent was, as we have already found, aware of Evans' union leadership. Its unusual action in dismissing Evans in the middle of the day and without notice causes us to con- clude that the respondent, upon learning that Evans was organizing GENERAL MOTORS SALES CORPORATION 1059 a labor union, decided to get rid of him immediately and thereupon selected'him for displacement by Rogan. We find that the respondent discharged Evans and thereafter re- fused to reinstate him because of his activity on behalf of the Union, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. B. The alleged discriminations as to Almquist, Franke, Chase, Hyduke, and Fontes The complaint alleged that, since September 1939, the respondent had discriminated against John C. Almquist, Marvin Franke, Charles Chase, Andrew Hyduke, and Henry Fontes in regard to their promo- tions, demotions, and working assignments and by denying to them opportunity for further advancement. The respondent denied'the allegation. In its brief filed with the Board the Union admitted that, with respect to Chase and Pontes, "the record does not disclose suffi- cient [evidence] upon which there can be based a finding that the re- spondent discriminated against these two men . . ." The Trial Ex- aminer recommended that the complaint be dismissed as to all these complainants. Upon the whole record, we find that the respondent did not discriminate with respect to the terms and conditions of employ- ment of Charles Chase and Henry Fontes. We shall discuss below the evidence with respect to the remaining complainants. John C. Alrmquist was employed by the respondent on December 6, 1938, as a picker. He testified without contradiction, and we find, that, in the early part of 1939, he was told by Lee that the possibilities for his advancement were good and that Lee had "something" in mind for him. He further testified that, about 2 months later, he took up with Ayres a problem which had arisen in connection with his duties and'Ayres told him not to worry about it because, "as he (Ayres) understood it, they were going to make an understudy" of Almquist for one of the "key positions." Ayres admitted that prior to Septem- ber 1939 he intended to advance Almquist to a so-called key position but testified that Almquist's work thereafter became unsatisfactory and that 'he was not promoted. Sometime before July 1, 1939, Alm- quist was made a checker. Almquist testified that from the time the Union was formed he was gradually taken off checking duties and given more picking work until, within a month, he was working entirely on picking, a position he still held at the time of the hearing. He testified that the job of a checker is preferable to that of a picker because the opportunities for promotion are greater and because the pay is somewhat higher. 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Both Lee and Ayres characterized Almquist's work as unsatisfac- tory at the time of his transfer to picking, although Ayres-admitted that he had originally contemplated making Almquist a shortage clerk and both admitted that there had been no fault with Almquist's work until after Evans was dismissed. Lee testified, and we believe his testimony, as did the Trial Examiner, that in about the latter part of September Almquist's "mind apparently was occupied . . . with other things outside of business which distracted him from the proficiency of his work," and that after a period of observation he was transferred back to picking. He also testified that thereafter Almquist seemed to be "in a fog or a daze" as to what he was doing, and that on one occasion in October 1939, when Almquist was assigned to checking on a night shift, he made so many errors that Lee asked Hyduke, who was then Almquist's superior, to take Almquist off checking. Although Almquist denied that he was removed from the checking job on the night shift, and Hyduke could not recall having received such instruc- tions from Lee, the respondent's records' support Lee's testimony and we find that Almquist was removed from the night checking job for the reasons assigned by Lee. For 2 or 3 months prior to September 1, 1939, Almquist was as- signed to take inventory in the accessory room, a duty which requires about a half day's work once a month. He testified that he thought that, by being assigned such inventory work, he had made a start toward a key position because he had found from past experience that this job ordinarily led to advancement. He took the last inventory just prior to Evans' discharge and was thereafter replaced by Rogan. I.ee testified that Almquist was not assigned to take inventory there- after because he had made too many mistakes, and that, since August 1939, about 8 or 10 people, some of whom were merely temporary em- ployees, had been assigned to take inventory. We find that the re- spondent did not discriminate against Almquist by relieving him of the duty of taking inventory. With respect to the respondent's claim that it had not deprived Alm- quist of other opportunity for advancement because of his union activ- ity, Lee testified without contradiction, and we credit his testimony, as did the Trial Examiner, that he had on two or three occasions warned Almquist that he was devoting too much of his time to con- versation and activities which had no connection with the respondent's business. On November 29, 1939, Lee wrote to Almquist a letter call- ing attention to Almquist's neglect of duty and warning against its continuance. As further basis for Almquist's failure to receive promotions which he had earlier been led to expect, several witnesses for the respondent cited two instances of Almquist's interference with management in GENERAL MOTORS SALES CORPORATION 1061 February and May 1940, on which occasions Almquist intervened when employees were called into the office for a discussion of employee prob- lems. Almquist testified that he insisted upon being present at these conferences because of his membership on the shop committee of the Union and because he had been requested by the employees involved to attend. Lee testified, and the record shows, that at the time of these incidents the Union and the respondent were engaged in working out a grievance procedure and that no agreement had been reached on this subject until some time later. We find that Allquist had no inter- est in these conferences between the respondent and its employees and that his intercession was unwarranted. Upon all the evidence we find, as did the Trial Examiner, that the respondent has not discriminated against Almquist with respect to terms or conditions of employment. Andrew Hyduke and Marvin Franke will be discussed together, since their cases present a single question. Franke was employed in December 1938 as a packer. About 6 months later he was made a shipping clerk and later in the summer he became a shipping super- visor. Hyduke was employed by the respondent in 1928. At the time the Union was organized he was a stockroom supervisor and also had the title of utility stockroom supervisor, a title which placed him in authority in the absence from the plant of Lee and Ayres. Both were members of the Union, and Franke was a member of the bargaining committee. Their claim of discrimination concerns their removal from their supervisory positions and other changes in their titles and duties. In February 1940, the Union called a strike at the respondent's plant, in which Hyduke and Franke participated. Hyduke was one of the employees on the picket line. Franke testified that, as a mem- ber of the strike committee, he was designated to, and did, contact various carriers and request that they cooperate with the Union by refusing to cross its picket line. However, Lee testified that Franke threatened to divert freight business from some of the carriers after the strike if they crossed the Union's picket lines. Earl L. Wilson, owner of a delivery business which carried products of the respondent, testified that Franke told him, "if I did pick up down there that after this thing was settled, I wouldn't get any more freight out of there." Franke denied that he made the statements attributed to him by Wil- son. Under the circumstances, we do not credit his denial and we find that he made them. Although Franke testified that he had never, on his own responsibility, selected a carrier for the movement of mer- chandise, Lee testified that certain orders of customers are marked "BW" to indicate "best way" or "QW" indicating "quickest way" and that it was left to the discretion of the shipping clerk to determine the method of transportation under such circumstances. Whether or 451269-42-vo1 34-68 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not Franke had ever before exercised such discretion, it is clear, and we find, that he was in a position to carry out the threats to divert business and that the carriers were aware of his power in this respect. During the strike, the respondent attempted to negotiate with the Union the question of whether Franke and Hyduke should retain their supervisory status in view of their union membership and in view of Franke's activities. According to Lee's uncontradicted testimony, which we believe, the International representatives of the Union re- fused to discuss the question at that time, saying that they were not in a position to make a decision for the men, and asked that the ques- tion be left for discussion after the men returned to work. On the day after the strike ended, Franke and Hyduke were called into Lee's office and were told that they could no longer hold their supervisory positions and belong to the Union. Franke testified that Lee told him on that occasion that "they couldn't have a man in that position that would go out and contact truck lines and try to keep them out of their building and cause unfriendly relations between the lines and the Company," that Franke replied that he "did not think he had done that," but that Lee nevertheless said, "you have got to get out of the Union or get away from your job." There is no dispute in the testi- mony concerning this ultimatum. Franke was thereupon made a picker. Hyduke was relieved of the duty of signing corrections on orders and was no longer utility stockroom supervisor. However, he retained the remaining duties connected with his position as stockroom supervisor. Thereafter the union committee met several times with repre- sentatives of the respondent in an effort to have Franke and Hyduke reinstated to their former positions. According to Lee's uncontra- dicted testimony, which we believe, "there were proposals and coun- terproposals made, and a proposal made by the Union, and finally agreed to by the Management, which was to the effect that Marvin [Franke] could go back to the shipping desk with the duties of writ- ing bills of lading only, but with no supervision authority as to the direction of other employees' efforts." Lee further testified without contradiction, and we believe his testimony that, after several meet- ings with the committee, "they came back and said that they had had a meeting the night previous of their entire body and had discussed it and that the decision was that Mr. Hyduke and Mr. Franke would not be a representative of Management and have supervisory posi- tions with the right to hire and fire or the right to recommend hir- ing and firing, but would be members of the U. A. W. A., C. I. O. workers, the same as anyone else in the plant." It is thus clear, and we find, that the Union agreed, with the acquiesence of Hyduke and Franke, to the removal of Hyduke and Franke from their super- visory positions. GENERAL MOTORS SALES CORPORATION 1063 Frank had received a pay increase in December 1939 and Hyduke had received one in August 1939 and another in January 1940. Neither received any decrease in pay when the change in duties was effected. In August 1940 Franke was relieved of the function of writing bills of lading, and was made a packer and checker, after Lee overheard a telephone conversation between Franke and a carrier, which aroused his suspicions as to Franke's loyalty to the re- spondent. Although it is not clear that the conversation was an im- proper one, we cannot say that Lee's reaction to it was unjustified. We find that the respondent did not dicriminate against Franke by refusing to permit him to write bills of lading after August 1940. In September 1940 the respondent, as part of its national warehouse program, made certain changes and reclassifications in its warehouse personnel which affected Hyduke and Franke, who received new titles without, however, a change in duties. The Trial Examiner found, and we agree, that the changes introduced in the Los Angeles warehouse in organization, personnel, and procedure were part of a national program and were not made because of a desire to discrim- inate as to members of the Union, including Franke and Hyduke. We find accordingly. There remains for decision the question of whether the respondent was justified in requiring Franke and Hyduke to relinquish their supervisory functions or resign their union membership. We believe that the respondent has engaged in no unfair labor practice by impos- ing this requirement. The respondent had sharply brought to its at- tention, through the activities of Franke in the February strike, the results of union activity by a supervisory employee performing work of the kind in which Franke was engaged. He was in a position where, because of his management duties, he had an opportunity to interfere with the respondent's business in furtherance of his union objectives. It is consequently not surprising that the respondent desired to avoid a repetition of Franke's conduct. Hyduke occupied a position which placed him in complete charge of the warehouse during certain pe- riods and in which he was able to interfere with the respondent's business when confronted with conflicting loyalties to the respondent and to -the Union. Thus, as long as these men simultaneously retained their positions with the respondent and their membership in the Union, their impartiality in the performance of their work remained questionable. Although we have frequently held that a supervisory employee is an employee within the meaning of Section 2 (3) of the Act and that an employer may not discriminate against him because of his union membership, we think that the present circumstances are distin- guishable because of the possible utilization by these men of their 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisory positions to advance the union's interests to the detriment of the respondent's business. It is clear that, under the circum- stances, the respondent did not desire to discriminate against these men because of their union membership and activity but rather that it required the relinquishment of their supervisory functions because of the conflict of loyalties engendered by their union affiliation. Moreover, the respondent negotiated with the Union concerning its position in this respect, and the Union agreed that Franke and Hyduke should relinquish their supervisory duties. We find that the respondent, by requiring Franke and Hyduke to relinquish their supervisory status if they retained their union membership, has not discriminated against them, within the mean- ing of Section 8 (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent de- scribed 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the respondent engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action in, order to effectuate the policies of the Act. Since we have found that the respondent discriminated against Harry L. Evans in regard to hire and tenure of employment, we shall order the respondent to offer him immediate and full rein- statement to his former or substantially equivalent employment, without prejudice to his seniority and other rights and privileges. We shall also order the respondent to make him whole for any loss of pay he has suffered by reason of the discrimination against him. Inasmuch as the Trial Examiner did not recommend the reinstate- ment of Evans, the respondent will not be required to give him back pay from December 12, 1940, the date of the Intermediate Report, to the date of this Decision.- The back pay awarded Evans will be a sum of money equal to the amount which he normally would have earned from September 1, 1939, to December 12, 1940, and from the Matter of E. R. Haflelfinger Company, Inc. and United Wall Paper Crafts of North Amer-tea, Local No. 6, 1 N L. R. B. 760. GENERAL MOTORS SALES CORPORATION , 1065 date of this Decision to the date of the offer of reinstatement, less his net earnings 2 during such periods. Since we have found that the respondent has not discriminated against the remaining complainants, we shall dismiss the complaint as to them. 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. International Union, United Automobile Workers of America, Local 216, C. I. 0., is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of em- ployment of Harry L. Evans, 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 respondent has engaged in and is engaging in unfair labor practices within the meaning of Section '8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, with respect to John C. Almquist, Marvin Franke, Charles Chase, Andrew Hyduke, and Henry Fontes. 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, General Motors Sales Corporation (General Motors Parts Division), Los Angeles, California, its officers, agents, suc- cessors , and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Union, United Au- tomobile Workers of America, Local 216, C. I. 0., or any other labor 2 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , mcurred 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 or the unlawful refusal of employment to him and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber* Company and United Brotherhood of Carpenters and Joiners of America , Lumber and Sawmill Worle 'rs Union, Local 2590 , 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. National Labor Relations Board, 311 U. S. 7. 1066 DECISIONS OF NATIONAL LABOR RELATIONS'BOARD organization of its employees, by discharging and refusing to rein- state any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment or to any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 or the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Harry L. Evans immediate and ,full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights or privileges; (b) Make whole Harry L. Evans for any loss of pay he may have suffered, by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from September 1, 1939, to the date of the Intermediate Report and from the date of this Order to the date of the offer of reinstatement, less his net earnings during such period; (c) Post immediately in conspicuous places throughout its ware- house in Los Angeles, California, 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) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become or remain members of International Union, United Automobile Workers of America, Local 216, C. I. 0., and that the respondent will not discrim- inate against any employee because of membership or activity in that organization; (d) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to John C. Almquist, Marvin Franke, Charles Chase, Andrew Hyduke, and Henry Fontes. MR. EDWIN S. SMITH, dissenting in part: I disagree with the decision of the majority that the respondent has not discriminated against Almquist, Hyduke, and Franke, GENERAL MOTORS SALES CORPORATION 1067 Almquist was, next to Evans, the most active union member in the respondent's warehouse, and the respondent was aware of this fact, at least after September 1, 1939, when Evans was discharged. Lee and Ayres admitted that Almquist had been promised advancement on two occasions and that his work was entirely satisfactory prior to the discharge of Evans. It seems to be more than a coincidence that the respondent discovered his alleged inefficiency only when it learned of his union activity and after he had given more than satis- factory service for almost a year. Almquist was demoted from a checker to a picker and was no longer permitted to take the monthly inventory which he testified was considered a step toward promotion. Almquist has remained a picker, and, although his salary has not been decreased, he has failed to receive the advancement which his work merited and which was promised him. I would find that the re- spondent has discriminated against Almquist with respect to the terms and conditions of his employment because of his activity on behalf of the Union. I also disagree with the finding of the majority on the question of whether the respondent discriminated against Franke and Hyduke by compelling them to give up either their union membership or their supervisory duties. That supervisory employees are entitled to the protection of the Act is no longer open to question. The Act guar- antees to all employees the right to join unions if they so desire. I can see no reason, in the circumstances of the case under consideration, for removing that protection from Hyduke and Franke. If the re- spondent in this case is permitted to offer a choice of membership or supervisory status, that guaranteed protection avails employees noth- ing, and the respondent is thereby allowed to warn all employees that if they belong to the Union they may never obtain supervisory posi- tions. Clearly, such an effect is not contemplated by the Act. The action of the Union in accepting one of the alternatives offered by the respondent does not alter my conclusion, since I believe that the ,respondent was not privileged to compel the choice. I would find that the respondent has discriminated with regard to the terms and conditions of employment of Hyduke and Franke.