Jefferson Electric Co.

National Labor Relations Board - Board Decisions

Jul 14, 1938

8 N.L.R.B. 284 (N.L.R.B. 1938)

In the Matter Of JEFFERSON ELECTRIC COMPANY and UNITED
ELECTRICAL AND RADIO WORKERS OF AMERICA
Case No. C-336.-Decided Jitliy 14, 1938
Electrical Equipment Manufacturing Industry-interference , Restraint, and
Coercion: - furnishing facilities for formation of labor organization and effecting
transfer ,'of such: organization to ;company -favored union ; , permitting organiza-
tional activities on company property ; urging, persuading , and warning employees
to join one labor organization and not to join or assist another-Contracts:
closed-shop , with labor organization which has attained majority status after
receiving mssisfance • from employer 's: unfair labor practices , and, which is not free
choice of majority of, employees iinvalid ; employer ordered to cease giving . effect
to-Discrim-ination disGha,rges , for union membership and activity,-Reinstate-
nient Ordered Back Pay awardied-Order : employer ordered to cease and desist
from recognizing iconlpany f `ivoied union asi exclusive bargaining , representa-
tive^unless and'untiltsame 'is certified as such by Board.
Mr . Stephen M Reynolds, for the Board.
Mr.: Otto' A. Jabur_elc, of Chicago, Ill.,,for the respondent.
Mr. James .B Carey, ofew York City, for the United.
Mr. Joseph A. Padu;ay, 11TH DW Tracy„ and 41r. E. D. Bieretz,
of Washington , D. C., and Soellce , 'Koehni ce Loewy, by' Mr. Charles
H. Soelke, of Chicago, Ill., for the I. B. E. W.
Mr. Richard A. Perkins , of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed July 2, 1937, by United Electrical and
Radio Workers of America, herein called the United, the National
Labor Relations Board, herein called the Board, by Leonard C. Ba-
jork, Regional Director for the Thirteenth Region (Chicago, Illinois),
issued its complaint, dated October 15, 1937, against Jefferson Electric
Company, Bellwood, Illinois, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. The complaint and an accompany-
8 N. L. R. B., No. 33.
284
DECISIONS AND ORDERS 285
ing notice of hearing were duly served upon the respondent and upon
the United.
The complaint alleged in substance that from about May 12, 1937,
to the date of the complaint the respondent had solicited and encour-
aged its employees to join the International Brotherhood of Electrical
Workers, herein called the I. B. E. W., and by threats of discharge
had discouraged its employees from joining the United and that the
respondent had discharged Edward J. Phelan, Nikols Franzen 1 and
William McMahon on June 11, and Alfred Wittersheim on June 18,
1937, for assisting in the formation of the United and refusing to join
the I. B. E. W.
Pursuant to notice, a hearing was held in Chicago, Illinois, from
October 21 to October 26, 1937, before William Seagle, the Trial Exam-
iner duly designated by the Board. On October 21, 1937, the respond-
ent moved to dismiss the complaint for the reason that delay in
issuance of the complaint after the filing of the charge would prejudice
the respondent in the event that it should be ordered to reinstate,
employees with back pay. The motion was denied. This ruling of
the Trial Examiner is hereby affirmed. The respondent on October
21, 1937, filed its answer, admitting the allegations of the complaint
regarding the nature of the respondent's business, denying that it had
committed or was committing any of the unfair labor practices set
forth in the complaint and averring that Wittersheim, Franzen, and
McMahon were laid off for lack of work, rather than discharged, and
that Phelan was discharged for insubordination.
Evidence was adduced at the hearing relating to a contract be-
tween the respondent and the I. B. E. W. The I. B. E. W. on October
22, 1937, the second day of the hearing, moved for leave to intervene
and for a continuance. The motion for leave to intervene was
granted, and the motion for a continuance denied. On the same day
counsel for the Board moved and the Trial Examiner allowed an
amendment to the complaint alleging a further violation of Section
8 (3) of the Act in that the respondent had entered into a closed-
shop agreement on May 17, 1937, with the I. B. E. W. after that
organization had been unlawfully assisted by unfair labor practices
on the part of the respondent. The respondent on October 25, 1937,
filed an amended answer to the complaint to meet the issues raised by
the amendment and affirmatively alleged that the I. B. E. W. repre-
sented a majority of the respondent's employees at the date of the
May 17 contract. On October 26, 1937, upon motion of the Board's
counsel the allegations of the complaint were dismissed as to William
McMahon. On the same day, over the objections of the respondent
1 Franzen 's given name is spelled variously in the record as "Nikols," "Miklos," "Niklos,"
and "Nikolas " Franzen could not spell his name for the reporter.
286 NATIONAL LABOR RELATIONS BOARD
and the I. B. E. W ., a further amendment to the complaint was
allowed alleging that at the time the contract of May 17 , 1937, was
made the I. B. E. W . did not represent a majority of the respondent's
employees . Since this issue was first raised in the respondent's
amended answer and all parties introduced evidence pertaining there-
to, we cannot regard the Trial Examiner 's ruling as prejudicial, and
it is hereby affirmed.
The Board , the respondent , and the 1. B. E. W . were represented
by counsel and the United by one of its officials. All participated in
the hearing . During the course of the hearing the Trial Examiner
made several rulings on motions and on objections to the admission
of evidence . The Trial Examiner refused to permit the respondent
to introduce in evidence copies of circulars distributed among its
employees by the United . The offer was made to explain prior testi-
mony which had been admitted at the instance of the United. While
the Trial Examiner might have admitted the circulars on the same
basis upon which he received similar evidence tendered by counsel
for the Board and the United , the exclusion was not prejudicial be-
cause we regard all such evidence as irrelevant to the issues. The
Board has reviewed the rulings made by the Trial Examiner at the
hearing and finds that no prejudicial errors were committed. All
such rulings are hereby affirmed.
On December 23, 1937, the Trial Examiner filed an Intermediate
Report, finding that the respondent had engaged in unfair labor
practices affecting commerce within the meaning of Section 8 (1)
and (3 ) of the Act. Exceptions to the Intermediate Report and re-
quests for oral argument were filed by the I . B. W. on January 3
and by the respondent on January 5, 1938. Pursuant to notice, a
hearing was held before the Board on February 10, 1938, in Wash-
ington, D. C., for the purpose of such oral argument. The re-
spondent, the I. B. E. W., and the United participated. We have
considered the exceptions to the Trial Examiner's Intermediate Re-
port and find them without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent , an Illinois corporation , has its principal office and
operates a manufacturing plant at Bellwood , Illinois, a suburb of
Chicago, and is engaged in the production, distribution, and sale of
electrical supplies, including transformers , electrical protective de-
vices, fuses , outlet boxes , fuse wire, fuse bases , and various metal
stampings.
DECISIONS AND ORDERS 287
Raw materials to the value of about $125,000 each month are used
in the respondent's manufacturing processes. Of such materials, 75
per cent are obtained outside Illinois, from Indiana, Ohio, Penn-
sylvania, New York, and the New England States. The respondent's
annual gross sales range from $4,000,000 to $6,000,000. Distribution
of the products manufactured by the respondent is as follows : Illinois,
10 per cent; States other than Illinois, 85 per cent; foreign countries,
5 per cent.
II. THE ORGANIZATIONS INVOLVED
United Electrical and Radio Workers of America is a labor organi-
zation affiliated with the Committee for Industrial Organization. ' It
admits employees of the respondent to membership.
International Brotherhood of Electrical Workers is a labor organi-
2,ation affiliated with the American Federation of Labor. The
I. B. E. W. has chartered Local 1031-B which admits to membership
employees of the respondent.
The Independent Union, herein called the Independent, an unaf-
filiated labor organization, was formed among the respondent's em-
ployees on May 10, 1937, but its existence terminated the following
day.
III. THE UNFAIR LABOR PRACTICES
A. Background of labor organization among the respondent's
employees
Prior to 1937, no' labor organization existed among the respond-
ent's employees. There was an association known as the Jefferson
Social Club which admitted the employees to membership and which
occupied rented quarters across the street from the respondent's
plant. It appears, however, that the Jefferson Social Club existed
solely for purposes of recreation and never attempted to function
or to hold itself out as a labor organization.
In January 1937, J. M. Marquis, business agent for the I. B. E. W.,
approached James C. Daley, vice president of the respondent, and
announced his intention to organize the respondent's employees.
Daley referred him to Enos A. Hamer, who was foreman of the
shipping department of the respondent's plant and president of the
Jefferson Social Club. Marquis requested a list of the respondent's
employees. Hamer refused to furnish such a list. Marquis pro-
ceeded to carry on organizing activities and on April 28, 1937, in-
formed Daley that the I. B. E. W. claimed to represent 240 of the
respondent's employees. Daley reminded Marquis that the respond-
ent employed over 900 persons, and the conference ended with no
action taken.
288 NATIONAL LABOR RELATIONS BOARD
Meanwhile in April 1937, the United commenced to solicit the em-
ployees to join that organization. Daley testified that the organizing
activity of the United came to the attention of the respondent as
early as May 1, 1937, although the United did not approach the re-
spondent's officers until several weeks later. During the first 2 weeks
in May, United organizers were actively engaged in distributing
membership applications among employees of the respondent, and
circulating handbills urging the employees to join the United. These
activities were carried on near the plant but off the respondent's
premises.
B. The formation of the Independent and its transfer to the
I. B.E.W.
On May 10, 1937, during working hours, William Furey, Angelo
Kosto, Russell Keller, and Buddy Pierce circulated through the
respondent's plant a petition calling for the organization of the In-
dependent and protesting, any attempt to affiliate with an outside
group. These men are described by a United witness as assistant
foremen. The respondent admits that Kosto and Pierce are gang
bosses, supervising about 40 employees each, but claims that Furey
and Keller are supply clerks without supervisory functions. At
Furey's request, Daley caused the plant to be shut down early at
about 2:30 p. m. on that day, May 10, so that the employees might
attend an organization meeting to be held by the Independent at the
Jefferson Social Club rooms.
The Independent convened at the meeting as scheduled, with Gene
Sadt, a shipping clerk, presiding. Sadt appointed about 25 delegates
from among the employees to work out a plan of organization.
United organizers attempted to speak in behalf of their organization
but were ruled out of order, whereupon a number of those present
adjourned to the sidewalk to hold a meeting of their own.
The 25 Independent delegates planned to meet at 10 o'clock the
next morning, May 11, in the cafeteria located in the respondent's
plant. This meeting was postponed until 2 p. m. the same day.
The Independent group met in the cafeteria and then adjourned to
the respondent's board of directors' room. While the Independent
group was holding its meeting, Marquis, the I. B. E. W. business agent,
called on Daley at the respondent's offices. Marquis informed Daley
at this meeting that the I. B. E. W. claimed to represent a majority
of the respondent's employees but Daley expressed a doubt concern-
ing this claim. Marquis did not offer at this time to furnish any
proof of authority to represent employees of the respondent. Daley
sent for Hamer who, at Daley's suggestion, introduced Marquis to the
Independent delegates assembled in the board of directors' room.
DECISIONS AND ORDERS 289
Marquis addressed the delegates in behalf of the I. B. E. W. After
Marquis' speech, the Independent delegates signified their desire to
have further information and the meeting so ended. From this time
on the Independent group ceased to function as such and some of
the delegates became organizers for the I. B. E. W.
C. The I. B. E. W. membership campaign
On either the afternoon of May 11 or the morning of May 12,
Marquis got permission from Daley to hold an I. B. E. W . organiza-
tion meeting at noon on May 12 on an enclosed lot owned by the
respondent adjacent to its plant. Daley also agreed, at Marquis'
request, to extend the employees ' lunch period from a half hour to
a full hour for the _ convenience of the I. B. E. W . in holding the
meeting. A notice of the meeting appeared on the respondent's
bulletin board. At noon on May 12 the I. B. E. W . organizers
brought a sound truck on the respondent 's premises and set up a
public-address system over which I. B. E. W . organizers and Harry
Rudnik, the respondent 's chief electrician, spoke in favor- of the
I. B. E. W . Several foremen attended the meeting but took no
active part . M. J. Ruler, maintenance foreman and head of the
respondent 's police system , stood on guard with one of his force at
the locked gate leading from the lot to the street . Four or five
hundred of the respondent 's employees attended the meeting.
Thereafter on various occasions Marquis used the plant cafeteria
as headquarters to enroll members and collect dues. Marquis testi-
fied that he was there first on May 18, but four other equally credible
witnesses , including two for the respondent , testified that he was
in the plant cafeteria on various occasions between May 12 and May
18. We conclude that Marquis did in fact use the cafeteria for
campaign purposes during the period from May 12 to May 18.
There is evidence that during this period several foremen, among
whom M . J. Ruler is identified , distributed I. B. E. W. membership
applications among the employees . Ruler denied taking part in
such activity, but he admitted that he did join the I. B. E. W., and
at least 11 other foremen also joined. There is also testimony that
the foremen disparaged the United and urged membership in the
I. B. E. W . This activity is denied by the respective foremen.
However , their membership in the I. B. E. W . indicates the attitude
of the respondent 's supervisory staff and renders it likely that the
foremen solicited membership for the I. B. E. W . and used their
influence in its behalf.
All this activity took place while the United was conducting a
membership campaign, and after Daley had notice of the United's
efforts to organize the employees . On May 17 the respondent and
290 NATIONAL LABOR RELATIONS BOARD
the I. B. E. W. signed a short-form closed-shop contract, which
will be discussed in Section D below.
The I. B. E. W. takes the position that it had been chosen repre-
sentative by a majority of the employees by May 11 and that the acts
of the respondent in furnishing facilities for its campaign there-
after, although admittedly of assistance to the I. B. E. W., were
permissible under the Act. This is an incorrect application of the
law. The Act guarantees to employees the freedom to choose repre-
sentatives, and this freedom involves the liberty to change repre-
sentatives. Clearly, an employer may not lawfully recruit mem-
bership among his employees for any labor organization, save in-
directly through a closed-shop contract which falls within the pro-
viso of Section 8 (3) of the Act. The contracts in this case were
executed, as we shall see, after the I. B. E. W. had benefited by the
unfair labor practices committed by the respondent.
The respondent claims that although it furnished the I. B. E. W.
facilities for organization, yet it remained neutral throughout and
was ready to grant such favors to any labor organization. This
claim is not consistent with the facts. In the first place the re-
spondent's conduct, which we have reviewed, cannot be construed as
an expression of neutrality between competing labor organizations.
The favoritism shown the I. B. E. W. by the respondent unquestion-
ably aided the I. B. E. W. materially and injured the United. A
mere uncommunicated willingness on the part of the respondent to
extend equal treatment to other labor organizations could not cure
the effect of the favors granted the I. B. E. W. Secondly, we
cannot find that the United was prejudiced only by its omission to
demand such extraordinary favors. The conduct of the respondent
on the sole occasion when it dealt with the United indicates the
respondent's partiality. On May 20, two United organizers called
on John Bennan, president of the respondent, and inquired how far
the respondent had progressed in its dealings with the I. B. E. W.
Although the short-form closed-shop agreement with the I. B. E. W.
had been signed May 17, Bennan professed to know nothing about
it, and made no attempt to find out.
It is plain from the above-described course of events that the I. B.
E. W. received the active and patent cooperation and assistance of
the respondent. In January 1937, when Marquis first sought a list
of employees from the respondent, the request was refused. This
action was in marked contrast to the reception given Marquis by
Daley and Hamer in May 1937, after the United had commenced its
organization campaign. At that critical juncture in the organiza-
tional activity of its employees, the respondent brought its full in-
fluence and pressure to bear on behalf of the I. B. E. W. In the
DECISIONS AND ORDERS 291
brief 2-day existence of the Independent the respondent closed the
plant early on May 10 to permit an Independent organization meet-
ing, and several of its gang bosses recruited membership for the pro-
jected organization. On May 11, the next day, the new organization
was virtually transferred to Marquis when Hamer, at Daley's sugges-
tion, introduced Marquis to the 25 Independent delegates and the
locale of organization activity was temporarily changed from the
plant cafeteria to the respondent's board of directors' room. Hav-
ing effected the transfer of the Independent to the I. B. E. W., the
respondent permitted Marquis to perfect his organization through
the sound-truck meeting on May 12 and through his cafeteria mem-
bership campaign from May 12 to May 18. As we have indicated,
we do not construe these actions as mere innocuous gestures of friend-
liness consonant with a policy of strict neutrality. On the contrary,
the respondent's actions gave the vital stimulus to employee organ-
ization in the direction desired by the respondent and to that extent
deprived its employees of the right of free choice of representatives
guaranteed by Section 7 of the Act.
We find that by furnishing facilities for the formation of the
Independent, permitting gang bosses to participate therein, trans-
ferring the Independent to the I. B. E. W., furnishing facilities for
the I. B. E. W. organization meeting on May 12 and for the I. B. E.
W. membership campaign following May 12, and permitting super-
visory officials to assist the I. B. E. W., the respondent has interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
D. The contracts of May 17 and June 09, 1937
On May 15, 1937, during the cafeteria organizing campaign, Mar-
quis exhibited to Daley, vice president of the respondent, a certificate
executed on that day by John J. Slora, a notary public, to the effect
that on that date Slor i had been shown 703 I. B. E. W. membership
applications signed by employees of the respondent. Slora did not
testify and there was no showing that he had a pay roll of the re-
spondent or any genuine signatures before him with which to com-
pare the applications to ascertain that the I. B. E. W. applicants
actually were employees of the respondent on the date of application.
Daley accepted the majority showing made by the I. B. E. W. in the
manner described and on May 17 recognized that organization as
exclusive bargaining agent for the respondent's employees and exe-
cuted a short-form closed shop agreement with it. The short-form
agreement recited that the parties should meet within 10 days and
negotiate a further contract.
117213-39-vol. 8-20
292 NATIONAL LABOR RELATIONS BOARD
Meetings between the respondent's officials and I. B. E. W. repre-
sentatives ensued and a proposed further agreement was drafted.
After the membership of the I. B. E. W. voted by post-card ballot to
ratify the proposed agreement, a long-form closed-shop contract was
entered into on June 29, 1937, between the respondent and the I. B.
E. W. This contract was to run until December 31, 1938. Thus,
after having sponsored the I. B. E. W.'s organizational efforts, the
respondent entered into a short-form closed-shop contract with the
I. B. E. W. on May 17 in order to eliminate the United, and to pre-
clude even the semblance of any further exercise of choice of repre-
sentatives by its employees. Thereafter the necessity for haste was
obviated and the final contract was ultimately signed on June 29.
The respondent's amended answer and the I. B. E. W.'s motion
to intervene allege that prior to the execution of the May 17 contract
the I. B. E: W. had been authorized to represent a majority of the
respondent's production and maintenance workers. We have here-
tofore decided, and the I. B. E. W. has not in this proceeding denied,
that an employer cannot lawfully make a closed-shop contract with
a labor organization, which has attained majority status after receiv-
ing assistance from the employer's unfair labor practices.2
Counsel for the I. B. E. W. urges that it represented a majority
of the employees by May 11 before the respondent rendered it any
assistance. Having thus had the right to make a closed-shop con-
tract with the I. B. E. W. when the latter allegedly obtained a ma-
jority on May 11, the respondent could not, it is argued, be inhibited
from later making such e contract even though unlawful assistance
had occurred in the interim. We have not had occasion to decide the
precise legal question raised by the I. B. E. W., nor is it necessary to
decide that question here for reasons hereinafter stated.
- Specifically, the I. B. E. W. claims that on or before May 10 it was
authorized to represent a majority of the employees. Marquis testi-
fied that 600 employees had applied for membership in the I. B. E. W.
by May 10. The I. B. E. W. introduced in evidence a number of
membership application cards in support of its claim. There are 618
cards in all. It appears from the face of 17 of the cards that the;-
were signed by employees of the Wells-Gardner Company, which so
far as the record shows is not connected with the respondent. De-
ducting these 17 cards introduced by inadvertence, 601 remain. As
stated above, Slora certified to counting 703 cards on May 15. This
discrepancy is not explained in the record. There is no claim that
any cards were lost. Possibly Slora counted the Wells-Gardner and
other cards which should have been excluded. At any rate, there
2 Matter of Lenora Shoe Company, Inc . and United Shoe Workers of America, 4 N. L.
R B. 372. See also , Matter of Mine B Coal Company and Progressive Miners of America,
Local No. 54, 4 N. L. R. B. 316.
DECISIONS AND ORDERS 293
were never more than 601 cards in existence, so far as the record
shows. The cards bear a space for employees to fill in their occupa-
tion. Cards totaling 47 were signed by persons whose duties are super-
visory or clerical. In the absence of special considerations, these per-
sons would be excluded from a unit appropriate for collective bar-
gaining, where, as here, the unit consists largely of mass-production
workers. Most of the cards are undated. Only 44 cards came through
the mails, and they are all postmarked on or after May 13. Thirty-
three were dated before and 11 after May 15, the date of Slora's
certificate.
Subtracting from the 601 cards the 47 signed by clerical and super-
visory employees and the 11 dated after May 15, there remain a total
of 543 as the highest number of valid application cards which could
have been in existence on May 15 when Slora made his count. There
were 962 production and maintenance employees of the respondent
during the week ending May 17. The number required for a bare
majority on May 10 is 482. On April 28, the I. B. E. W. had no-
more than 240 members, according to Marquis. In order to reach a
majority by May 10 the I. B. E. W. must have doubled its member-
ship of April 28. The only definite evidence of any accession of mem-
bers during this period is Marquis' testimony that between May 1 and
May 10 International Association of Machinists relinquished to him
the right to represent 28 employees who had joined that organization.
In addition to these 28, the I. B. E. W. must have gained 214 mem-
bers from April 28 to May 10, if it had even a bare majority on the
latter date. The most that I. B. E. W. could have had on May 15
was 543, as we have seen. If it had a bare majority on May 10, then
it could have gained only 61 members between May 10 and May 15.
Yet it is precisely between May 10 and May 15 that the respondent
furnished the I. B. E. W. with the valuable assistance described
above. Marquis addressed the Independent group on May 11, and
on May 12 held a mass meeting on the respondent's premises. To
believe that routine organizing activity brought the I. B. E. W. 214
members between April 28 and May 10, although the I. B. E. W. had
gained only 240 from the month of January until April 28, and that
the vigorous campaign of May 11-May 15 accounted for only 61
recruits, is to do violence to common sense. We cannot believe that
the I. B. E. W. campaign conducted on the respondent's premises was
so ineffective, or that it was a work of supererogation.
When Daley asked Marquis for proof of a majority on May 11, no
evidence was then forthcoming. Later on the same day Marquis met,
the Independent group, and on May 12 the mass meeting occurred.
On May 15 Marquis furnished Daley with Slora's affidavit. The rea-
294 NATIONAL LABOR RELATIONS BOARD
sonable inference is that on and after May 11 Marquis undertook,
with the respondent's assistance, to enlist a majority of the employees
so as to satisfy Daley's request for proof, and we so find.
In so holding, we credit Slora's affidavit to the extent that it is sup-
ported by membership application cards in evidence. We doubt the
accuracy of Marquis' statement that 600 had joined the I. B. E. W. by
May 10. Marquis had no personal knowledge of most of the cards,
and his testimony purported'to be only an estimate. Thus, he said
he had 800 cards by May 17, and 1,000 by the, time of the hearing.
Yet only 618 application cards of any description are in evidence.
We find that the respondent entered into its contracts of May 17
and June 29, 1937, with the I. B. E. W. after assisting that organiza-
tion by unfair labor practices, and at a time when the I. B. E, W.
was not the free choice of a majo> ity of the respondent's employees,
and that in entering into said contracts the respondent encouraged
membership in the I. B. E. W. and discouraged membership in the
United by discrimination in regard to hire and tenure of employment
and the terms and conditions of employment, and thereby interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
At some time in July 1937, the I. B. E. W. notified the employees
that all would have to join the I. B. E. W. by August 10. It does not
appear that the respondent has enforced the closed-shop provisions
of the contracts, but Daley testified that the respondent intended to
enforce them if requested by the I. B. E. W. to do so. There is no
claim that the employees whose discharges are in issue were dis-
charged pursuant to the closed-shop agreements or that the I. B.
E. W. ever requested the respondent to enforce the agreements
against them.
E. The discharges
Alfred Wittersheim. Alfred Wittersheim worked for the respond-
ent for 31/2 years prior to his discharge on June 18, 1937, and
for the last year of his employment had worked as a tester in De-
partment 136 under Foreman Glen Wilson. Wittersheim joined
the United May 5, 1937, but successively took part in organizing
activity for the Independent, the I. B. E. W., and the United, defi-
nitely going to the last when he became dissatisfied with the terms
of the contract proposed by the I. B. E. W. He acted as a repre-
sentative from his department in all three organizations. When
the Independent petition was circulated on May 10, 1937, Witter-
sheim refused to sign it. He testified that he objected to his fore-
man that the petition was being circulated during working hours,
whereupon Wilson said he knew that Wittersheim was a United
1
DECISIONS AND ORDERS 295
sympathizer and, "We will beat you at your own game." Wilson
denied having any such conversation. Wittersheim was one of sev-
eral hourly paid employees whose working hours were curtailed in
the latter part of May 1937, and who thought that this action
represented a penalty for United activity. Wittersheim claims that
he voiced his objections to Henry Kasper, plant superintendent. Ac-
cording to Wittersheim, Kasper denied that there had been any
-discrimination and stated, "Well, you fellows wanted a union; you
have one now (meaning the I. B. E. W.). Why don't you join the
union?" The regular shift was resumed the day after this conver-
sation, according to Wittersheim. Kasper testified that no such
conversation was ever had. The Trial Examiner, who saw and
heard the witnesses, found Wittersheim's account to be correct, and
we accept his finding.
On June 17, 1937, Wittersheim called a meeting of the employees
in his department and advised them not to return the post-card bal-
lots ratifying the proposed I. B. E. W. contract. On June 18 he
was discharged. Wittersheim says Wilson stated that he had orders
to let Wittersheim go. Wilson denies this and says that Wittersheim
was not discharged but was simply laid off for 1 week, and that
Wittersheim happened to be selected for the lay-off for disciplinary
reasons because he had been guilty of horseplay in the shop.
The respondent's answer makes no reference to any disciplinary
reason for the discharge, nor does Wittersheim's employment record
from the files of the respondent; both documents attribute the lay-
off to "lack of work." Neither the answer nor the employment
record limits the duration of the lay-off to 1 week. At the hearing
the respondent claimed that Wittersheim's lay-off was one of a large
number effected contemporaneously due to slack production. Exami-
nation of the pay-roll changes for that period reveals a number of
lay-offs, but most of such lay-offs related to female employees. Fur-
thermore, Wilson admitted that Wittersheim was the only man laid
off in his department other than McMahon. When Wittersheim was
laid off, the respondent retained one tester who was his junior in
point of service. Since Wittersheim's discharge, the respondent has
hired one tester.
We do not feel that Wilson's denials can be credited. Although
he testified that he took no action with reference to signing and
returning a post-card ballot to the I. B. E. W. when the proposed
contract was voted on, his signed card is among the cards introduced
in evidence by the I. B. E. W. Kasper's attitude toward the alleged
1-week lay-off of Wittersheim is made clear in Kasper's admission
that he refused to discuss Wittersheim's grievance with a United
representative a few days after the lay-off occurred. In view of
296 NATIONAL LABOR RELATIONS BOARD
these facts and also considering the inconsistencies in the reasons
assigned by the respondent for his lay-off, we can only conclude that
Wittersheim was discharged because of his union activities and not
laid off as a disciplinary measure.
Under all the circumstances heretofore reviewed, we find that the
respondent discharged Alfred Wittersheim on June 18, 1937, for
joining and assisting the United.
Edward J. Phelan. Edward J. Phelan had worked for the respond-
ent for about 7 years prior to his discharge on June 11, 1937, and was
most recently employed as receiving clerk in the shipping room.
Phelan refused to sign the Independent petition when it was cir-
culated and never did join the I. B. E. W. He joined the United in
the middle or latter part of May 1937, and took an active part in
that organization. On June 10, at a United organization meeting,
Phelan was chosen a member of a temporary organizing committee
and made a speech in favor of the United and against the I. B. E. W.
On the next day Hamer, foreman of the shipping room, told Phelan
that he was to be laid off. Phelan, with some profanity, uttered his
suspicion that his lay-off was due to his United sympathies and Hamer
thereupon discharged him, allegedly for insubordination. Phelan tes-
tified that Hamer said, "I got orders to let you go." Hamer denied
making this statement, but Kasper, the plant superintendent admitted
that he had discussed Phelan's proposed lay-off with Hamer. It
seems likely that Kasper had ordered Hamer to lay off Phelan.
The respondent asserts that Phelan's original lay-off was part of a
general reduction in force owing to decreased production. However,
the respondent laid off only Phelan in his department and in laying
him off preferred to retain one Van Lewren, a young man who was
Phelan's junior in service and who had previously done only part-
time work in the shipping department. Hamer testified that Phelan
was incapable of doing the work done by Van Lewren, but admitted
that Van Lewren had since been transferred to another department
and had been replaced by one Herman, and that Phelan could have
done the work Herman was doing.
We do not regard Phelan's discharge on the day after his anti-
I. B. E. W. speech and his appointment as an employee organizer for
the United as merely coincidental. This explanation is particularly
implausible in view of Phelan's record of 7 years of satisfactory
service and the fact that after a 'short period he was admittedly
replaced by a man with no better qualifications.
We find that Edward J. Phelan was discharged by the respondent
on June 11, 1937, for joining and assisting the United. Phelan earned
$308.72 between the date of his discharge and the time of the hearing.
DECISIONS AND OItDEItS 297
Nikols Franzen. Nikols Franzen was discharged on June 11, 1937,
the date of Phelan's discharge, after working for the respondent about
4 years, recently at common labor. Like Phelan, Franzen was chosen
a temporary committeeman for the United at its June 10 meeting and
spoke in favor of the United and against the I. B. E. W. Franzen
testified that prior to his discharge John Chrabot, his foreman, once
said to him, referring to the I. B. E. W., "What is the matter with
you, Nick? Why don't you join?" Franzen stated that he replied
that he did not like that organization, whereupon Chrabot said, "You
might find yourself out of work." Franzen also testified that on
June 11 Chrabot said, "I have orders to lay you off." Chrabot denied
making the statements attributed to him by Franzen. The Trial
Examiner found in accordance with Franzen's testimony, and we are
disposed to accept this finding. Kasper admitted that he had dis-
cussed Franzen's case with Chrabot before the discharge-took place.
Franzen stated that at the time of his lay-off there was plenty of
work to be done in his department despite the respondent's claim that
his lay-off was due to slack production.
The respondent asserts that it selected Franzen for a lay-off as part
of its reduction in force because Franzen was illiterate and consti-
tuted a hazard to his fellow employees by reason of his inability to
read danger signs. There is evidence that about 7 months prior to
FFranzen's discharge he started up a conveyor and endangered the
safety of other employees through his failure to comprehend a warn-
ing notice. It appears that after this occurrence, Franzen was trans-
ferred to another operation. There was no showing that after this
transfer, Franzen's illiteracy constituted any safety hazard. Exami-
nation of Chrabot concerning Franzen's discharge elicited the follow-
ing significant reply :
Q. It was not till seven months later that you decided that was
a good reason for laying him off ?
A. (By Chrabot) It wasn't until seven months later we got
told.
The respondent's suddenly conceived safety measure is, under the
circumstances unpersuasive, since the respondent retained Franzen for
7 months after a specific act of negligence and then proceeded to dis-
charge him for the alleged deficiency, on the day after he was selected
as a temporary committeeman for the United. We conclude that his
discharge was directly attributable to his United activities and not to
his illiteracy. Accordingly we find that the respondent discharged
Nikols Franzen on June 11, 1937, for joining and assisting the United.
Franzen earned only $3.50 between the date of his discharge and the
time of the hearing.
298 NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce