Leach Co.

National Labor Relations Board - Board Decisions

Apr 20, 1940

22 N.L.R.B. 1168 (N.L.R.B. 1940)

In the Matter of LEACH COMPANY and INTERNATIONAL UNION, UNITED
AUTOMOBILE WORKERS OF AMERICA, LOCAL No. 291 (CIO)
Case No. 0-1311.-Decided April 20, 1940
Truck Body, Concrete Mixer, and Tool Manufacturing Industry-Interference,
Restraint, and Coercion: anti-union statements : deprecating the need for a union
among its employees ; depreciating the ability of the Union to secure gains for
its employees ; disparaging the national organization, with which the Union is
affiliated ; expressing its antipathy to unions; informing its employees that it
would not deal with the Union but would deal with them individually ; individ-
ual bargaining in disregard of negotiations with Union ; circulation of anti-union
petition on company property; refusing to deal with the Union because its agent
had prevailed upon a majority of the employees to sign said anti-union petition-
Di-scrimination: with respect to hire and tenure of employment: discharges for
union membership and activity ; charges of, dismissed as to four employees-
Reinstatement Ordered: for employees discriminatorily discharged-Back Pay:
awarded to discharged employees.
Mr. William R. Consedine, for the Board.
Boucle, Hilton, Klwwin c r Dempsey, by Mr. Ray C. Dempsey, of
Oshkosh, Wis., for the respondent.
Mr. John C. McRee, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
'Upon charges and amended charges duly filed by the United Auto-
mobile Workers of America, Local No. 291, herein called the Union,
the National Labor Relations Board, herein called the Board, by the
Acting Regional Director for the Twelfth Region (Milwaukee, Wis-
consin), issued its complaint dated February 14, 1939, against Leach
Company, Oshkosh, Wisconsin, 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 notice of hear-
ing were duly served on the respondent and the Union.
22 N. L. R. B., No. 100.
1168
LEACH COMPANY 1169
In respect to the unfair labor practices, the complaint alleged in
substance (1) that during the months of December 1937 and February
1938 the respondent discharged twelve named persons employed in its
plant at Oshkosh, Wisconsin, because of their membership in and ac-
tivities on behalf of the Union,' thereby discriminating in regard to
the hire and tenure of employment of said persons and discouraging
membership in a labor organization; and (2) that by these and other
means, including threats, warnings, and acts in violation of a written
contract with the Union, it interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed by Section 7 of the
Act. On March 2, 1939, the respondent filed its answer, denying that
it had engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held at Oshkosh, Wisconsin, from
March 6, through 20, 1939, before Gustaf B. Erickson, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to produce evidence bearing upon the issues was afforded all
parties. During the course of the hearing counsel for the Board
moved that the complaint be dismissed as to Frank Ruechel. At the
conclusion of the hearing counsel for the Board made a motion to
conform the pleadings to the proof. Both motions were granted by
the Trial Examiner. During the course of the hearing the Trial
Examiner made numerous other rulings on motions and objections to
the admission of evidence. The Board has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
On April 11, 1939, the respondent filed a brief with the Trial
Examiner. On June 13, 1939, the Trial Examiner issued his Inter-
mediate Report, copies of which were duly served upon all parties,
finding 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 Act. He
recommended that the respondent cease and desist from engaging in
unfair labor practices and that it reinstate 11 employees with
back pay.
On June 26, 1939, the respondent filed exceptions to the Inter-
mediate Report. The Board has reviewed the exceptions to the
Intermediate Report and, in so far as they are inconsistent with the
findings, conclusions, and order set forth below, finds them to be
without merit.
"The names of these employees are as follows : Frank C Buechel, Clarence Frihart, Carl
F. Dreyer, Earl E Luker, Frank Curd, William Foust, Henry Millard, Robert Millard,
Eugene Hetzel , William Beson , Frank C. Klosterman, Jr , and Leo C. Miller
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Wisconsin corporation with its principal place
of business and plant at Oshkosh, Wisconsin, is engaged in the manu-
facture, sale, and distribution of logging tools, concrete mixers, gar-
bage or refuse getters, reels, poleline tools, and ladders. The chief
raw materials used by the respondent are wood, cast iron, and steel.
During the year 1938 it used raw materials valued at over $100,000,
more than 80 per cent of which were shipped to it from States other
than Wisconsin. During the year 1938 the respondent's products
were valued at approximately $370,000, approximately 95 per cent of
which were shipped to States other than Wisconsin.
The respondent admits that it is engaged in interstate commerce
and is subject to the provisions of the Act.
II. THE ORGANIZATION INVOLVED
United Automobile Workers of America, Local No. 291, is a labor
organization admitting to membership persons employed at the re-
spondent's plant. It is affiliated with the International Union, United
Automobile Workers of America, an affiliate of the Congress of
Industrial Organizations.
III. THE UNFAIR LABOR PRACTICES
A. Background; interference, restraint, and coercion
Prior to the establishment of .the Union among the respondent's
employees, E. C. Leach, the respondent's president, expressed him-
self as being opposed to the formation of a union among his em-
ployees. In November 1936 Leach conversed with Frank Ruechel, an
employee in the shipping department, concerning the strikes which
were then, current throughout the country and their effect on busi-
ness in general. Leach stated that there had been a union in his plant
at one time but that he had broken it up and that if the men ever
organized again he "would break it up like he did the last time."
Leach denied having made these remarks to Ruechel. The Trial
Examiner, who observed the demeanor of the witnesses, did not
credit Leach's denial. We find that Leach made the remarks
attributed to him by Ruechel.
Leach also expressed his views on labor organization to Fred
0. Kile in the spring of 1937 when there were, strikes in other plants
in the vicinity. Leach inquired of Kile, who was superintendent
LEACH COMPANY 1171
from 1930 until May 1937, whether he had heard of any organiza-
tional activity among the respondent's employees and told him that
he did not think there should be any organization in the. plant as
he did not care to have any dealings with a union. Kile testified
at the hearing that Leach appeared to be agitated about the matter
and during the conversation stated that there would not be any
union in the plant. Leach admitted at the hearing that he had
asked Kile whether he had heard of any organizational activity
and did not deny making the above statements attributed to him
by Kile. We find that he made them.
About May 1, 1937, William Foust, Frank Curd, Henry Millard,
and Robert Millard, who were all employed in the machine shop, dis-
cussed the formation of a union among the respondent's employees.
Curd communicated with the president of the Union and was told
that the respondent's employees were eligible for membership therein
and that they would be welcome at a meeting to be held on May 5.
At this meeting and at a meeting on May 10 approximately 93 of
the respondent's 96 employees signed applications, for membership in
the Union. On May 10 the following employees were elected to
serve on the bargaining committee : Frank Curd, Carl Dreyer, Earl
E. Luker, Harold Schabloski, Henry Koch, Gordon Malouf, William
Beson, and William Foust, chairman. This committee presented the
Union's demands to the management on May 11 and began negotia-
tions on May 13, at which time the respondent presented a counter-
proposal. During the conference on May 13 Leach asked why the
employees had to join an organization to talk to him. He explained
that the doors of his office were always open to his employees, that
he had always dealt fairly with therh and' saw no reason for an
organization. These statements were not denied by Leach.
At a meeting on the night of May 13 the Union rejected the re-
spondent's counterproposal and threatened to strike if the respond-
ent would not make a better offer. On May 17, after two further
meetings, and after informing the respondent of the strike vote, the
employees went on strike because the respondent would not meet the
Union's demands.
On June 17, at a conference with the bargaining committee, Leach
asked the members of the committee if they had seen the morning
paper and had read what Tom Girdler had done to the C. I. O.
When the committee replied that they had not read the paper, Leach
said that the C. I. O. were a bunch of Communists. Beson, a mem-
ber of the committee, then asked if Leach was through dealing with
the C. I. 0., and Leach replied that he was. Beson then inquired if
Leach would deal with the employees if they belonged to the A. F.
of L Leach answeredthat it did not make any difference whether
the employees belonged to the C. I. O. or the A. F. of L., or any
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other union ; that he would deal with his employees individually as
he had always done. Although Leach denied making the foregoing
statements, the Trial Examiner , who, from his observation of the
demeanor of the witnesses , had an opportunity to form a trustworthy
opinion as to their credibility , found that such statements were made
by Leach. The subsequent actions of Leach in destroying the Union
further convince us, and we find , that he made the statements recited
above.
During the strike Leach had his cost analyst and office manager,
Robert Baker, call on Frank Ruechel , a member of the union bar-
gaining committee , in an attempt to arrange a meeting between
Leach and Ruechel, or between Leach and one or two members of
the bargaining committee . Ruechel testified that when he refused to
talk with Leach alone , or unless the other committee members were
present, Baker asked him why he wanted a union in the plant. Baker
also stated, according to Ruechel, that Leach desired to deal with
the employees individually and that they would be more successful
as individuals than they would be if they bargained through a union;
that Leach did not want to have anything to do with unions. Baker
admitted going to see Ruechel after Leach had said he wanted to get
in touch with some of the members of the committee but denied ask-
ing Ruechel why he wanted a union. We find, as did the Trial Ex-
aminer, that Baker made the foregoing statements substantially as
related by Ruechel.
The desire of the respondent to deal with individual employees
rather than with the Union was further demonstrated during the
strike when Leach, in the company of John Spanbauer , a foreman,
went to the home of Harold Schabloski , another member of the
union bargaining committee, anc asked him why the old employees
had turned against him ( Leach ) and joined in the strike. When
questioned by counsel for the Board as to why he called on Scha-
bloski Leach testified as follows :
Q. Now, as a matter of fact, you went down to see Mr.
Schabloski about getting some kind of a settlement of the strike,
did you not?
A. Well, I wanted to find out what the trouble was because
nobody seemed to know.
Following Baker's request , Ruechel arranged for five members of
the union bargaining committee to meet with Leach. At the meeting
they were given a letter addressed to the chairman of the committee
withdrawing an offer of a 10-per cent increase in wages which the
respondent had previously made as a counterproposal to the Union's
demands. Leach then explained that he was mailing to each em-
ployee a copy of another letter which stated that the prior offer of a
. LEACH COMPANY 1173
10-per cent wage increase had been withdrawn, but which showed
the new wage rate the employee receiving the letter would receive.
The letter also advised that this was the respondent's final offer.
Through the efforts of Harry Sheck, a Federal conciliator, negotia-
tions between the respondent and the Union were renewed. On July
21, 1937, the parties entered into a signed contract and the strike
was settled. The contract provided, among other things, for recog-
nition of the Union as the sole bargaining agency, for seniority in
lay-offs and rehiring, and for the establishment of a grievance pro-
cedure which placed the ultimate decision on a disputed grievance
in the hands of an arbitrator. The contract was to continue in effect
only until February 1, 1938, unless prior to that it was extended or
renewed.
After the resumption cf operations, the Union's shop committee
first met with the respondent on August 25. Monthly meetings were
held thereafter. At each meeting the shop committee, after present-
ing its grievances, asked Leach if he had -any grievances or com-
plaints. Leach never raised any problems with the Committee.
In December 1937 and January 1938 the respondent made exten-
sive lay-offs, the number of employees being reduced from approxi-
mately 96 to 44 by the middle of January. Most of the active
members of the Union were included in the group laid off. The
cases of eleven of them will be discussed in detail below.
During the early part of January 1938 Fred Frandsen, foreman
of the shipping department circulated in the plant a petition to the
effect that the employees were dissatisfied with the hours and other
working conditions which were in effect by reason of the respond-
ent's contract with the Union. The petition asked the respondent
to deal with the employees as a group independently of the Union.
On January 24 the petition, which was signed by 39 of the 44 em-
ployees who were working at the time, was presented to Leach.
On January 26 the Union, represented by a committee of three,
approached the respondent to discuss the renewal of its contract
which, unless renewed, was to expire on February 1. The respondent
refused to discuss this matter, claiming that, in view of the petition,
the Union no longer represented a majority of its employees.
Conclusions as to interference, restraint, and coercion
We find that the respondent, by deprecating the need for a union
among its employees, by depreciating the ability of a union to secure
any gains for its employees, by disparaging the C. I. 0., with which
the Union is affiliated, by expressing its antipathy to unions, by
informing its employees that it would not deal with a union but
would deal with them individually, by attempting to deal with its
233033-41-v,J1 22-75
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees individually in preference to their duly authorized rep-
resentatives, by permitting its agent, Frandsen, to circulate a peti-
tion in opposition to the Union in the plant, and by refusing to deal
with the Union because its agent had prevailed upon a majority of
its employees to sign said petition, has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. Discrimination in regard to hire and tenure of employment
The complaint alleged that the respondent, in the period between
December 3, 1937, and February 23, 1938, discharged or laid off
Frank C. Ruechel, Clarence Frihart, Carl F. Dreyer, Earl E. Luker,
Frank Curd, William Foust, Henry Millard, Robert Millard, Eugene
Hetzel, William Beson, Frank C. Klosterman, Jr., and Leo C. Miller,
and has since refused to reinstate them, because of their membership
in, and activities on behalf of, the Union. The respondent admitted
that it discharged or laid off said employees; but denied that it was
because of their union membership or activities. At the hearing,
the complaint was dismissed, on motion of counsel for the Board,
with respect to Frank C. Ruechel. In his Intermediate Report the
Trial Examiner found that the remaining 11 employees had been
laid off or discharged because of their union membership and activi-
ties. The respondent excepted to these findings.
The respondent contends that after the strike production slowed
down and labor costs rose, particularly in the machine shop ; that
upon investigation it was reported by the superintendent and the
various foremen in the machine shop that the slow-down was caused
by the refusal of the employees to cooperate; that in December when
production was slack and many of the employees had been laid off it
reexamined its personnel with a view to eliminating the offending
employees ; and that, as a result, most of the complainants in this
proceeding were not recalled.
E. C. Leach, the respondent's president, and Ewold Hoeft, the
production manager, testified that production costs rose in the ma-
chine shop in the fall of 1937. Leach testified, on the basis of the
respondent's records, that the labor cost to produce bucket arms for
refuse gatherers almost doubled between July and December 1937.
Hoeft testified that there was an increase in labor costs in the ma-
chine shop generally. He identified a list, compiled from the re-
spondent's records, which showed the lowest and highest cost of
producing certain articles before the strike, and the lowest and
highest cost of producing identical articles following the strike.
This list tends to show that production costs rose after the strike.
Certain facts must be noted, however, in connection with the list.
LEACH COMPANY 1175
In the first place, Hoeft explained that the list did not include all
items produced by the respondent and that some articles were pro-
duced at lower costs after the strike than they were before. Second,
the list does not show the average cost before the strike of the
articles listed as compared with their average cost after the strike,
but only shows the cost of a particular order of the articles listed.
Third, the cost figures are computed by adding the cost of materials,
the cost of labor, and overhead. When questioned as to whether
there was any change in the cost of materials, Hoeft replied, "Noth-
ing more than the usual changes in prices which come up." As to
labor costs, it is undisputed that the contract between the respondent
and the Union provided for wage increases ranging from 10 to 20
per cent. Hoeft testified, however, that the labor costs were higher
than the wage increase justified. As to overhead, Hoeft testified it
was figured the same way before and after the strike, at 200 per
cent of the labor cost. Since no figures were given as to total pro-
duction before and after the strike, the actual overhead costs
attributable to the various articles produced cannot be accurately
ascertained. Obviously, an increase in production might result in
increased labor costs per unit, but might also substantially reduce the
overhead cost per unit.
In view of all of the evidence it may well be that the respond-
ent's labor costs increased after the strike. We are not convinced,
however, that this was as serious a problem as the respondent would
have us believe, or that there is any correlation between the increase
in costs and the strike, other than the increase in wages provided
for in the contract signed at the termination of the strike.
Superintendent Lisek and Hoeft testified that when they became
aware of the increased costs they talked to Pfeil, Gibson, and Robl,
who served successively as foremen of the machine shop after the
strike, and learned that the difficulty was that the men were not
cooperating. Pfeil, Gibson, and Robl testified to the same effect.
In particular, they testified that certain named individuals, members
of the Union, would not cooperate. The basis of Pfeil's conclusion
that the men did not cooperate was, for the most part, the further
conclusion that they did not work as fast as they could have. The
following colloquy between Pfeil and counsel for the Board is
enlightening :
Q. Now, what in particular did you have to call to Mr. Curd's
attention ?
A. It would take him too long to bore the pumps out.
Q. That was sometime in the summer of 1937?
A. I wasn't foreman in the summer.
1176 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. When were you foreman?
A. Well, the last part of the summer I was.
Q. Was that in the summer of 1937 that you brought that to
his attention?
A. Yes. They were complaining on account of the cost of the
pumps being too high.
Q. What did you do about that?
A. I asked him if he would speed his machine up a little.
Q. What did he say? -
A. He said his tool wouldn't stand up.
Q. Oh, there was some difficulty with the tool?
A. That's what he claimed.
Q. Did you, as foreman, investigate to see if that was true?
A. No, sir.
Q. You just took his word for it?
A. Yes, sir.
Q. Do you know whether or not there was some difficulty with
the tool?
A. I didn't see it.
Q. Oh, you don't know?
A. No, sir.
Q. That is the only reason you say those fellows were uncoop-
erative?
A. They didn't work fast enough.
Much of the testimony with respect to the uncooperative character
of the employees was stated as conclusions. In so far as it is based
on more specific testimony it w ill be considered below.
On the whole we do not think the respondent's employees were un-
cooperative. Commencing on August 25, and monthly thereafter, the
shop committee of the Union, which represented all of the employees,
met with Leach. At each meeting the shop committee asked Leach
if he had any grievances or complaints. Each time Leach said that
he had none. On one occasion "he said lie takes care of things as they
come up." On another occasion when "he was asked if he had any
complaints, or if there was something we [the shop committee] could
do to promote a better feeling between the employer and the em-
ployees," he replied, "that he was still running the business and that
he would take care of things when they came up." We find no sub-
stantial merit in the respondent's contention that its employees were
uncooperative.
Nor do we believe that the alleged lack of cooperation by the em-
ployees was responsible for any increase in production costs. This
conclusion is in part based upon the unconvincing character of the
testimony relating to the lack of cooperation. It is independently
LEACH COMPANY 1177
justified by other facts. After the strike the respondent employed a
new superintendent. It also employed a new foreman, Pfeil, in the
machine shop, where most of its difficulties arose. Pfeil was replaced
after about 6 weeks by Gibson, who was in turn replaced by Robl
about 8 weeks later. We think that the change in supervisory per-
sonnel may well have been responsible for increased production costs.
After the strike the respondent had a larger volume of business than
usual. The record does not show how it compared with the volume of
work befoie the strike, but approximately 95 employees were working
as compared with the usual force of 60 to 75 employees. It is not
unnatural for production costs to have risen in the course of handling
a large volume of work, especially since the workweek had been re-
duced from 50 to 45 hours under the contract with the Union.
In addition to the general defenses discussed above, the respondent
advanced other reasons, applicable only to individual employees, for
the lay-off or discharge of the complainants herein. Bearing in mind
the respondent's general defenses, we turn to a consideration of the
circumstances surrounding the lay-off or discharge of each of the
11 employees involved.
William Foust and Frank Curd. William Foust was employed
by the respondent on March 17, 1934, at which time he had had 16
years of experience as a machinist. He worked in the machine shop
until he was laid off on December 17, 1937. As stated above, Foust
was one of the four employees who were responsible for the organi-
zation of the Union among the respondent's employees. On May
10, 1937, he was elected chairman of the bargaining committee.
Thereafter he met with the respondent's officials in that capacity on
various occasions.
Frank Curd was first employed by the respondent in January
1935. He worked as a machinist until he quit in March 1936. He
was reemployed as a machinist on April 26, 1937, and worked until
he was laid off on December 17, 1937. As mentioned above, Curd
was another of the four employees who started the organization of the
Union. He served on the grievance committee from May 10, 1937,
until he was laid off.
At the time Foust and Curd were laid off several other employees
with less seniority were retained in the machine shop. The respond-
ent's contract with the Union provided, inter alia, "Those last hired
shall be the first to be laid off and those last laid off shall be the first
to be re-hired."
Foreman Robl told both Foust and Curd when they were laid off
on December 17, 1937, that they would be recalled as soon as work
was available. As was customary in cases of temporary lay-offs, both
men left their tools in the machine shop. During the first part of
January 1938 Foust discovered that Krause, an employee with less
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seniority than himself, was working in the machine shop. Foust
inquired of Robl why Krause was working and he was not. Robl
replied that Krause was a valve specialist and was working on some
valves. Foust testified that while employed in the shop he had made
most of the valves. Robl also told Foust that he would be recalled
when work was available. On February 1, 1938, however, the day
the Union's contract with the respondent expired, Superintendent
Lisek had Robl send the tools Curd and Foust had left in the shop
to their homes by taxicab.
At the hearing the respondent claimed that about January 1, 1938,
it was discovered that Curd and Foust had spoiled 18 out of 50 pump
covers on which they had performed certain operations in November,
and for this reason they were not reinstated. The labor cost in
salvaging the pump covers was $16.07. Their machines were checked
by Robl and Pfeil, a machinist and ex-foreman of the machine shop,
at the time the spoilage was discovered. These two men testified
that the defective work was caused by a dowel pin whicli had been
filed down on one side, and which should have been observed and
removed by Curd and Foust.
Foust testified that when he, was working on the pump covers he
discovered that some were defective in that the holes in which the
dowel pins were to be inserted were too large; that the defective holes
were called to Robl's attention and that Robl, Pfeil, and Leo Miller,
another machinist, examined the castings and instructed him how to
machine them. Curd testified that he found a note on his machine
from Foust explaining the difficulty and how he was to proceed, and
that subsequently Robl came to his machine and told him how to ma-
chine the defective pump covers. Both Curd and Foiist testified that
they followed the instructions given by Robl. This explanation was
contradicted by Robl and Pfeil. Although Leo Miller was called as
a witness by the counsel for the Board, he was not questioned con-
cerning the pump covers. We do not find that Foust and Curd were
blameless in spoiling the pump covers. We are persuaded, however,
that their work on the pump covers was not the actual reason for their
discharge.
The respondent's answer, filed on March 2, 1939, denied that each
employee named in the complaint had been discharged for union
activity, and alleged (1) that the discharges of Ruechel, Frihart, and
Miller were caused solely by negligence and inefficiency; (2) that
Dreyer and Luker were laid off "in the interest of efficiency and
economy" and because they refused to complete work and carry out
orders; and. (3) "That the same facts are true of the complainants
Frank Curd, William Foust, Henry Millard, Robert Millard, Eugene
Hetzel, William Beson and Frank C. Klosterman." It is clear that
the respondent did not feel at the time it prepared its sworn answer
LEACH COMPANY 1179
that Curd and Foust, among others, were guilty of acts of negligence
and inefficiency which justified their discharge or the respondent's
refusal to reinstate them. The respondent's claim concerning the
spoilage of the pump covers is clearly an afterthought.
The respondent contends, further, that Curd was not returned to
work because he was frequently away from his work, was reluctant
to take orders from his superiors, and had spoiled another job in
addition to the pump covers. The respondent asserts, as an addi-
tional reason for not reinstating Foust, that he was uncooperative.'
The record does not support the respondent's contentions with re-
spect to either Foust or Curd. Moreover, these criticisms of Foust
and Curd, with the exception of the spoilage on the part of Curd, were
all based on their work prior to the time that they were laid off,
yet at that time neither was criticized and both were told that they
would be recalled as soon as work was available. On the basis of the
entire record we find that the respondent did not lay off or refuse
to reinstate Foust or Curd for the reasons it asserts.
We find that the respondent discharged Curd and Foust on Decem-
ber 17, and did not at that time intend to reinstate them. Although
the respondent claims that the pump covers were not discovered until
January 1, as mentioned above, the tools which these amen had left in
the shop were not returned to them at that time, but were returned
only after the Union's contract expired on February 1. Such action
on the part of the respondent convinces us that the respondent was
determined to rid its plant of the active union members before it was
time to negotiate another contract with the Union. To prevent the
union members so discharged from exercising their rights under the
contract, which provided for arbitration of disputed grievances, the
respondent told them that they were being temporarily laid off and
would be reinstated as soon as their services were needed. Foust's
long record of satisfactory service prior to the strike, ' which was
admitted by the respondent at the hearing, supports our conclusion
that his discharge, as well as that of Curd, was caused by his union
activity.
2 In its brief to the Trial Examiner , the respondent stated "Our position on Mr Foust
is that above all else his conduct on rebuttal and the testimony he gave warrants his dis-
charge from the employ of Leach Company regardless of his Union affiliations or his length
of service with the company" Fiom the brief it is apparent that the respondent adopted
this position because it considered Foust ' s testimony with respect to the pump covers to be
a "fabrication " While we have found that Foust was not blameless in the production of
the faulty pump covers, we find nothing in his testimony which indicates that it was
knowingly false , or that it was even inaccurate The Trial Examiner , who, from his
observation of the demeanor of the witnesses, had an opportunity to form a trustworthy
opinion as to their credibility, credited the testimony of Foust and rejected that of the
respondent ' s witnesses on this point It should be noted , moreoser. that Section 8 (4) of
the Act declares that it is an unfair labor practice for an employer "to discharge or other-
wise discriminate against an employee because he has . . . given testimony under this
Act."
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the respondent discharged William Foust and Frank
Curd on December 17, 193,7, and thereafter refused to reinstate them,
because of their union membership and activities , thereby discourag-
ing membership in the Union, and by such acts has interfered with,
restrained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Curd has had some temporary employment and has worked on
W. P. A. since he was discharged . He desires reinstatement. Foust
has had no regular employment since he was discharged . He desires
reinstatement.
Henry Millard, and Robert Millard. Henry Millard was hired by
the respondent as a machinist on April 26 , 1937. Prior to that time
he had served a 4-year apprenticeship in railroad shops in Chicago
and had followed his trade for 3 years . While working for the
respondent there were no complaints about his work and he continued
in his regular employ until he was laid off on December 17, 1937.
Robert Millard had served an apprenticeship of 4 years in the rail-
road shops in Chicago and had followed the machinists ' trade for a
few months prior to his employment by the respondent on April 26,
1937 . He testified that he told his superintendent when he was hired
that he had had very little experience and did not hold himself out
as a skilled machinist . This was not denied by the respondent.
Robert Millard was also laid off on December 17, 1937.
As mentioned above, the Millards were two of the four employees
who started the organization of the Union among the respondent's
employees. They came out on strike and were active on the picket
line.
The Millards were laid off on December 17, 1937, together with
Foust and Curd, the other two instigators of organization for the
respondent 's employees . When the Millards were laid off Robl told
them that they would be recalled as soon as work picked up. On the
same afternoon Robl told Henry Millard and Krause, another ma-
chinist, "I had hoped you two boys would come back because it is a
hard job bringing in new men." Neither of the Millards was recalled
to work although work was available. The record does not show
whether or not the Millards left their tools in the shop as did Foust
and Curd.
The respondent contends that the Millards were not reinstated
because they were not competent machinists . In support of this con-
tention it introduced a number of time cards showing that Henry
Millard required more time to perform certain operations than other
employees, and that on one occasion his time for performing an
operation in October was much shorter than required on the same
operation in December . The cards represent work done by a ma-
chinist on a particular job and do not reflect the circumstances which
LEACH COMPANY 1181
were existing at the time the job was done. Henry Millard testified
that often additional time was required on a job since the time re-
quired by the machinist to get his materials or blueprint varied, and
further, that no credit was revealed on the time card for a partially
completed job.
Although these cards show that Henry Millard was slower on
particular jobs than other employees, we are not satisfied that they
afford a true reflection of the speed of his work. A machinist might
require considerable time to perform a certain operation on one
occasion due to unusual circumstances and on other occasions per-'
form the same job without requiring excessive time. It should be
noted, moreover, that one of Henry Millard's cards is dated in July
and others are dated in October and November, while Millard con-
tinued to work until he was laid off on December 17. Although the
respondent undoubtedly knew of these instances on December 17, Mil-
lard was not criticized at the time he was laid off or told that he was
being discharged.
Rohl claimed that when discussing the men in the machine shop
with Superintendent Lisek about the last of December 1937, he did
not ask that the Millards be recalled because, although he had told
the Millards that they would be recalled, he did not classify either
of them as skilled machinists and thought that he could get better
men.
Everett Gibson testified that Henry Millard was slow and required
help on most of his jobs. He testified that Robert Millard was slow
but could be depended upon to turn out his work after the foreman
had shown him what to do.
No time cards were introduced concerning Robert Millard. The
record does not show whether Robert Millard was paid the same
wage as a skilled machinist and, except for the slowness which would
be expected of a man of limited experience, we find that he performed
his duties satisfactorily.
As with Foust and Curd, we find that the respondent discharged
the Millards on December 17, 1937, and did not at that time intend
to recall them. The fact that Robl, on December 17, told them that
they would be recalled does not negative the respondent's discrimina-
tory intent, since we find that such statements were made in order
to lull the men's suspicions and prevent them from exercising their
rights under the contract between the respondent and the Union.
Although the record does not show that the respondent returned
tools to the Millards after the contract expired on February 1, as it
had in the cases of Foust and Curd, the respondent nonetheless
prevented the Millards from exercising their rights under the con-
tract by refraining from informing them that they were discharged
until after the contract expired. We find that the Millards' dis-
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charges were part of the respondent's plan to rid its plant of the
active members of the Union before it was time to negotiate another
contract with the Union. The deficiencies in the work of the Mil-
lards, if any, existed for a considerable period prior to the time that
they were laid off, yet their employment continued until December 17,
when they were laid off without criticism and informed that they
would be recalled. The Millards were not discharged because of the
alleged deficiencies in their work.
On the basis of the entire record we find that the respondent dis-
charged Henry Millard and Robert Millard on December 17, 1937,
and has since refused to reinstate them, because of their union mem-
bership and activities, thereby discouraging membership in the
Union. We also find that by such acts the respondent has interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
Henry Millard has had no work other than on W. P. A. since his
discharge. He desires reinstatement. Robert Millard secured tem-
porary employment with the Central Wisconsin Canning Company
after his discharge, and later worked on W. P. A. He desires rein-
statement.
Clarence Frihart. Frihart worked for the respondent in the black-
smith shop in 1923 and 1924 until he voluntarily terminated his em-
ployment. He returned in 1926 as a machinist, but quit again in the
summer of 1928. He worked approximately 2 weeks in the blacksmith
shop while on vacation from another job in 1934. On February 26,
1937, he was reemployed as a machinist and continued to work in that
capacity until he was discharged on December 3, 1937.
Frihart joined the Union on May 6, 1937, and remained an active
member until his discharge. In the fall of 1937 Frihart talked to
Baker, the office manager, concerning his claim for overtime under
the Walsh-Healy Act. This discussion eventually led to all employees
in the machine shop receiving retroactive pay for work performed on
Government contracts.
On December 3 Foreman Robl discovered that a set of rollers on
which Frihart had performed certain operations had been spoiled.
Superintendent Lisek told Frihart he was discharged. Frihart asked
to see the work slip which had been attached to the spoiled rollers.
The work slip was identical with Frihart's time card.
Frihart testified that he had performed certain operations on a set
of 24 rollers in November; that another machinist, Seidel, had per-
formed the same operations on an identical set of rollers; and that
both sets had remained on one truck in the machine shop until the
spoilage was discovered on December 5. Frihart claimed that the
work slips could have been inadvertently changed on the two sets of
rollers. Foreman Robl testified, however, that he was positive Frihart
LEACH COMPANY 1183
had been responsible for the spoilage. While the record is not clear,
it appears that Frihart performed the operations in question on both
sets of rollers, although Seidel did some work on one of the sets.
Frihart claimed that Robl told him, on the day of his discharge,
that he had orders from the office "to get something on you so as to
get rid of you." This statement was denied by Robl. Robl's oppo-
sition to the Union, as evidenced by his statements to Leo Miller which
will be related below, and by his testimony at the hearing, do not
indicate that he would have made such a statement to a union member
he was discharging and whom he had only known for a few months.
rhis conclusion is buttressed by other evidence. Gibson, a fellow
machinist and ex-foreman, testified that Frihart told him on December
3 that he was being discharged for spoiling the rollers. This conver-
sation was not denied by Frihart. We find that Robl did not make
the statement attributed to him by Frihart which is recited above.
The contract which the respondent had signed with the Union pro-
vides that if a discharged employee believes he has been unjustly dealt
with, his complaint will be treated as a grievance and handled by the
shop committee and the company. "Failing to settle in this manner,
then it shall be by conference between the International Organization
and the company; and thereafter failing a settlement, the matter will
be referred to the local Regional Director of the National Labor Rela-
tions Board, whose decision shall be final and binding upon both
parties." As this contract was in full force and effect at the time of
Frihart's discharge, his failure to submit his discharge as a complaint
to be handled under the procedure outlined above, is strong evidence,
we believe, that Frihart thought that he had been discharged because
he had spoiled the rollers in question and not because of his union
membership and activities.
We find that Frihart was discharged for reasons other than his
union membership and activity. We shall dismiss the complaint as
to him.
Carl F. Dreyer and Earl E. Luker. Dreyer was employed as a
painter in the year 1934, and was employed steadily from that time
until he was laid off on December 3, 1937. He was recalled on De-
cember 11, 1937, for approximately 20 hours of work. He joined the
Union about May 10, 1937, and was elected shop steward.
Luker worked for the respondent on three occasions prior to 1936,
and each time voluntarily left its employ. He was reemployed about
February 12, 1936, as a painter and worked in that capacity until he
was laid off on December 3, 1937. He was recalled on December 11,
along with Dreyer, and received about 20 hours' work before he was
laid off on December 13, 1937. He joined the Union about May 6,
1937, and was elected a member of the bargaining committee, in which
capacity he served until he was laid off.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As mentioned above, the respondent's answer alleges that these two
men were discharged in the interest of efficiency and economy. In
addition, at the hearing there was considerable testimony offered by
the respondent to show that Dreyer was guilty of insubordination, that
he refused to take orders from his foreman. It was also claimed
that Luker was guilty of insubordination, but the only testimony to
support this is merely to the effect that Luker followed in the foot-
steps of Dreyer.
It is clear from the record that the only painters who have been
employed by the respondent since December 13, 1937, are Foremen
Clifford Young and Louis Morton. Morton has been employed by
the respondent since January 1, 1929, and therefore has seniority over
both Dreyer and Luker. The record also shows that after December
1937 the respondent's painting processes were materially changed,
the result being that the need for additional painters was eliminated.
Although there is evidence in the record that men have been trans-
ferred from other departments to perform common labor in the paint
shop, it also appears that this was customary prior to the change in
the painting process and the lay-off of Dreyer and Luker. There is
also some evidence in the record that one or two men from the
assembly department have done some painting in emergencies, but
that there has been no need for additional painters since Dreyer and
Luker were laid off.
We, therefore, find that Dreyer and Luker were not discharged
for union activities, but were laid off because their services were no
longer needed. We shall dismiss the complaint as to them.
Eugene Hetzel. Hetzel was employed as a machinist in April 1934
and continued in that capacity until he was laid off on December 24,
1937. He had had approximately 14 or 15 years' experience as a
machinist prior to his employment by the respondent. He joined the
Union in May of 1937 and was active in the strike. Following the
strike, he was elected a member of the bargaining committee and
served in that capacity until he was laid off.
When Hetzel was laid off Foreman Robl told him that it was due
to slack business and that as business was picking up he would be
recalled in a short time. Hetzel, as was customary for laid-off em-
ployees, left his tools in the machine shop. He returned to the plant
in January 1938 and talked with E. C. Leach, president of the re-
spondent, concerning reinstatement. At that time three machinists
with less seniority than Hetzel were working although the contract
between the respondent and the Union provided for seniority in rehir-
ing after a lay-off. The record does not disclose what conversation
Hetzel had with Leach on that occasion but he was never recalled for
work. Hetzel's tools were returned to him by order of Superintend-
LEACH COMPANY 1185
ent Lisek on February 1, the day the respondent's contract with the
Union expired.
Foust and William Pfeil were the only machinists who had greater
seniority than Hetzel. Hetzel was recognized by the supervisory force
as being one of the most capable and experienced machinists in the
shop. One of his duties was to inspect all work which was performed
under Government contract. He also instructed new men as to the use
of the machines in the shop and assisted them in learning their jobs.
There were never any complaints about his work and during the latter
part of August, or the first part of September, he was offered the fore-
itianship of the machine shop by Superintendent Lisek.
The respondent contends that Hetzel was discharged, although at
the time he was laid off he was told that he would be recalled, because
he would not cooperate with his foremen and because he refused to
obey an order given him by Leach. In support of the contention that
Hetzel would not cooperate with his foremen, Everett Gibson, who was
foreman of the machine shop from about August 28 until about Octo-
ber 13, testified that on one occasion he told Hetzel that he wanted
him to inspect the first, casting that came off each machine on each
order and that Hetzel replied that he did not have to take his (Gib-
son's) orders. Hetzel testified that when Gibson told him to inspect
the first casting on each order, he asked if Gibson had received those
instructions from Lisek, the superintendent, but denied saying that he
would not take Gibson's orders. Later he asked Lisek if he should
inspect each casting and Lisek replied, "Absolutely not; that is what
we have a foreman -for." This conversation was not denied by Lisek.
Robl, who became foreman on October 15, testified that on a few
occasions when he asked Hetzel to do something, Hetzel replied that
he did not have time. It was not shown that Hetzel did have time to do
the jobs Robl asked him to do. Hetzel testified that he never refused
to take any orders from any of his foremen, but that on occasions when
he was busy inspecting Government work and was told to do some-
thing by the foremen he would tell them that he did not have time to
do what they requested.
E. C. Leach testified that in November 1937 he was informed that
certain bearings which had been ordered from the United States
Motors, another machine shop in Oshkosh, had been inspected and re-
jected by Hetzel; that he questioned Hetzel about the bearings and
was informed that none of them were any good ; that he told Hetzel
to return them immediately to the United States Motors, but discovered
3 or 4 days later that Hetzel had not returned them ; and that when he
questioned Hetzel again the latter replied that he did not have to send
them back as they could not be fixed. Leach further testified that
following his second conversation with Hetzel, he told Superintendent
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lisek that anybody who would not take orders should be fired. Lisek
told him that they were up against it and to wait until a large contract
they were working on was filled before firing Hetzel.
Hetzel testified that when Leach first asked him about the bearings,
he told him he had not finished inspecting them, but that most of the
bearings he had looked at were defective; whereupon Leach told him
to send them back. He further testified that later that day Lisek told
him to be sure and inspect each bearing before it was returned. The
following day, according to Hetzel, Leach demanded to know why he
had not returned the bearings, and he told Leach that he had not com-
pleted his inspection and that it would be useless to return the bear-
ings as they could not be repaired . A few seconds after this
conversation Lisek told him he would get the necessary order which
would have to accompany the bearings when they were returned. Lisek
did not get this order for about a week following this conversation.
Louis J. Grammell , foreman of the United States Motors, who
was present during the first conversation between Leach and Hetzel
concerning the bearings , testified that he heard Hetzel state that ,all
of the bearings were defective. He did not hear what Leach said
at the time.
We are convinced that Hetzel's action did not amount to insubordi-
nation and at most only resulted from a misunderstanding as to
his instructions. It later developed that the bearings could not
be repaired, as originally contended by Hetzel, and much time would
have been saved if new bearings had been ordered rather than an
attempt made to repair them. In any event this incident was not
the reason for Hetzel's discharge since he continued to work regu-
larly until he was laid off on December 24, 1937.
We are convinced that Hetzel was discharged because of his union
activity. The respondent's defense of insubordination is clearly
an afterthought , as demonstrated by the fact that Hetzel worked for
at least a month after the occurrence concerning the bearings from
the United States Motors, that at the time he was laid off he was
told that he would be recalled, and that he had no knowledge that
he was discharged until his tools were returned. We find that
Hetzel's discharge was in furtherance of the respondent 's plan to
rid its plant of all active union leaders and so destroy the Union
before it could negotiate a new contract . As with the discharges of
Foust and Curd, we find that the respondent did not notify Hetzel
that ho was being discharged in December, but merely told him he
was being laid off, in order to prevent him from submitting his
discharge as a complaint to be handled under the provisions of the
contract as set out above.
We find that the respondent discharged Eugene Hetzel on Decem-
ber 24, 1937 , and has since refused to reinstate him, because of his
LEACH COMPANY 1187
union membership and activities, thereby discouraging membership
in the Union, and by such acts has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Hetzel has had some W. P. A. work since his discharge. He
desires reinstatement.
Leo C. Miller. Miller was employed as a machinist in November
1934. He was laid off about December 24, 1937, but was recalled a
day or two later by Foreman Robl to assist in laying some flooring
in another part of the plant. He was told at this time that he
would be transferred to the machine shop as soon as work was avail-
able and was so transferred in January 1938. Miller was again laid
off by Robl on February 23, 1938.
Miller joined the Union on May 6, 1937, and was active during
the strike. Miller testified that on occasions he rode home with
Foreman Robl. During the latter part of January or the first of
February 1938 Rob] asked him if he still belonged to the Union, and
when Miller replied that he did, Robl stated that he had belonged to
a union once but received no benefit from it, and added, "You will find
that out too, if you are in it long enough." He also asked Miller
if he was still attending union meetings and after Miller replied that
he was, Robl asked him what took place at such meetings. Miller
answered that it was his own affair. Robl then made the statement,
"1 will tell you for your own good that. you had better drop the
Union and not go to any more union meetings." About a weer
prior to February 23 Robl stated, "Leo, I will tell you, you had
better drop the Union. You know Mr. Leach is opposed to union
men." On February 7, 1938, Miller was elected news reporter by
the Union. A few days later Rohl stated to Miller that he had
heard he held an office in the Union.
Robl denied telling Miller that he should get out of the Union.
He also stated that he did not remember that Miller had been elected
news reporter. He admitted that he told Miller his experiences with
unions and that he told him, "I never got any benefits from it."
He explained that these statements were made to Miller as fatherly
advice. The Trial Examiner did not credit Robl's denials. He
found that Robl made the statements attributed to him by Miller.
We agree with the Trial Examiner and find that Robl made the
statements to Miller recited above.
Miller was one of the five employees who refused, during the latter
part of January 1938, to sign the Frandsen petition, referred to
above, which stated that the signers were not in favor of the hours
of work established by the contract between the respondent and the
Union. During the first week in February 1938 Lisek stated to
Miller that the employees had agreed to work 50 hours a week rather
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than 45 hours as provided in the union contract which expired on
February 1. Miller replied that he still preferred to work 45 hours,
as provided by the contract . Lisek stated that there would not be
any contract in the future and that if the men worked 50 hours the
respondent would not have to hire any additional men. Miller stated
that he would prefer to work 45 hours and let the respondent re-
instate some of the men who had been discharged . Lisek answered
that those men would not be back again . Soon after this the re-
spondent posted a notice that the plant would operate 50 hours
a week.
Miller was laid off on February 23, 1938, together with F. Kircher,
Robl telling him that work was slack, but that he would be recalled
as soon as work was available . At the time Miller was laid off five
other maebinists were retained who had less seniority . Follow-
ing his lay -off Miller learned that Kircher, who was junior in service
to him, had been recalled on February 24. On February 28 Miller
returned to the plant and asked why Kircher had been recalled in
preference to him and when he would be reinstated .' Robl replied
that since his lay-off it had been discovered that he had spoiled five
bucket arms and that Leach had stated that he could not be rein-
stated. No reference had been made to the faulty work on the
bucket arms at the time Miller was laid off, although the work had
been performed a week prior to February 23. The respondent does
not contend that Miller's faulty work was discovered after his lay-off
and prior to the time Kircher was recalled. The bucket arms were
salvaged , the labor cost being $8.33.
About December 1, 1937, Miller bored a valve too large. The valve
could not be salvaged . Miller was not disciplined for this action.
The respondent also introduced certain of its records to show that
Miller spoiled some brackets , which required a direct labor cost of
$8.33 to salvage. It is not clear when Miller did the faulty work,
but the error was discovered while Miller was still working. It does
not appear that it was called to Miller's attention or that he was
disciplined for it.
Miller was a competent machinist . He had had 7 years' experi-
ence before he was hired by the respondent. During the period of
3 years that he worked for the respondent the only complaint he
received concerned his improper work on a valve , as mentioned above.
Frederick O. Kile, the respondent 's superintendent for 7 years prior
to the strike , testified that when he was superintendent he did not
hear of any complaints concerning Miller. Superintendent Lisek told
Miller, on the day he was laid off, that if he wanted a recommenda-
tion he would give him the best one he could , "the best that he would
ever give any man." Robl, when asked, "Did you have any diffi-
LEACH COMPANY 1189
culty with Mr. Miller at all?" answered, "No, nothing that I can
specify, not any more than the rest of them." Everett Gibson, ex-
foreman of the machine shop, testified that Miller was not hard to
get along with, that he liked to talk "a little bit more than was really
necessary," but that he did his work "pretty well."
On the basis of the entire record we find that the respondent dis-
charged Leo C. Miller on February 27, 1938, and thereafter refused
to reinstate him, because of his union membership and activity, thereby
discouraging membership in the Union. We further find that by such
acts, and by Robl's statements to him, the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Miller has not secured any other regular employment. He desires
reinstatement.
William Beson. Beson was employed by the respondent as a welder
in about June 1935. Prior to securing his employment he completed
a course of instruction in welding given by the respondent's foremen.
Beson worked as a welder until he was laid off on December 24, 1937.
He was often complimented on his work by his foremen and received
no complaints concerning it.
Beson joined the Union in May of 1937 and was elected a member of
the bargaining committee. He served in that capacity until after the
strike was settled.
When Beson was laid off he was told that he would be recalled as
soon as his services were needed. He was never recalled although work
was available.
Superintendent Lisek testified that when welders were needed in
about January 1938 he discussed the matter with Foreman Earl Chase
and Chase stated that he would like to recall Beson in preference to
any of the other welders who had been laid off. According to Lisek,
after some discussion it developed that Otto Risto, a member of the
Union with seniority equal to Beson, who had also been laid off on
December 17, was a faster welder than Beson, and they decided to
recall Risto rather than Beson. Thereafter, on July 22, 1938, a new
welder, Bahr, was employed. Another employee, Zernzack, who had
less seniority than Beson, was returned to the welding department
during the summer of 1938. A welder by the name of Rainey, who
had quit following a lay-off in 1936, was reemployed on August 4,
1938.
The respondent contends that Beson was not recalled because his
work was unsatisfactory. Beson and Otto Risto had done all the
welding on refuse-getter bodies during the year of 1937. Approxi-
mately 50 per cent of these bodies leaked when filled with water
and had to be spot-welded to stop the leaks. In 1938 the welding
process was changed and, although Foreman Chase claimed that under
283033-41-vol 22-76
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the new process it was more difficult to prevent the bodies from leaking,
the number of leaking bodies decreased from approximately 50 per
cent to approximately 3 or 4 per cent. Risto did all the welding on the
refuse-getter bodies in 1938 and it is admitted that this is the most
difficult welding which is done by the respondent. Superintendent
Lisek concluded that Beson was responsible for the defective work
in 1937.
About November or December 1938 Beson saw Fred Frandsen, fore-
man of the shipping department, who had prepared and circulated
the petition in opposition to the Union, referred to above. Beson
testified that Frandsen asked why he was "sore" and that he replied,
"... if you hadn't run to Mr. Leach with a bunch of lies our fellows
wouldn't be out of work, that we would all have jobs." According to
Beson, Frandsen denied having done anything like that, but stated,
"If you want your job back all you have to do is go back to Mr. Leach
and he'll give you back your job if you will forget that union business."
Beson testified that when he asked Frandsen what he knew about the
matter and who gave him authority to make an offer of a job, Frand-
sen replied, "I know what I'm talking about." Frandsen testified that
he did not tell Beson he could have his job back if he would forget his
union ideas. The Trial Examiner found that the conversation occurred
as related by Beson. We affirm his finding.
Although we find that Risto was a faster and better welder than
Beson, and therefore better qualified to do the welding on the gar-
bage-getter bodies, we think that the respondent's refusal to recall
Beson when the ordinary type of welding was available and when
other welders were hired in the summer of 1938 was part of its plan
to eliminate the active members of the Union from among its em-
ployees. We find no merit in the respondent's contention that Beson's
work was unsatisfactory. We think that the satisfactory, nature of
Beson's work, and the respondent's appraisal of it, is clearly demon-
strated by Foreman Chase's request that Beson be the first man
rehired.
We find that the respondent refused to reinstate William Beson
on July 22, 1938, because of his union membership and activities,
thereby discouraging membership in the Union. We also find that
by such conduct the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
7 of the Act.
Beson has not secured any regular employment. He desires
reinstatement.
Frank Klosterman, Jr. Klosterman was employed by the respond-
ent as a welder on January 18, 1937, and continued to work in that
capacity until he was laid off on December 24, 1937. He joined the
Union in May 1937 and served on the By-Laws Committee. Follow-
LEACH COMPANY 1191
ing his lay-off in December, he was elected to the bargaining
committee.
When Lisek laid off Klosterman he told him that the welders
would, be recalled in a short time. Klosterman was never recalled.
Foreman Chase testified that when the question of recalling the weld-
ers came up he told Lisek he did not want Klosterman back. He
testified that when Klosterman was employed he stated that he had
had 3 years' experience as a welder. This was not denied by Kloster-
man although he testified that at the time he was employed he had
had no actual experience, as a welder but had completed a welding
course. Chase testified that Klosterman was constantly bragging and
telling everyone else in the shop how to perform their duties. He
further testified that all the other foremen of the company were con-
stantly kidding him about Klosterman and stating that "if he was
working for them they wouldn't keep him for fifteen minutes."
Although we find that Klosterman's work as a welder was satis-
factory, we do not think that the refusal to recall him was caused
by his union activities. Chase, who was a member of the Union until
February 1938, was not attempting to discriminate against the union
welders, as demonstrated by his request to recall Beson.
We find that Klosterman was laid off and refused reinstatement
for reasons other than his union activities. We shall dismiss the
complaint as to him.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial 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.
THE REMEDY
Since we have found that the respondent has engaged in certain un-
fair labor practices, we shall order that it cease and desist therefrom.
In order to effectuate the policies of the Act, and as a means of re-
moving and avoiding the consequences of the respondent's unfair
-labor practices, it is essential that in aid of our cease and desist order
-the respondent be directed to take certain affirmative action, more
particularly described below.
We have found that the respondent discriminated against William
Foust, Frank Curd, Henry Millard, Robert Millard, Eugene Hetzel,
-Leo C. Miller, and William Beson, in regard to their hire and tenure
-of employment. We shall order the respondent to offer to the above-
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
named individuals immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their sen-
iority and other rights and privileges, and to make them whole for
any loss of pay they have suffered by reason of the discrimination
against them by payment to each of them of a sum of money equal
to the amount which he normally would have earned as wages from
the date of the respondent's discrimination against him to the date
of the offer of reinstatement, less his net earnings 3 during said period.
We have also found that the respondent has not discriminated
against Clarence Frihart, Carl F. Dreyer, Earl E. Luker, and Frank
C. Klosterman, Jr. We shall order that the complaint be 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 as to said
individuals.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Automobile Workers of America, Local No. 291, 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 employ-
ment of William Foust, Frank Curd, Henry Millard, Robert Millard,
Eugene Hetzel, Leo C. Miller, and William Beson, thereby discourag-
ing membership in United Automobile Workers of America, Local
No. 291, 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.
3 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 the unlawful
discrimination against him and the consequent necessity of his seeking employment else-
where See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America, Lumber and Sawmill Workers Union , Local 2590, 8 N. L R B 440_
Monies received for work performed upon Federal , State , county, municipal , or other work-
relief projects are not considered as earnings , but, as provided below in the Order , shall he
deducted from the sum due the employee , and the amount thereof shall be paid over to the
appropriate fiscal agency of the Federal , State , county, municipal , or other government or
governments which supplied the funds for said work -relief projects matter of Republic
Steel Corporation and Steel Workers Organizing Committee , 9 N L. R B . 219, enf'd, as
modified as to other issues , Republic Steel Corporation v. N
(C C A 3), ceit. denied 309 U. S 684
L R. B, 107 F. ( 2d) 472
LEACH COMPANY 1193
5. The respondent has not discriminated in regard to the hire and
tenure of employment of Clarence Frihart, Carl F. Dreyer, Earl E.
Luker, and Frank C. Klosterman, Jr., and has not engaged in unfair
labor practices, within the meaning of Section 8 (3) of the Act, with
regard to them.
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, Leach Company, Oshkosh, Wisconsin, and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Automobile Workers of
America, Local No. 291, or in any other labor organization of its
-employees, by discharging, laying off, or refusing to reinstate any
,of its employees, or in any other manner discriminating in regard
to their hire and 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, join, or assist labor organizations, to bargain collectiN ely
through representatives of their own choosing, or to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to William Foust, Frank Curd, Henry Millard, Robert
Millard, Eugene Hetzel, Leo C. Miller, and William Beson, and to
-each of them, immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority
-and other rights and privileges; and make them whole for any loss
of pay they may have suffered by reason of the respondent's discrimi-
nation against them by payment to each of them of a sum of money
equal to that which he would normally have earned as wages from
the date of the respondent's discrimination against him to the date
,of the respondent's offer of reinstatement, less his net earnings 4 dur-
ing said period; deducting, however, from the amount otherwise due
him, monies received by him during said period for work performed
upon Federal, State, county, municipal, or other work-relief proj-
ects; and pay over the amount so deducted to the appropriate fiscal
agency of the Federal, State, county, municipal, or other government
See footnote 3, supra
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or governments which supplied the funds for said work-relief
projects;
(b) Post immediately in conspicuous places at its plant, and main-
tain for a period of at least sixty (60) consecutive days from the-
date of posting, notices to its employees stating : (1) that the re-
spondent 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 para-
graph 2 (a) of this Order; (3) that the respondent's employees are-
free to become or remain members of United Automobile Workers
of America, Local No. 291, and that the respondent will not dis-
criminate against any employees because of membership or activity in
that organization;
(c) Notify the Regional Director for the Twelfth Region in writ-
ing 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, with regard to Clarence Frihart,
Carl F. Dreyer, Earl E. Luker, and Frank C. Klosterman, Jr., that.
the respondent has engaged in unfair labor practices, within the
meaning of Section 8 (3) of the Act.