The B. F. Goodrich Co.

National Labor Relations Board - Board DecisionsDec 11, 1945

64 N.L.R.B. 1303 (N.L.R.B. 1945)

In the Matter of. TIIE B. F. GOODRICH COMPANY and FOREM.AN's ASSOCIATION OF AMERICA , B. F. GOODRICH CHAPTER #98 Case No. 8-C--1691.-Decided December 11, 1945 Mr. Frank L. Danello, for the Board. Messrs. L. M. Buckingham and C. D. Russell, of Akron, Ohio, for the respondent. Lllr. W. Allen Nelson, of Detroit, Mich., and Mr. Lorin F. Hibbard, of Akron, Ohio, for the Union. Mr. Isadore Greenberg , of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a charge duly filed by Foreman's Association of America, B. F. Goodrich Chapter #98, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eighth Region ( Cleveland , Ohio), issued its com- plaint, dated December 9 , 1944, against The B. F. Goodrich Company, Akron, Ohio , herein called the respondent , alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and ( 3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, together with notice of hear- ing thereon, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the respondent : ( 1) on or about July 29, 1944, dis- charged Robert K. Ormsby and thereafter refused to reinstate him because he had engaged in concerted activities and joined and assisted the Union ; ( 2) maintained a close surveillance of the activities, meet- ings, and meeting places of the Union and its members , threatened its employees with discharge or other reprisals if they became members of the Union, and urged, persuaded, and warned its employees to refrain from becoming or remaining members of the Union; (3) by the afore-mentioned acts, interfered with, restrained, and coerced its 64 N L. It B., No 216. 1303 1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the exercise of the rights guaranteed in Section 7 of the Act. Respondent filed no answer. Pursuant to notice duly served upon the parties, a hearing was held at Akron, Ohio, from December 28, 1944, to January 3, 1945, inclusive, before Sidney L. Feiler, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were repre- sented by counsel; the Union, by its own representatives. All parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence hearing on the issues was afforded all parties. At the close of the Board's case, the respondent moved to dismiss the complaint. The motion was denied. At the close of the hearing the Trial Examiner, without objection, granted a motion of counsel for the Board to conform the pleadings to the proof in formal matters. During the course of the hearing, and in his Intermediate Report, the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no preju- dicial error was committed. Insofar as they are not inconsistent with this decision, the rulings are hereby affirmed. At the close of the hear- ing all parties presented oral argument to the Trial Examiner. Thereafter, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the respondent and the Union. In his Intermediate Report, the Trial Examiner dismissed the allega- tion of the complaint that the respondent had discharged Robert K. Ormsby in violation of Section 8 (3) of the Act, but found that the respondent had engaged in, and was engaging in, unfair labor practices affecting commerce within the meaning of Section 8 (1) of the Act, and recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Excep- tions to the Intermediate Report, supported by briefs, were thereafter filed by the respondent and the Union. The parties were afforded, but did not avail themselves of, the opportunity to argue orally before the Board at Washington, D. C. The Board has considered the exceptions and briefs filed by the parties, and, insofar as they are inconsistent with the findings, con- clusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a New York corporation, licensed to do business in the State of Ohio, and having an office and place of business at Akron, Ohio, where it is engaged in the manufacture and distribution of rub- ber and rubber-like products. During 1943, the value of the finished THE B. F. GOODRICH COMPANY 1305 products manufactured at Akron was in excess of $100,000,000, of which at least 75 percent was shipped to points outside Ohio. During the same period, the respondent purchased for use at its Akron plant raw materials valued in excess of $50,000,000, of which more than 80 percent was received from points outside Ohio. II. TILE ORGANIZATION INVOLVED Foreman's Association of America is an unaffiliated labor organiza- tion, the inenibership of which is confined to supervisory employees. Through its B. F. Goodrich Chapter #98, it admits to membership foremen employed by the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Self-organizational activity among the foremen at the respondent's Akron plant started in April 1944. By late June, a local of the Union was established at the plant, temporary officers were elected, and arrangements were made for the first public meeting to be held on July 2 for the election of permanent officers. Glen R. Schreiber, assistant to the Chief Engineer and in charge of personnel and labor relations for the respondent's Engineering Divi- sion, admitted that on July 2 he parked his car for about 20 minutes across the street from the Union's meeting place in order to observe the attendance at the Ineeting. Some of the respondent's foremen who attended the meeting saw Schreiber watching those who went into the assembly hall. The Union's president, Ormsby, testified, and we find, that several of the foremen refused to enter the meeting place when they became aware of Schreiber's presence outside. Surveillance by an employer of the union activities of his employees has consistently been held by us and by the Courts to constitute a powerful form of interference with employees in the exercise of their rights under the Act.' The coercive nature of Schreiber's conduct is more marked in the light of the circumstances revealed by the record. Schreiber was no minor foreman, but a high official in the respondent's plant, especially charged with the duty of representing management in handling personnel and labor relations matters. His presence be- fore the Union's meeting place on July 2 is shown by the record to have deterred at least some of the foremen from attending its first "Hatter of Frredrnan-Harry Marks Clothing Co , 1 N L R B . 411, 432 , enforced, 301 U S 58, 7. 5, Matter of Berkshire Kn,ittvnq Mills, 46 N L R B 955, enforced 139 F (2d) 134, 140 (C C A 3), cert denied 322 U. S 747, Hatter of Jasper Chair Company, 46 N L R. B . 528, enforced 138 F ( 2d) 756, 758 ( C. C. A 7 ), cert denied 321 U S 777; Matter of Northwestern Mutual Fue, Association, 46 N L. R. B 825, enforced 142 F (2d) 866, 867 (C C. A 9), cert . denied 323 U S. 726 , Matter of Fairmont Creamery Co, 52 N. L. R B 75, enforced 143 F ( 2d) 668, 670 ( C. C. A. 10), cert denied 323 U. S. 752. 1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD public organizational meeting. Moreover, Schreiber's surveillance was not an isolated act, but constituted part of a general pattern of anti-union conduct which was shortly afterwards manifested in the discriminatory discharge of Ormsby, president of the union chapter. The discharge is discussed below. We find that by Schreiber's surveillance of the Union's meeting of July 2, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Other alleged acts of interference, restraint, and coercion During the latter part of June 1944, General Foreman Bauer, of the respondent's Braided Hose Division, sent a letter to each of the 18 shift foremen subordinate to him, which read as follows : This morning I received the information that a Foreman's Union is starting to organize at Goodrich. I understand that it is especially strong on the night shifts. I would appreciate it very much if I would be given the opportu- nity of talking to you if you are considering joining this union. The thought behind this request is not to criticise or humiliate but a chance to talk over the reasons why you are possibly joining and what benefits you can hope to expect from such an organization. Please feel free to contact me at any time concerning anything which might be on your mind. There is no evidence that any employee accepted Bauer's invita- tion, nor is there any proof that any employee failed to join the Union because of it. We find, as did the'Trial Examiner, that during and after the lat- ter part of August 1944, General Foreman Geisinger, of the Lubri- cation and Maintenance department of the respondent's Engineering Division, in the course of various conversations, made the following statements to his subordinate shift foreman, Sweet: that Sweet was "up organizing the foremen" ; that it is "against the law for fore- men to be organized"; that Sweet "may get fired over this yet"; and that the respondent's vice president, Graham, was opposed to the Union.2 The Trial Examiner found that, by the letter of Bauer to his sub- ordinate foremen and the statements made by Geisinger to Sweet, the respondent interfered with, restrained, and coerced its employees 2 Sweet testified that Geisinger made the above statements to him. Geisinger denied that he had ever discussed the Union with Sweet, Sweet's testimony impressed the Trial Examiner as being straightforward and trustworthy. We, like the Trial Examiner , credit his version of the conversations. THE B. F. GOODRICH COMPANY 1307 in the exercise of the rights guaranteed in Section 7 of the Act. We do not agree. Bauer's letter, as is evident from its tone and style, is nothing more than a friendly invitation to his fellow foremen to discuss with him the advisability of joining the Union. It contains no threat, either express or implied, of punishment for membership in the Union or failure to comply with the request. As such, we find that it does not fall within the proscription of Section 8 (1) of the Act.' While Geisinger's statements referred to the hostility of the respondent's vice president toward the Union, and the possible dire consequences to Sweet of continued activity on its behalf, we find, in the absence of circumstances tending to bestow the authority of the respondent upon them, that they were merely expressions of Geisinger's personal opin- ion and beliefs, which his fellow foremen could feel free to accept or reject without reasonable fear of reprisal by the respondent. We do not judge Geisinger's statements by the same standards we would usually apply to similar utterances made by a foreman to his rank and file subordinates. Responsibility for the communications of a supervisor to rank and file employees is generally attributable to management because, by placing the supervisor in a "strategic posi- tion to translate to [his rank and file] subordinates the policies and desires of the management," the employer is presumed to have given the employees a reasonable basis for the belief that their supervisor speaks for management.4 The relationship between certain classes of supervisors and their subordinate foremen is, however, different. In that relationship, supervisors such as general foremen act in a dual capacity, by virtue of the fact that they represent management in dealing with their subordinate foremen and are, at the same time, themselves employees, recently held by the Board to be entitled to organize and bargain col- lectively in a single unit with those particular subordinates 5 When they act as representatives of management, the employer is, of course, bound by their conduct or utterances. When, however, such super- visors exercise their undoubted right, as employees, to campaign among the lower ranking foremen for or against a labor organization which is seeking their adherence in the same unit as those foremen, any statements which they may make in that capacity, whether friendly or hostile, are expressions of their personal opinion which may not, 'The Trial Examiner found that , since the letter invited those of the foremen who aught be considering membership in the Union to reveal this state of mind to Bauer, it constituted an illegal inquiry as to the attitude of the addressees towards the Union This finding overlooks the fact that the letter did not originate with the respondent , but was addressed by one member of the foremen ' s bargaining unit to his fellow members 4 International Ass'n of Machinists v N L R B ., 311 U S 72, 80 See the decision of the Board majority in Matter of Packard Motor Car Company, 61 N L R B 4 1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without more, reasonably be regarded by their supervisory subordi- nates as coercive conduct attributable to the employer. In determining, therefore, the legal effect under the Act of the state- ments made by a supervisor to his subordinate foremen with whom he may be represented in a single unit for collective bargaining, we must in each case first ascertain whether the supervisor spoke in his capacity as a representative of management or solely in his role as a member of the bargaining unit. In Matter of K. R. Donnelley and ^J'ons Company, 60 N. L. R. B. 635, we formulated the principle that such supervisors may be deemed to speak as representatives of management if it is shown that management encouraged, authorized, or ratified their statements or otherwise acted in "such manner as to lead the employees [tile supervisory subordint t2s] reasonably `o believe that the foremen were acting for and on behalf of management." In the instant case no such showing was made with respect to the communica- tions of Bauer or Geisinger. There is nothing in the record to indicate that the respondent authorized or even encouraged their statements, Nor does it appear that the respondent had any occasion to repudiate those remarks, for there is no showing that they were called to the attention of the respondent. There is, therefore, no basis in the record for us to infer that either of these general foremen, in discussing the Union, was acting in any capacity other than as a member of the same bargaining unit to which his subordinate foremen belonged." In these circumstances, we con- clude that the foremen to whom the statements were addressed had no reasonable ground to believe that Bauer and Geisinger were acting on behalf of managelnent.° We find that the statements of Geisinger to Sweet, and the letter of Bauer to his subordinate foremen, were not violative of the Act. C. The discriminatory discharge of Ormsby Robert K. Ormsby was employed as a shift foreman in the respond- ent's Plant Cleaning and Elevator Operation Department from De- cember 27, 1943, until July 29, 1944. Ormsby's immediate supervisor was General Foreman Clarence Bennett; the manager of the depart- ment was Thomas C. Richards. This department constituted part of the Engineering Division, in which Assistant Chief Engineer Glen R. Schreiber had charge of personnel and labor relations. 5 According to the constitution of the Union, all supervisory employees, excluding those who represent the management in negotiations concerning company policy, are eligible for membership It does not appear that either Geisinger or Bauer belongs in the excluded classification Indeed, in the case of Geisinger's statements, the record shows that on at least one occasion Manager Shechy expressly iepudiated anv such impression that Sweet might have gathered when, during one of the conversations between them, Sweet attributed Geisinger's criticisms of his (Sweet's) work to resentment at Sweet's union activities, Shechy replied that such activities "made no difference" either to Geisinger or to him. THE B. P. GOODRICH COMPANY 1309, Ormsby was employed on the night shift. His duties included the supervision of a crew of elevator operators and plant cleaners. Start- ing at a salary of $185 per month, plus overtime, he was, in February 1944, granted an increase of $15 per month in adjustment of a mis- understanding as to his overtime rate. In March, Manager Richards recommended Ormsby for a merit increase, which he received at the end of June, retroactive to June J. Ormsby was one of the leaders of the Union's organizational cam- paign in the respondent's plant. He had served as temporary presi- dent of the Union's chapter; on July 2, at the chapter's first public meeting, he was elected permanent president. It was this meeting of the Union which was admittedly kept under surveillance by Assistant Engineer Schreiber. Ormsby's activities in the Union were open and well known to his other superiors. He wore a union button in the plant continuously after the latter part of May. Bennett, Ormsby's immediate supervisor, testified that he knew of Ormsby's membership in the Union about 2 months before his discharge. Schreiber testified that he learned of Ormsby's election as president of the Union in the, middle of July. Ormsby was discharged summarily and without prior warning; oil July 29, under the following undisputed circumstances: Manager Richards summoned Ormsby and confronted him with a memorandum front Assistant Engineer Schreiber, charging Ormsby with having wasted time on various occasions after July 15 by loitering in the plant cafeteria, going out on the street to stroke, and engaging General Fore- man Bennett in an idle telephone conversation for an hour. Richards invited Ormsby to answer these accusations but Ormsby refused. Thereupon, Richards brought about Ormsby's discharge by reporting to the personnel department that he could "no longer use him." Richards testified that he was led to recommend Ormsby's discharge upon his receipt of Schreiber's memorandum, and that he believed the accusations listed in it to be true when Ormsby failed to deny them. Schreiber, author of the memorandum, testified that he received the ntformation charging Ormsby with having lingered unduly in the cafeteria on two occasions from the respondent's Chief and Assistant. Chief of Police, who, he asserted, had made these reports as the result of a general investigation instituted by the respondent to determine whether the foremen were overstaying their allotted half-hour lunch period in the cafeteria. This investigation, he claimed, showed that. Ormsby alone of some 120 foremen in the Engineering Division had abused the cafeteria privilege. The charge that Ormsby had wasted time by going out, of the plant to smoke, he explained, was based on his personal observation when he was present at the plant one night. On this occasion, he testified further, he saw another employee smoking on 1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the street with Ormsby, but took no steps to report or discipline the other employee because he did not know who the other employee was, and because, in any event, it was the function of the respondent's police department to make such reports. Aside from stating that his duties required him to be available for work at all times during the day and night, Schreiber did not explain his presence in the plant, at night, on this occasion. That Ormsby had wasted an hour by engaging Bennett in an idle telephone conversation, Schreiber further testified, was re- ported to him by Bennett. The latter testified that he could recall no such incident. Neither the Chief nor the Assistant Chief of Police, who had, ac- cording to Schreiber, furnished him with the information regarding Ormsby's conduct, took the witness stand to corroborate Schreiber's testimony that Ormsby had overstayed his time in the cafeteria or that the respondent had placed all foremen under surveillance in the cafeteria. Sergeant Flynn, a member of the respondent's plant-protec- tion force, who assisted in the supervision of the force on the night shift and gave them their work assignments, credibly testified that he knew of no surveillance of the activities of the foremen in the cafeteria. Sweet, whom the Trial Examiner found to be a credible witness and whose testimony likewise impressed us as trustworthy, testified that he encountered Schreiber in the plant at night during the period in question and that he had never before, in his 18 years of service on the night shift, seen Schreiber in the plant after daytime office hours. Ormsby denied that he had loitered in the cafeteria on any of the occasions charged. In this denial he was corroborated by Hibbard, who customarily ate in the cafeteria in company with Ormsby. Ormsby further testified that he failed to argue his case with Richards, when confronted with Schreiber's memorandum, because he was con- vinced that Richards had already determined to discharge him and that further discussion would be useless. The circumstances surrounding the compilation and use of Schrei- ber's memorandum impel us to the conclusion that, after learning of Ormsby's election as president of the Union, Schreiber had Ormsby placed under special observation' for the purpose of compiling a list of charges against him which would be, and were, used to bring about Ormsby's discharge. It is significant that all the incidents listed on Schreiber's memorandum took place after July 15, the date by which Schreiber admittedly knew that Ormsby had been elected president of the Union. Moreover, the record fails to support the respondent's contention that it was keeping its cafeteria under general observation. It seems improbable to us that if, in fact, such a plan to keep the cafe- teria under surveillance were in effect, Flynn would have been ignor- THE B. F. GOODRICH COMPANY 1311 alit of it. We likewise find it difficult to believe that if the respondent had actually kept the cafeteria under general observation, only Ormsby, of the 120 foremen in his division, would have been found to have overstayed his lunch period. We are -mindful, also, of addi- tional circumstances which indicate that Schreiber was interested in building a case against Ormsby, rather than, as he contends, in dis- covering generally whether plant rules were being violated. Thus, on the occasion when lie claimed personally to have observed Ormsby smoking on the street, he admittedly took no action to report or discipline the other employee who was smoking with Ormsby. Also significant is the fact that Schreiber included in his memorandum to Richards an accusation which Bennett could not recall, namely that Ormsby had wasted an hour in a frivolous telephone call to Bennett. In view of Bennett's inability to recall any such incident, and the lack of any other corroboration of Schreiber's testimony, we find that it never occurred. We also take into consideration the fact that Schrei- ber was unable to explain satisfactorily his extraordinary presence in the plant at night, during the period when his memorandum of accusations against Ormsby was being compiled. For Schreiber to have been present in the plant for the purpose of spying on Ormsby for anti-union purposes, would be consistent with his previous and admitted surveillance of the Union's first public meeting on July 2. Schreiber's determination to rid the respondent of Ormsby is further demonstrated by the admitted fact that, after allegedly receiving the reports from the Chief of Police and the latter's assistant as to Ormsby's alleged loitering in the cafeteria, Schreiber never investi- gated as to the source of their information nor inquired, either of them or of Ormsby, as to the attendant circumstances. Finally, the summary manner of Ormsby's discharge was admittedly contrary to the respondent's usual practice. Ormsby was never warned with respect to the alleged incidents listed in Schreiber's mem- orandum prior to the day of his discharge. Concerning the respond- ent's usual practice in discharging or disciplining its foremen, Schrei- ber testified that the respondent "does not ordinarily fire a foreman without first having warned him of his previous failure to do his work properly" and without "giving him a chance." Since we are convinced that Schreiber compiled the list of charges against Ormsby as a basis for penalizing him because of his union activity and not in a sincere effort to preserve plant discipline, we do not find it necessary to resolve the issue of credibility which arises from Ormsby's denial of the charge that he had lingered unduly in the cafeteria. Similarly; since the question of the legal consequences of the discharge does not turn on the truth or falsity of the charges against Ormsby, but rather on the real motives underlying the accusa- 1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD t ions, we find that Ormsby's failure to deny the charges when Richards confronted him with Schreiber's memorandum is inmiaterial to the basic issue before us. The respondent also seeks to justify Ormsby's discharge on the basis of conduct other than that alleged in Schreiber's memorandum. Rich- ards testified that he began to receive complaints about Ormsby's work as early as March or April 1944, and Bennett testified in some detail as to some of these alleged shortcomings. Included in these criticisms were Ormsby's failure to attend two hearings which the respondent had scheduled, pursuant to its established grievance procedure, on reprimands filed by Ormsby against an employee; Ormsby's alleged inability to cooperate with another foreman, named Yakovez; his failure to check properly certain "posting sheets" on which the earn- ings of his subordinates -kyere announced; his failure to make "log book" entries, by means of which work uncompleted on his shift was called to the attention of the succeeding shift foreman ; and his alleged failure on some occasions to see to it that certain offices were properly cleaned. From all of the circumstances, we conclude that none of the fore- going, either singly or together, contributed to, or were the real rea- sons for, Ormmsby's discharge, but that they were in fact no more than belated pretexts on which the respondent sought to rely in defense of its conduct. We, like the Trial Examiner, believe that the seriousness of some of these acts was obviously exaggerated and that other difficul- ties mentioned arose out of circumstances for which the respondent was itself responsible. Thus, we find from the testimony of Ormsby, Richards, and Bennett, that Ormsby's failure to appear at the griev- ance hearings was explained by him to the respondent's satisfaction the first time and that, on the second occasion, the offense, if any, was con- sidere,d so minor as to warrant no reprimand or warning. The friction between Ormsby and Yakovez arose out of the fact that both these foremen were assigned by the respondent to supervise the same group of subordinates at the same time. We find, as did the Trial Examn iner, that the conflicts between them were obviously the result of the re- spondent's failure clearly to define the respective spheres of authority of the two foremen. With respect to Ormsby's failure to check the posting sheets, it seenis clear from the testimony of both Bennett and Ormsby, and Nye find, that Bennett called this matter to Ormsby's at- tention on two or three occasions, that Ormsby then asked for instruc- tion in the correct method of handling them, and that, the difficulty was not, thereafter experienced. Ormsby admitted that at times he had riot made written entries in the log book of unfinished work, but testi- fied that in each case he had orally called the attention of the foreman relieving hi'm to any work that remained uncompleted on his shift. It appears front both Ormsby's and Bennett's testimony, and we find, THE B. F. GOODRICH COMPANY 1313 that the respondent did not enforce a rigid procedure requiring all such Information to be passed on from one shift foreman to another by written entries rather than by word of mouth. The complaints that certain offices had been improperly cleaned seen from the record to have been no more than routine reminders such as are, from time to time, given by a superior to a subordinate. That the respondent did not regard any of these alleged offenses as serious reflections on Orms- by's work and conduct is indicated by the fact that, although Bennett testified that he had had occasion to criticize Ormsby from April to July, he had never warned him that lie might be discharged if his work did not improve. On the contrary, at the end of June, the respondent granted Ormsby a merit increase. We conclude from the entire record that Ormsby was not discharged by the respondent because his work was unsatisfactory, but that, after learning of Ormsby's leadership in the Union, the respondent, acting through Schreiber, determined to rid itself of him, and that the accu- sations collected by Schreiber in his memorandum, and the criticisms of Ormsby's work voiced in the testimony of Richards and Bennett, were only pretexts for Ormsby's discharge, the real motive for which was the respondent's resentment at his activities on behalf of the Union. We, accordingly, find that, by discharging Ormsby, the respondent discriminated in regard to his hire and tenure of employ- ment, and thereby discouraged membership in the Union and inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Iv. 171E EFFECT OF TILE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. TIIE REâIEDY Having found that the respondent has violated Sections 8 (1) and 8 (3) of the Act, we must order the respondent, pursuant to the man- date of Section 10 (c), to cease and desist therefrom. We also predi- cate our cease and desist order upon the following findings: At the very beginning of the efforts of the foremen in the respondent's plant to organize, the respondent, by engaging in surveillance of the Union's first public meeting, thus deterring some of the foremen from attending the meeting, initiated a coercive course of conduct manifestly designed (,-,0417-46-col 14-84 1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to defeat the self-organizational activities of the foremen. Thereafter, as we have found above, the respondent kept Ormsby, president of the Union, under special observation in order to compile a record of dere- lictions against him. The respondent's course of conduct to achieve the purpose of defeating self-organization and its objects among its foremen culminated in the discriminatory discharge of Orlusby, a violation which "goes to the very heart of the Act." s Because of the respondent's unlawful conduct, and the underlying purpose manifested thereby, we are convinced that the unfair labor practices found are persuasively related to the other unfair labor practices prescribed by the Act, and that danger of their commission in the future is to be anticipated from the respondent's conduct in the past.9 The preventive purposes of the Act, will be thwarted unless our order is coextensive with the threat. In order, therefore, to make effective the interde- pendent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, we shall order the respondent to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. We shall-also order the respondent to take certain affirmative action de- signed to effectuate the policies of the Act. We have found that the respondent discriminatorily discharged Robert K. Ormsby on July 29, 1944. In order to effectuate the pur- poses and policies of the Act, we shall order the respondent to rein- state Ormsby to his former or a substantially equivalent position, and to make him whole for any loss of pay lie may have suffered by rea- son of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the period from July 29, 1944, the date of his discharge, to the date of the respondent's offer of reinstatement less his net earnings 10 during said period. In accordance with our usual practice, the period from the date of the Intermediate Report to the date of the Order herein will be excluded in computing the amount of back pay, since the Trial Examiner recommended that the IN. L. R. B. v. Entwaetle Manufactvi neq Co , 20 F (2d) 532- 536 (C C A 4) : see also, N. L R B v. Automotive Maintenance Machinery Co, 116 F (2d) 350, 353 (C C. A. 7), where the Court observed "No more effective form of intimidation nor one more violative of the N L R Act can be conceived than discharge of an employee because lie joined a 11 1union ... See N L. R B v Express Publishing Co., 312 U. S 426 10 By "net earnings" is meant earnings less expenses, such as for transportation, loom, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company, 8 N L R B 440. Monies received for work performed upon Federal , State, county , municipal , or other work -relief projects shall be considered as earnings See Republic Steel Corporation v N. L. R B., 311 U S 7 THE B. F. GOODRICH COMPANY 1315 complaint be dismissed insofar as it alleged that Ormsby had been chscrnninatorily discharged.- Upon the basis of the foregoing findings of fact and the entire record in the case, the Board makes the following: CoNcLusiovs OF LAW 1. Foremen's Association of America, B. F. Goodrich Chapter #98, 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 Robert K. Ormsby, thereby discouraging membership in Foremen's Association of America, B. F. Goodrich Chapter #98, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in any unfair labor practices by reason of the letter sent by General Foreman Robert Bauer to his subordinate foremen, nor by reason of the statements made by Gen eral Foreman Charles Geisinger to Shift Foreman John N. Sweet. ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The B. F. Goodrich Com- pany, Akron, Ohio, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Foreman's Association of America. by discharging any of its supervisory employees, or by dis- criminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its supervisory employees in the exercise of the right to self-organiza- tion, to form; join, assist or bargain collectively through Foreman's " Matter of B . R. Haffelfinger Company, Inc ., 1 N. L. R . B. 760. 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association of America, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Robert K. Ormsby immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges; (b) Make whole Robert K. Ormsby for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as wages during the period from the date of his discharge to the date of the Intermediate Report herein and during the period from the date of this Order to-the date of the respondent's offer of reinstatement, less his net earnings during said periods ; - (c) Post at its plant at Akron, Ohio, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the National Labor Relations Board for the Eighth Region, shall, after being duly : tgned by the respondenit"s representative, be posted by the respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days there- after, in conspicuous places, ' incl ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by other material; (d) Notify the Regional Director for the Eighth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT is rURT73ER ORDERED that the complaint, insofar as it alleges that the respondent, by the letter of General Foreman Bauer and the remarks of General Foreman Geisinger. interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, be, and it hereby is. dismissed. APPENDIX A No,ricF TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our supervisory employees in the exercise of their right to self- THE B. F. GOODRICH COMPANY 1317 organization, to form, join, assist, or bargain collectively through Foreman's Association of America. and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Wr WILL offer to the employee named below immediate and full reinstatement to his former or substantially equivalent posi- tion without prejudice to any seniority or other rights and privi- leges previously enjoyed, and make him whole for any loss of pay suffered as a result, of the discrimination. Robert K. Ormsby All our supervisory employee. are free to become or remain mem- bers of the above-named union. We will not discriminate in regard to lire or tenure of employment or any term or condition of employ- ment against any supervisory employee because of membership in or activity on behalf of said labor organization. Tiii B. F. GoollRtcl-i COMPANY, Employer. Dated ----------------- --------------------- (RepreseutatIve) (Title) NOTE.-Any of the above-nanied employees prevently serving in the armed forces of the United States will he offered fill reiustateutent upon application in accord- ance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by 'any other material. MR. GERARD D. HEu rv. concurring in part, dissenting in part: After reviewing t lie record in this case, I concur stiith the reasoning of my colleagues in finding that, the statements and utterances of the two general foremen, Bauer and Gelsinger, cannot be imputed to the respondent, with the conclusion that there was therefore no violation of Subsection 8 (1) of the Act. This is in line with well-established principles enunciated by this Board. I am not convinced, however, that we are justified in reversing the Trial Examiner's dismissal of so much of the complaint of the alleged discriminatory discharge of the shift foreman, Ormsby. Even if we assume that despite his supervisory status he was entitled to protection from discriminatory discharge because of his membership in the charg- ing labor organization, the transcript of the testimony contains ample I Hatter of R R Donnelle il and Sons Co .60 N L R B 685 , Matter of Mississippi Valley Structural Steel (,'ompany, 64 N L R B 78 See also Thomas v Collins , 323 U. S 516. 1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence of various breaches of the plant rules by the complaining witness. The case therefore turns upon whether or not the action of the Company in discharging him was motivated by Ormsby's short- comings, as the respondent contends. This is a factual question, and the burden of proof-otherwise rests upon the Board. While the dis- charge is not completely devoid of 'suspicious circumstances, I think the weight of the evidence sustains the Trial Examiner's conclusion that Ormsby was discharged for disciplinary reasons.