The Cleveland Pneumatic Tool Co.

National Labor Relations Board - Board Decisions

Dec 21, 1943

53 N.L.R.B. 1437 (N.L.R.B. 1943)

In the Matter of THE CLEVELAND PNEUMATIC TOOL COMPANY and
INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT #54
Case No . 8-C-,1391.-Decided December 21 ,1943
DECISION
AND
ORDER
On September 25, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist for the unfair labor practices
found and take certain affirmative action, as set out in the copy of
the Intermediate Report attached hereto. Thereafter, the respondent
filed exceptions to the Intermediate Report and a supporting brief.
On October 28, 1943, the Board, on its own motion, issued an order,
returnable on November 15, 1943, -requiring the parties 'herein to
show cause why the proceeding, in whole or in part, should not be
dismissed without prejudice, in view.of the limitations imposed upon
the Board by the National Labor'Relations Board Appropriations
act, 1944.1 • Pursuant to the order to show cause, the respondent duly
filed with the Board copies of collective bargaining agreements
which it had previously executed with The United Social Club and
Employees Association, an unaffiliated labor organization, herein
called the Social Club, and a brief urging that the proceeding herein
be dismissed in its entirety. On November 18, 1943, the respondent
and the Union 2 participated in oral argument before the Board in
Washington, D. C. The aforesaid copies of the collective bargaining
agreements, which were filed by the respondent in response to the
order to show cause; are hereby admitted in evidence and made a pirt
'Title IV , Act of July 12, 1943 , P. L. 135, 78 Cong ., 1st Sess. The Appropriations Act
contains the following provisions :
No part of the funds appropriated in this title shall be used in any way in, connec-
tion with a complaint case arising over an agreement between management and labor
which has been in existence for three months or longer without complaint being filed.
Provided, That, hereafter , notice of such agreement shall have been posted in the plant
affected for said period of three months , said notice containing information as to the
location at an accessible place of such agreement where said agreement shall be open
for inspection by any interested persons.
z The Union has notified us of its reaffiliation with the American Federation of Labor.
53 N. L. R. B., No. 262.
559015-44-vol. 53-92 1437
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the record. The Board has considered the rulings of the Trial
Examiner at the hearing and finds that no prejudicial errors were
committed. The rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report, the respondent's briefs and excep-
tions, and the entire record in the case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner, with
the additions, exceptions and qualifications noted below :
1. The respondent contended that the aforesaid provision of the
current Appropriations Act precludes the Board from proceeding
herein, because there is involved "an agreement between management
and labor which has been in existence for three months or longer
without complaint being filed." We find the respondent's contention
to be without merit. It appears that on April 24,.1939, the respondent
and the Social Club entered into their first agreement, which pro-
vided, among other things, that "it shall remain in full force and
effect for a period of 1 year from its execution." It contained no
provision for renewal. A new agreement was executed by the parties
each year thereafter at about the terminal date of the then existing
agreement. 'Each agreement specifically canceled the preceding agree-
ment; stated that the "contract hereinafter set out is substituted by
the mutual consent" of the parties thereto; provided for its duration
for a definite term of 1 year; and omitted any reference to renewal.
On May 21, 1943, the respondent and the Social Club entered into the
agreement which was in effect at the time the complaint herein was
issued. It contained, among other things, the provisions set forth
above, and it altered several substantive terms of the 1942 agreement,
such as those pertaining to seniority, vacations, and holiday pay.
The respondent contended that the 1943 agreement was not a new
contract but merely the annual renewal of its original contract of
1939. In view of (1) the consistent absence in all of the agreements
of language providing for renewal, (2) the specific cancellation of,
and substitution for, each expiring agreement, (3) the definite "one
year" duration of each new agreement, and (4) the changes appearing
in the 1943 and other agreements, we find that the agreement of 1943,
like each of the preceding agreements, was intended by both contract-
ing parties to be, and in fact was, a new agreement. Since amended
charges were filed by the Union, and a complaint was issued by the
Board, on July 31, 1943, the 1943 agreement has not been in existence
for 3 months or longer without complaint being filed, within the
meaning of the 1944 Appropriations Act.
2. In Section 3B of his Intermediate Report, the Trial Examiner
enumerated various acts and conduct engaged in by the respondent
through its supervisory employees, and found that by such conduct
the respondent assisted the Social Club and otherwise interfered
with, restrained, and coerced its employees in the exercise of the
ME CLEVELAND PNEUMATIC TOOL COMPANY 1439
rights guaranteed in Section 7 of the Act. In addition, we also find
that the following statements and conduct were intended to, and
had the effect of, assisting the Social Club and interfering with,
restraining, and coercing the employees in their right to self-organiza-
tion: (1) the solicitation of Biziak for the Social Club by Baker and
Delmore in April, 1942; (2) the comment by Baker to Biziak that the
Union was comprised of a "bunch of racketeers"; (3) the statement
in July 1942 by Baker to Biziak, "What is the use giving you a
raise? . . . Your time is limited . . . you are out for the A. F. of L.
anyway;" and (4) the discharge of Biziak on March 8, 1943. On the
other hand, contrary to the Trial Examiner, we do not consider the
single instance of the respondent's removal of a union handbill from
the bulletin board as evidence of its antipathy for the Union and pref-
erence for the Social Club.
3. The Trial Examiner found that the respondent discharged Joseph
Biziak on March 8, 1943, because of his membership in and activities
on behalf of the Union. We agree, and we find further that by such
conduct the respondent discouraged membership in the Union, en-
couraged membership in the Social Club, and interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act. The evidence shows that, prior
to his discharge, Biziak had urged two fellow employees to curtail
their production so that it would not exceed his. The matter was
brought to the attention of one of the respondent's superintendents
who thereupon conferred with Biziak, but no disciplinary action was
ever taken. It is also clear from the evidence that on two occasions
Biziak threatened Baker with physical violence. We are convinced
and we find that neither of the above-mentioned incidents had any
bearing upon Biziak's discharge, but that his discharge was effected
because of the respondent's desire to rid itself of the Union's most
active supporter and organizer, and we shall therefore order the
respondent to remedy its unlawful action with respect to Biziak
in accordance with our usual practice. However, our decision in
this regard is not to be construed either as a condonation of Biziak's
earlier conduct, or as a denial of the established prerogatives of an
employer in connection with the operation of his business and the
maintenance of plant discipline.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
ofthe National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, The Cleveland Pneumatic
Tool Company, Cleveland, Ohio, and its officers , agents, successors,
and assigns, shall:
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Discouraging membership in International Association of Ma-
chinists , District #54, affiliated with the American Federation of
Labor, or in any other labor organization of its employees, or en-
couraging membership in The United Social Club and Employees
Association , or in any other labor organization of its employees, by
discharging or refusing , to reinstate any of its 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) Recognizing The United Social Club and Employees Associa-
tion as the representative of any of. its employees for the purpose
of collective bargaining , unless and until that labor organization shall
have been certified by the Board as the representative of the
employees ; - ,
(c) Giving effect to its contract , dated May 21, 1943, with The
United Social Club and Employees Association , or to any extension,
renewal , modification or supplement thereof , or to any superseding
contract with that labor organization which may now be in force.3
(d) 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 collectively
through representatives of their own choosing , and to engage in con-
certed activities , for the purpose of collective bargaining . or other
mutual aid or protection , as guaranteed in Section 7 of the Act. ,
2. Take the following affirmative action which the Board finds will
effectuate the policiee of the Act:
(a) Offer Joseph Biziak immediate and full reinstatement to his
former or a substantially equivalent position , without prejudice to
his seniority or other rights and privileges; " .
(b) Make whole Joseph Biziak for any loss of pay he has suffered
by reason of the respondent 's discrimination against him , by payment
to him of a sum of money equal to the amount which he normally
would have earned as wages from March; 8, 1943, to the date of the
respondent 's offer of reinstatement , less his net earnings during said
period ;
(p) Withdraw and.withhold all recognition from The United Social
Club and Employees Association as the representative of any of its
employees for the purpose of collective bargaining with respect to
grievances , labor disputes , rates of pay , wages, hours of employment,
or other conditions of employment , unless and until that labor organ-
ization , shall have been certified by the Board as the representative of
the employees;
,9 Nothing herein , however, shall be deemed to require the respondent to vary those wage,
hour, seniority , and other such substantive features of its relations with the _ employees
themselves , if any, which the respondent established in performance of the contract, dated
May 21 , 1943, as extended , renewed , modified , supplemented , or superseded.
THE CLEVELAND PNEUMATIC TOOL COMPANY 1441
(d) Post immediately in conspicuous places in the respondent's
plant at Cleveland, Ohio, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to its employees
stating : (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a), (b), (c),
and (d) of this Order; (2) that the respondent will take the affirma-
tive action set forth in paragraphs 2 (a), (b), and (c) of this Order;
and (3) that the respondent's employees are free to become and remain
members of International Association of Machinists District #54,
affiliated with the American Federation of Labor, and that the respond-
ent will not discriminate against any employee because of his member-
ship or activity in that organization;
(e) Notify the Regional Director for the Eighth Region in writing,
within 10 days from the date of this Order, what steps the respondent
has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Mr. John R. Hill, for the Board.
Mr. Paul E. Black, of Cleveland, Ohio, for the respondent.
Mr. Nick Charo, of Cleveland, Ohio, for the Union.
STATEMENT OF THE CASE
Upon a fourth amended charge duly filed on July 31, by International Associa-
tion of Machinists, District #54, 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 complaint dated July 31, 1943, against The
Cleveland Pneumatic Tool Company, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor practices affect-
ing 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 and notice of hearing were duly served upon the respond-
ent, the Union and The United Social Club and Employees Association, herein
called the Social Club.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent: (1) in and about June 1942, and since that date by certain
of its officers, agents, and employees has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act
by urging, persuading and warning employees to join the Social Club and not to
join the Union ; by encouraging membership in the Social Club by permitting
solicitation on the respondent's time and property ; by encouraging membership
in the Social Club by posting handbills and other literature of the Social Club
on the respondent's bulletin boards and property ; by making derogatory remarks
to employees concerning the Union; by interrogating employees with reference
to their membership in and activities for the Union ; by threatening to discharge
employees because of their membership in and activities on behalf of the Union ;
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by making accusatory and intimidating statements to a' certain employee with
reference to, said employee 's alleged connection with certain handbills of the
Union ; by warning a certain employee that said employee 's failure to obtain
an increase in wages was due to said employee 's membership in and activities
for the Union ; by criticizing a certain employee for engaging in Union activities,
and by interrogating a certain employee about charges previously filed by the
Union with the Board and castigating a member of the Union in whose behalf
the Union had filed charges with the Board ; and (2 ) on or about March 8, 1943,
discharged Joseph Biziak and at all times since that date has failed and refused
to reinstate said employee because he was a member of and active in behalf of
the Union.
On or about August 11, 1943, the respondent filed an answer , admitting
certain allegations of the complaint as to the nature of its business but denying
that it had committed any unfair labor practices.
Pursuant to notice , a hearing was held at Cleveland , Ohio, from August 12
to August 20, 1943, inclusive , before the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner . The Board and the respondent were
represented by counsel , and the Union by a representative . The Social Club did
not enter an appearance or otherwise participate in the hearing. All other
parties participated in the hearing . Full opportunity to he heard , to examine
and cross -examine witnesses , and to introduce evidence bearing on the issues
wa's afforded all parties.
At the close of the Board 's case, counsel for the, Board moved to amend the
complaint by adding the name of Miles Delmore to those of the respondent's
officers, agents and employees named in the complaint in connection with the
alleged interference , restraint , and coercion . The motion was granted without
objection . At the close of the hearing, counsel for the Board moved to conform
the complaint to the proof as to dates and names . This motion was granted
without objection . At the close of the hearing, the respondent 's counsel moved
to dismiss the complaint for lack of proof. Ruling on this motion was reserved.
The motion to dismiss is hereby denied.
At the close of the hearing, counsel for the Board argued orally on the record
before the undersigned . Pursuant to permission granted at the hearing, the
respondent filed a brief.
Upon the entire record in the case and from his observation of the witnesses.
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Cleveland Pneumatic Tool Company is and has been since May 28, 1894,
a corporation organized under and existing by virtue of the laws of the State
of Ohio. The respondent maintains and operates a plant at Cleveland, Ohio,
where it is engaged in the manufacture of aircraft parts and pneumatic appli-
ances, such as riveting and pneumatic hammers.
In the manufacture of its finished products the respondent uses steel , tubing,
forgings and castings . During the year ending December 31, 1942, the respond-
ent used approximately $4,000,000 worth of the above raw materials in the
manufacture of its finished products . Approximately 10 percent of said raw
materials came from without the State of Ohio.
During the year ending December 31, 1942, the respondent manufactured
finished products of the type heretofore mentioned and of an approximate value
of $27 ,000,000. Approximately 95 percent of the respondent 's finished products
were shipped outside the State of Ohio,
THE CLEVELAND PNEUMATIC TOOL COMPANY 1443
Respondent employed approximately 4500 persons at the time of the hearing.
The respondent admits that it is engaged in commerce within the meaning of
the Act and the undersigned so finds.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, District #54, is a labor organization
which admits to membership employees of the respondent.
The United Social Club and Employees Association is a labor organization
which admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
On April 4, 1939, the Board conducted an election among all production and
maintenance employees of respondent, excepting supervisory and clerical em-
ployees. The total number of employees eligible to vote was 313. Of this
number the Social Club received 207 votes and the United Automobile Workers
of America received 72 votes. Thereafter, the Social Club was recognized by
the respondent as the bargaining agent for its employees and was so recognized
at all times hereinafter mentioned. At the time of the hearing the record indi-
cates the existence of a collective bargaining agreement between the Social Club
and the respondent. The record discloses that both the Union and the United
Automobile Workers of America engaged in organizational activities among the
respondent's employees during the times in question.
B. Interference, restraint and coercion
The departments in the respondent's plant are divided into sections such as
the "drill press" section of Department 7. Each department has a general fore-
man and shift foreman, the former having supervision over the latter. As a gen-
eral rule, each section has one "set-up" man, but some sections involving more
complicated work have more than one set-up man. These set-up men are re-
sponsible for-the work of from not less than 10 to 26 or more employees. The
respondent contends that these set-up men are not supervisory employees for
whose conduct the respondent is responsible.
Set-up men are paid on an hourly rate basis whereas foremen are paid on a
salary basis. Set-up men are classified at "double-A," the top classification for
employees below the rank of foreman. Neither foremen nor set-up men have
the power to hire or discharge employees. Foremen, however, can recommend
the discharge of an employee or an increase in wages. A recommendation for
an increase in wages must be passed upon finally by the divisional superintendent.
Set-up men assign the work to the employees in their sections and do not them-
selves perform any manual work, except when instructing new employees or
older employees if trouble develops on a particular job. Set-up men have the
power to recommend to foremen increases in wages and, in case of discharge,
they are consulted by foremen. The record conclusively shows that the set-up
man is considered by the employees as their immediate "boss." Accordingly,
the undersigned finds that set-up men are supervisory employees and that the
respondent is chargeable with their statements and conduct as set out herein
below.
Harry J. Dermer, an employee in Department 12, testified that about June
1942, he overheard a conversation between Henry C. Edsall, a general foreman,
and an unidentified employee. During this conversation Edsall said to the
employee, "We have a Social Club here. It is our Union that has the bar-
gaining rights in this shop and I think you should join this Social Club. We
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only charge you 25 cents a' month and a dollar to join and give you sick bene-
fits. We don't force you to join' __________ like the CIO and AF of L do."'' (At
the time of this conversation the Union was affiliated with the A. F. of L.)',
The undersigned finds that the above remarks of Edsall were calculated to
encourage membership in the Social Club and discourage membership in the
Union.
Sometime in April 1943, Dermer wore a union button in the plant. On' the
same or the next day after Dermer started to wear the button, Bill Seegert, an
ex-president of the Social Club, came to Dermer's machine and said, "Don't you
like to work here?" Upon being asked by Dermer what he meant, Seegert re-
plied, "what's the idea of the button?" Frank Milla, Dermer's set-up man, then
joined the conversation and asked Dermer where he got the button. Milla then
said, "You know, we don't want no outside union in here, ... we had the CIO
here once, . . . they didn't do us any, good, .. ,., we want nothing 'to do with the
AF of L or the CIO . . . We have already got the Social Club here to take care
of everything." 2
Edgar Sandman was employed by the respondent in the "drill press" section
of Department 7 until about August of 1942, at which time he' was transferred
to the "grinding" section of the'same department. Norris Baker was his set-up
man in the drill press section. In July, 1942, during working hours and while
Sandman was at his machine, he had a'conversation with Baker concerning the
Social Club and the Union. With respect to this conversation, Sandman testi-
fied that "he (Baker) `said that the AF of L was a bunch of racketeers and all
they were out for was the money," and that Baker said he preferred the Social
Club, and further stated, "if you wanted to stop work,, why, nobody was on your
neck chasing around after you ; that nobody would bother you about it." No
other employees were present during the conversation. The undersigned, credits
the testimony of Sandman as to this conversation and finds that Baker made
the statements so attributed to him by Sandman'.
William O. Robertson was hired by the respondent about September, 1942.
He was first employed in the grinding section of Department 7 and his set-up
man was William Aring. -Soon after Robertson started work for the respondent,
another employee in the grinding section, Danny Pospieszinsky, solicited him
during working hours for membership in the Social Club. On more than one
such occasion Aring was present. At, sometime in September or early October,
1 The undersigned credits the above testimony of Dermer . Edsall was called as a witness,
by the respondent and did not specifically deny the statements attributed to him by Dermer,
merely answering in the negative questions cast in the language of the ' complaint pro-
pounded by respondent 's counsel Edsall testified that be is "General Foreman of Dis-
tribution Tools " Both Dermer and Edsall were employed by the respondent at the time of
the hearing.
2 Dermer testified to the above facts and conversation and the undersigned credits his
testimony in this respect. ' Seegert was not called a's a'witness. Milla was called as a
witness by the respondent and did not specifically deny the above statements attributed to
him by Dermer He did, however , answer in the negative questions of the respondent's,
counsel as to whgtber or not he had ever made derogatory remarks about the Union, etc.
Mills was still employed by the respondent and was a member of the Social Club at the time
of the hearing.
3 Baker was called as a witness by the respondent but did not deny, either specifically or
generally , the 'above remarks attributed to him-by Sandman The respondent , however,
attempted to discredit Sandman's testimony with evidence tending to show that he at one,
time came to woik in an intoxicated condition . On cross-examination , Sandman admitted
that he came to work one day after having a "couple " of drinks . At the time of the hear-
ing, Sandman was not employed by the respondent . There is no evidence in thescase that
any disciplinary action was taken by the respondent against Sandman over the above inci-
dent. The record shows that he voluntarily left the respondent 's employ at some later date.
Sandman was a member of the Union.
THE CLEVELAND PNEUMATIC TOOL COMPANY 1445
Pospieszinsky intimated to Robertson that he (Pospieszinsky) could have an
employee discharged if he did not join the Social Club. Robertson told Aring
about this conversation but Aring did not comment on Pospieszinsky's claim.
While Robertson and Aring were talking, Pospieszinsky joined them. Aring then
stated to Robertson that he was in favor of the Social Club because the dues
did not cost much. They started to discuss the Union and Sandman, whose
machine was next to Robertson's, then joined the conversation. Aring and
Pospieszinsky both stated that it would not be to the advantage of the employees
if the Union organized the plant, as the wages then in existence at the plant were
higher than the Union standard 4
Shortly after the above conversation, Aring went to Sandman and it is the
uncontradicted testimony of Sandman and the undersigned finds that the follow-
ing conversation took place :
Aring told me that the AF of L was just a bunch of crooks, not to have
anything to do with them because all they did with the money was to
put it in their pockets anyway. A bunch of racketeers was at the head
of it .. .
(Concerning the advantages of joining the Social Club) he said, "If you
want to leave your machine and walk around and stop working any time
you want, why, nobody would bother you. Nobody was driving you."
In the latter part of November 1942, Robertson was transferred to the
"milling" section in Department 7. Louis Smoltz was the set-up man for this
section and William Satele was the general foreman for Department 7. Robert-
son asked both Smoltz and Satele for an increase in wages but was refused. At
the time or shortly thereafter, Smoltz said to Robertson, "Joe, (Biziak) is telling
you you can get $2 an hour if the A F of L gets in here. He is feeding you up
that you deserve more money." Satele then called Robertson over to his
(Satele's) desk and said , "You better stay away from Sandman and Joe Biziak,
because they are up to no good." These conversations took place in the latter
part of November or the early part of December 1942.' At the time, Robertson
knew that Biziak, an employee in the drill press section of Department 7, was
active in behalf of the Union. It will be hereinafter shown that Satele also
knew of Biziak's union activities at this time. It is clear that Satele in his
statement to Robertson was referring to the activities of Sandman and Biziak
in behalf of the Union, especially in view of the prior remarks of Smoltz to
Robertson. Accordingly, the undersigned finds that Smoltz's and Satele's re-
marks to Robertson were calculated' to and had the effect of discouraging
membership in the Union.
'About OctQber or November 1942, Biziak had a conversation in the plant with
Zolton Toth, set-up man for the "milling machines" section of Department 7.
Toth asked Biziak how the Union was getting along. Biziak replied that the
Union-was getting along all right and Toth then said, "They are just a bunch
of racketeers. They want your money." Biziak then attempted to point out
the advantages of "outside Unions." Toth replied to this by saying that if
he ever heard of any of his men joining the Union or the "CIO" he would get
them out of his department. The question of wages was then discussed, and
,' The above facts and conversation were testified to by Robertson and the undersigned
credits his testimony . Aring was called as a witness by the respondent but did not deny the
statements attributed to him by Robertson.
5 The above conversations between Robertson and Smoltz and Robertson and Satele were
testified to by Robertson and his testimony in this respect is uncontradicted . Satele was
called by the respondent as a witness but did not deny the statement attributed to him by
Robertson.
1446 DECISIONS OF' NATIONAL LABOR ERLATIONS BOARD
Toth stated that the rates at the plant were better than an outside union could
get. Jack Sharkey and some other unidentified employees were present during
at least part of the above conversation.6
The undisputed evidence in the case establishes that the respondent had a
number of bulletin boards in its plant, that at least one of these boards was
used exclusively by the Social Club, and that there were some bulletin boards
that were used both by the respondent for the posting of notices and by the
Social Club for the posting of handbills. When Department 7 was located on
the first floor of the plant, a bulletin board was located 8 to 10 feet in back
of Satele's desk. Handbills of the Social Club were often posted on this board,
as were notices of the respondent. Sandman, In about November 1942, posted
a handbill of the Union on this bulletin board. Shortly thereafter and on the
same day, Satele removed the handbill of the Union from the bulletin board.`
Except for one occasion when Biziak requested Benson, director of labor rela-
tions for the plant, for permission to post handbills of the Union on this same
bulletin board and was refused, there is no other evidence in the case that the
respondent required permission for the posting of union literature on its bulletin
boards. There is no evidence in the case that Satele had ever removed any
other handbills. The record also indicates that this handbill posted by Sandman
was the only handbill or literature of the Union ever posted on the bulletin
boards. The undersigned believes and finds that the respondent, by Satele's
removal of the handbill of the Union from the bulletin board, clearly indicated
to its employees its preference for the Social Club and its antipathy toward
the Union.
From all of the above the undersigned finds that the respondnt interfered
with, restrained, and coerced its employees in the exercise of the rights as
guaranteed in Section 7 of the Act and further finds that thereby the respondent
discouraged membership in the Union while encouraging membership In the
Social Club, thus aiding and assisting the Social Club in violation of the Act.
C. The discharge of Joseph Biziak
Biziak was hired by the respondent on or about March 24, 1942. He was
employed in the drill press section of Department 7 and after April or May
of 1942, Norris Baker was his set-up man. As heretofore mentioned, William
Satele was the general foreman of this department.
About the latter part of April 1942, and prior to the time that Baker became
a set-up man, Baker during working hours gave Biziak an application card for
membership in the Social Club. A few days later, Miles Delmore, set-up man
for the "lathe" section of department 7, came to Biziak's machine during
working hours and said, "How come you haven't turned in your card yet?"
6 Biziak testified to the above conversation and the undersigned credits his testimony in
this respect. Toth was called as a witness by the respondent but he did not specifically deny
the remarks attributed to him by Biziak. Toth, however, did testify that Biziak once
solicited him for membership in the Union and that he (Toth) replied that he would not
join the Union or any other union. Toth further testified that he had been a member of the
Social Club but was not a member at the time of this conversation.
7 The above facts concerning the removal of the handbill were testified to by Sandman
and are uncontradicted. Robertson testified that he saw the handbill posted on the board,
that the "handbill came down there so quick you• couldn't bat your eye," and that some em-
ployees told him that Satele had removed it. Satele did not specifically deny the removal
of the handbill. Satele, however, testified that there was no bulletin board in his depart-
ment when it was located on the first floor and denied that he ever removed a notice from the
bulletin board "upstairs." The testimony of various witnesses for the Board conclusively
show that a bulletin board was located behind and near Satele's desk on the first floor.
THE CLEVELAND PNEUMAT1O TOOL COMPANY 1447
Biziak replied that he wanted to think it over. Biziak later during the same
day signed the card and handed it together with the dues and initiation fee
to Delmore at his desk 8
At about the first part of June 1942 Biziak started to solicit the respondent's
employees for membership in the Union. On the day that Biziak commenced his
union activities, he went to Delmore and it is Biziak's undisputed testimony
and the undersigned finds that the following conversation took place:
I [Biziak] said, "Now, Mr. Delmore I want you to know I have some
AF of L cards and-a I don't want you to get this as second-hand informa-
tion, I want you to know I'm out for an outside union which is the better
organization to my thoughts," and he [Delmore] says, "Well," he says,
"Well, them cards won't do you much good because-" he says, "-we have a
strong organization here and a strong membership," he says, "You're Just
wasting your time."
The record discloses that from the time of the above mentioned conversation
until he was discharged, Biziak was one of the most active employees of the
respondent who engaged in activities on behalf of the Union. He distributed
handbills of the Union in front of the respondent's plant at various times and
he solicited members for the Union in the plant during lunch periods. Baker
at times was present when Biziak solicited during lunch periods. On one
occasion, according to Biziak, Baker crumpled up a union handbill, threw
it to the floor, and exclaimed, "Just a bunch of racketeers."
Shortly after July 4, 1942, Biziak asked Baker for a raise. It is the uncon-
tradicted testimony of Biziak and the undersigned finds that Baker replied as
follows : "What is the use giving you a raise? . . . Your time is limited, . . .
You are out for the A. F. of L., anyway." ® On the same day and after the above
conversation with Baker, Biziak asked Satele for a raise. Satele replied that
he would, have to see Baker about it and that he (Satele) would give Biziak
an answer in a few days. A few days later Satele spoke to Biziak and, told
him that from the information that he (Satele) had from Baker, Biziak was
incapable of doing his job and that he was not entitled to a raise at that time.
Satele then said, "Well, Joe, . . . you are making pretty good money from what
you started here, you are making 85 cents now . . . You are out for the
AF of L, anyway."10
Sometime in October 1942, Biziak requested Herbert Le Masters and Andy
Rak to cut down their production so that it would not exceed his. At the time
Le Masters and Rak were working on the same machine as did Biziak, but on
different shifts" This was reported by Baker to Satele who then brought
Biziak to the office of E. Lehman, superintendent of the Pneumatic Division.
Other than the fact that Biziak was brought to Lehman's office, the record
8 The above facts and conversations were testified to by Biziak and the undersigned credits
his testimony in this respect Delmore was not called as a witness
8 Sandman testified that he overheard a conversation between Biziak and Baker shortly
after July 4, 1942, during which Baker said, "what's the use of giving you a raise, you won't
be around here long to benefit by it anyway." Baker was called as a witness by the respond-
ent but he did not deny the above remarks attributed to him by Biziak.
10 The above conversation was testified to by Biziak and the undersigned credits his
testimony in this respect. Satele, although called as a witness by the respondent , did not
deny the statements attributed to him by Biziak.
u Le Masters testified that Biziak requested him to cut down production and that Rak told
him (Le Masters ) that Biziak had made the same request to him. Le Masters further testi-
fied that Rak was an employee of the respondent until inducted into the army. Biziak,
although called by the Board in rebuttal, did not deny that he requested Le Masters and Rak
to cut their production.
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicates that no disciplinary action was taken against Biziak over this
charge."
During the course of Biziak's employment with the respondent, Biziak had
at least two arguments with Baker. During one such argument occurring in
the plant during the first week of December 1942, Biziak called Baker "names,"
said he was going to punch him, and threatened to get him after work. That
night Biziak and Sandman followed Baker out of the plant but the record
indicates that no further argument or fight ensued." Baker reported this
incident to Satele who in turn reported it to Harry L. Benson, the labor rela-
tions director at the plant. No action was taken against Biziak over this
charge.
About the middle of February 1943, Baker and Satele went to Biziak and
told him that his production was unsatisfactory. Baker testified that shortly
after this conversation ". . . he [Biziak] started calling me all kinds of
names again, and telling me that he would get me, and beat me up, and
this and that." The undersigned credits Baker's testimony in this respect"
Baker reported this,to Satele and Satele again reported to Benson.
At some undisclosed time during the winter of 1942-1943, Baker during
working hours questioned Biziak concerning charges that had been filed by the
Union with the Board and which were pending at the time. Referring to
charges that the respondent had fostered and dominated the Social Club and
that the respondent had discharged an employee by the name of Philip Kaufman
because of his ,union activities, Baker said to Biziak, "Oh, they are probably a
lot of fakes, . . . When is your louzy Jew Friends' [sic] case coming up?""
Biziak attended several meetings of the Social Club, one of which was held
on or about February 19, 1943.18 At this meeting Biziak raised the question
as to whether or not set-up men were foremen and if they were entitled to
membership in the Social Club. Biziak addressed his questions to a Mr . Molner,
the then President of the Social Club and a set-up man in Department 8. On
February 21 at about 7: 15 a. in., George Sherman, a member of the Social
Club's grievance committee, came to Biziak's machine during working hours
and asked him why he had brought up the question of set-up men at the meeting
on February 19. Biziak told Sherman, in substance, that he was an active
member of the Union, and that he went to the Social Club meeting to learn
what attitude the newly elected officers of the Social Club had toward the
members. Sherman then told Biziak that he would like to see him stop his
activities for the Union and come back to the Social Club. Biziak finally stated
that he might drop his activities for the Union if he could be convinced that
the Social Club was a bona fide labor organization. This conversation lasted
about 20 minutes. About 10 minutes after Biziak's conversation with Sherman
ended, Gus Prymmer, another member of the Social Club's grievance committee,
came to Biziak's machine and also asked him why he had raised the question
of set-up men at the February 19 meeting. Biziak's conversation with Prymmer
" It was Biziak's uncontradicted testimony that shortly after the above incident, Baker
told him to slow down his production.
11 Baker testified concerning the above argument in December . Paul Sorchy, in charge of
all tools for the Pneumatic Division , testified that he overheard Biziak tell Baker that he
was going to punch him "in the nose." Biziak did not deny specifically the above incident
but did deny that he had ever told Baker that he "was going to knock his block off, or any-
thing." ' Biziak admitted that he might .have made such remarks "to the man next to me,"
and that he had some few arguments concerning the Union with Baker when they "really
did get hot ." The undersigned , in view of , the above , credits Baker's testimony in this
respect
14 Employee Vero Milano testified that he overheard Biziak threaten to beat up Baker.
11 Biziak testified to the above conversation without contradiction.
16 Biziak was a member both of the Union and the Social Club.
THE CLEVELAND PNEUMATIC TOOL COMPANY 1449
lasted about 25 minutes During both of the above conversations Biziak con-
tinued with his work. Baker was present in the department during the first
conversation and both Baker and Satele were present during the second con-
versation, but neither Baker nor Satele asked Sherman or Prymmer to leave
Biziak's machine. After Prymmer left Biziak's machine, Satele told Biziak
that Baker had reported to him that he (Biziak) had been talking all morning
and that he (Satele) was going to check Biziak's production. Biziak replied
that Sherman and Prymmer were Social Club "workers" and that he (Biziak)
had not asked them to talk to him it
After Satele talked to him, Biziak, worked for a short time and then went
down to the first floor of the plant to have his work inspected.' While having
his work inspected, Biziak testified without contradiction and the undersigned
finds that he saw Prymmer, James Salabak, Social Club steward for Depart-
ment 7, Baker, and Satele standing around the latter's desk. On the same
day at about 10 a. in., Biziak was informed that the grievance committee of
the Social Club would hold a meeting at about 2 p. in. in order to consider
Biziak's complaints and that Satele would be present. Biziak attended the
meeting. Baker, Satele, Salabak, Prymmer, Sherman, Joseph Kucewicz, chairman
of the grievance committee, and another unidentified member of the committee
were also present at the meeting. At the meeting, Biziak complained. that he
had not received a raise to $1.10 per hour that Baker had told him would be
effective on February 8. Satele then stated that the raise would become effective
on February 22. Other matters, including Biziak's threats to Baker, were
discussed,' after which Baker and Satele left the meeting. Kucewicz (identified
in Biziak's testimony as "Kiebets") then spoke to Biziak concerning his activi-
ties for the Union, saying in substance, that Biziak should cease such activities
since the Social Club had put through a raise for him. Biziak indicated to
the. grievance committee that he might cease his activities for the Union .2"
After the above meeting, Biziak continued soliciting members for the Union
during lunch periods. On about March 1, Kucewicz told Biziak that the Social
Club was going to place a charge against him for soliciting for the Union on
"government property." Biziak replied that he would cease soliciting during lunch
periods if the Social Club stopped soliciting members in the plant during working
hours.21
On March 2, Biziak helped to distribute outside the plant a handbill of the
Union which had reference to some scrap that was made in department 7. On
the next day Biziak started work at 7 a. in., the regular starting time, but the
other employees in the drill press section, with one exception, did not start
work for 10 or 20 minutes. This-work stoppage was in the nature of a protest
against Biziak's union activities and, specifically, his supposed connection with
17 Biziak testified without contradiction to the above conversations with Sherman, Prymmer
and Satele and the undersigned credits his testimony in this respect.
18 At the time of the above conversations, Department 7 was in the process of being moved
from the first to the third floor of the plant. The inspection table and Satele's desk were
still on the first floor while Biziak's machine was on the third floor.
11 Biziad denied that the threats were mentioned at this meeting Satele testified that
he mentioned the threats and that Biziak admitted them. Kucewicz also testified that the
threats were mentioned at the meeting. Although there are a number of discrepancies in
the testimony of Satele and Kucewicz as to the conversation at this meeting, the undersigned
credits their testimony in this respect. The undersigned has sound above that Biziak did
threaten Baker on two occasions.
20 Biziak testified to the conversation with Kucewicz after Satele and Baker had left the
meeting and the undersigned credits his testimony in this respect. gucewicz testified that
everybody at the meeting left at the same time but that he did discuss the Union with Biziak
sometime after the meeting. Satele and Baker , however, each testified tbfit they left the
meeting before the others who were present.
21 Biziak testified to the above conversation without contr4dicti9q,
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the above-mentioned handbill. It appears from the record that both Salabak
and John Sipos, an employee in the drill press section and an active member of
the Social Club, were the instigators of the work stoppage. Salabak and Sipos
went to Benson's office and asked him if it would be possible to have "a sit-down
strike" so they could "get rid of" Biziak as they did not want to work with him
"due to his Union activities." Benson told them that they could not have a
sit-down strike, that they should go back to work, and that he would "check"
into it 22 Sipos also complained to Satele about Biziak's supposed connection
with the above-mentioned handbill.
After the above-mentioned work stoppage and until Biziak was discharged,
the record discloses that Baker maintained an unusual check on Biziak's produc-
tion and on absences from his machine. In this connection, Baker frequently
asked Biziak how many pieces he had made, followed him to the tool crib, and
on one occasion criticized him for taking too long to eat a sandwich.
Biziak worked on March 7 and, after driving several employees to their homes
in his automobile, he arrived at his home at about 8 p. m ' Shortly after 8 p. in.,
Mr. and Mrs. Anthony Serger, friends of Biziak, called at his home and remained
there until about 11: 30 p. in. The undersigned finds that during this time Biziak
did not leave his home or make any telephone calls, except one to a representative
of the Union 24
22 Salabak testified to the above conversation with Benson and the undersigned credits
his testimony in this respect.
22 William Scaglione , an employee in the drill press section , testified that he rode home
with Biziak on the night of March 7 and the undersigned credits his testimony in this respect.
24 Biziak testified to the above facts concerning the night of March 7 . Mrs. Joseph Biziak,
his wife, and Anthony Serger corroborated Biziak 's testimony.
Norris Baker testified that on March 7 at about 9 p. in. a person who identified himself
as Joe Biziak called him at his home on the telephone , threatened that he "was gonna get"
him, and called him "all kinds of sons -of-bitches ." Baker, however, testified that he "couldn't
say it actually was Joe Biziak " Mrs. Norris Baker testified that she heard her husband
identify the person calling as "Joe" and that Baker later told her that it was Joe Biziak who
had called. Mr. and Mrs. Baker testified that Baker received two telephone calls from the
person identified as Biziak , and that thereafter when the telephone rang almost continuously
for about two hours they left the receiver off the hook . Mrs. Baker testified that she had
answered the first telephone call , that on one occasion when the receiver was off the hook
she listened into the receiver to see if anyone was still on the line, and that she heard the
same man whom she had spoken to previously say, "Charley, get me another drink, . . .
I'll get that son-of-a-bitch if it's the last thing I do."
The undersigned has found above that Biziak did not make these telephone calls to Baker
at his home. In making this finding the undersigned has taken into consideration the find-
ings above that on two previous occasions Biziak had threatened to punch Baker or to "get"
him. However, the undersigned notes that the respondent attempted to utilize the testimony
of Mrs. Baker concerning "Charley" by the following sentence in page 11 of its brief.
It appears that momentarily Mr. Biziak forgot that he wasn't supposed to be at
Charley's . . . (located beside Respondent's plant on East 78th Street).
Other than Mrs. Baker's testimony , there is no evidence in the case concerning "Charley."
By placing the above sentence in its brief the respondent intimated that Biziak was at a
saloon called "Charley's" when telephoning Baker. The undersigned believes that, if such
were the case , the respondent would have been able to produce a witness or witnesses in
this connection.
Scaglione definitely testified, however, that he rode home with Biziak on the night of
March 7 . From his observations of Scaglione as a witness , the undersigned believes that
he told the truth in all respects to the best of his recollection. To some extent this veri-
fies Mrs. Biziak's testimony that Biziak arrived home on that night about 8 p. in. It ap-
pears that it required about one hour for Biziak to reach his home, since his shift ended at
7 p. in. Moreover , the undersigned does not find any reason or discrepancy in the evidence as
to why he should discredit the testimony of Mrs . Biziak and Serger concerning the happen-
ings on the night of March 7. They appeared to the undersigned to be truthful and
straight-forward witnesses . Accordingly , the undersigned is convinced that Biziak did not
telephone Baker at the latter's home on the night of March,7.
THE CLEVELAND PNEUMATIC TOOL COMPANY 1451
On the morning of March 8 when Biziak was about to start work at his machine,
Sipos told him that he (Sipos) was going to finish his job. Biziak then stood
beside the machine of employee Stanley Poison and waited for about 15 or 20
minutes for new work. Baker then assigned Biziak to a machine near his
(Baker's) desk. Biziak made a piece on his new job and took it for inspection.
When Biziak got back to his machine, Satele came to him and asked him to go
with him to Benson's office. Upon being asked by Biziak what it was about,
Satele replied, "Well, . .• . you have been threatening Baker here this morning,
and that is enough out of you." Baker was present during the conversation. 21
Baker testified that when he first saw Biziak on the morning of March 8,
he (Baker) said, "You ought to be ashamed of yourself, the way you acted
last night," and that Biziak replied, "It is only the beginning of it, . . . you
haven't heard anything yet." Biziak denied that this conversation took place.
The undersigned does not credit Baker's testimony as to this conversation 28
Baker further testified that when he took Biziak to another machine, Biziak called
him "all kinds of names" and "looked like he was shaking his fist at me."
This was also denied by Biziak. The undersigned credits Biziak's testimony
in this connecton n
Biziak, Satele and Baker then went to Benson's office. When they went into
the office, Satele "winked" at Benson." Baker told Benson that Biziak had
threatened him over the telephone the night before and had threatened him
that morning. Benson asked Biziak if the charges were true. Biziak denied
the charges and called them a "frameup." During this conversation, Biziak
indicated his wish to have the Social Club represent him and asked for the pro-
duction of witnesses to substantiate Baker's story. Biziak's requests were
denied by Benson and Benson discharged him without a further hearing.29
D. Conclusions
The respondent contends that Biziak was discharged for threatening assaults
on employees, for inefficient production through frequent absences from his
2" Biziak testified to the above facts and conversation with Satele and the undersigned
credits his testimony in this respect.
28 As noted above, Biziak was standing beside Poison's machine when Baker approached
him. Poison , in effect, denied that the above conversation occurred by testifying that Baker
said to Biziak, "Come on over here," and that he (Poison) did not hear any argument at the
time. The undersigned credits Poison 's testimony in this respect.
27 In the undersigned 's opinion , if Biziak had actually shaken his fist at Baker , Baker in
his testimony would have used words other than "looked like." Further, employees Scag-
hone, Heckel and Poison all testified that they did not hear or see any argument between
Biziak and Baker on March 8 although their machines were so located that they were in
position to observe such an incident . On cross-examination , it is true , they did admit that
it was possible for an argument to have taken place without their having know ledge of it,
but the undersigned believes that an argument or commotion such as the respondent's wit-
nesses have testified to could hardly have escaped the notice of all three of the above wit-
nesses for the Board . The undersigned credits their testimony concerning the happenings
on the morning of March 8. Both Scaglione and Heckel were members of the Social Club
and it does not appear in the record that any of these three witnesses had ever joined the
Union . Moreover , at the time of the hearing, Heckel was still employed by the respondent
and Scaglione was employed by a subsidiary company of the respondent.
Emil Kovac and Melvin Judson, witnesses for the respondent, both testified that they
observed Biziak and Baker going through motions that looked like an argument but that
they did not hear the alleged argument.
21 Biziak testified that he saw Satele "wink" at Benson and his testimony was not denied
in this respect.
"The above conversation was substantially testified to by Biziak and the undersigned
credits his testimony in this respect. As to this conversation , Benson , Satele and Baker
testified that Biziak did not admit or deny the charges and that Biziak stated that he was
being "framed." Benson denied that Biziak requested the presence of witnesses or repre-
sentation by the Social Club.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machine, and for making unreasonable quantities of scrap. In its answer the
respondent lists further reasons for the discharge and adduced some evidence
in this latter connection . However, in the undersigned 's opinion, this evidence,
regarding an argument or fight between an employee by the name of Prochoska
and Biziak in June or July of 1942 , is inconsequential . All of these minor
charges were refuted by witnesses for the Board but the undersigned does not
undertake to outline the facts or resolve the issues in this connection. The
alleged threats to Baker on March 7 and 8 constitute the main issue in the case.
The undersigned , however, does believe it necessary to comment on the charges
of inefficient production and the making of scrap.
The preponderance of credible evidence definitely establishes the fact that
Biziak was absent from his machine or wasting time during working hours far
less than many other employees . For example , it is the undisputed evidence
that Delmore spent considerable time during working hours taking bets from
employees on horse races and. soliciting - employees for membership in the Social
Club. The , Board's case contains other undenied testimony to the effect that
set-up men and ordinary employees solicited and carried on other business for,
the Social Club during working hours without interference by foremen or other
officials of the respondent . It is undisputed that Biziak habitually remained
at his machine and worked until quitting time when it was the custom for
employees to stop work five or ten minutes early in order to put tools away and
clean up. Some of the respondent 's witnesses testified that at times Biziak•
solicited for and discussed the Union during working hours. Granting this to
be true, nevertheless there is no showing that such solicitation was prohibited
by any recognized rule of respondent , and, in fact , there is ample evidence that
respondent knew , of and permitted solicitation by employees for the - Social
Club during working hours.
With respect to Biziak's alleged inefficient production , the respondent sub-
mitted in evidence copies of its production records for the period from 12/1/42
through 3/8/43 for Biziak and some few other employees doing the same jobs
with the same or lower wage classification. Upon comparison , it does ' appear
that Biziak's production was at times lower than that of other employees, espe-
cially during December 1942, and during the middle of February 1943. Other-
wise, Biziak 's production appears to equal or exceed the production of the other
employees and, in fact , on January 4 and 0 his production exceeded that of an
employee with a two grade higher wage classification . Moreover , Satele testi-
fed that he approved Biziak's raise to $1.10 per hour in February 1943, for the
reason that Biziak's production on a job called "1-BW" was at times "very good."
The production records of respondent show that Biziak equaled or exceeded the
production of other employees on this particular job except on a very few
days.
With respect to the respondent 's contention that Biziak made unreasonable
quantities of scrap, the undersigned can only find definite evidence ' to sub-
stantiate this charge in one instance , namely a memorandum dated 1115/42 io
Benson from Satele referring to 25 pieces of scrap made by Biziak . There is
evidence in the case indicating that on at least one occasion other employees
made more scrap than the scrap mentioned above in Satele's memorandum.
It is undisputed that both Baker and Satele were hostile to the Union and
had impliedly warned Biziak in July 1942, that he would be discharged because
of his union activities . These statements of Baker and Satele concerning the
Union, together with other derogatory statements of foremen and set-up men
found herein , the open solicitation for membership in the Social Club by em-
ployees and set-up men during working hours, and the posting of the Social
Club's handbills on the respondent 's bulletin boards when in at least one
THE CLEVELAND PNEUMATIC TOOL COMPANY 1453
instance the respondent denied the Union the right to post handbills, all disclose
a definite policy of the respondent to favor the Social Club and discourage mem-
bership in the Union.
The grievance committee meeting of the Social Club in February 1943, and
Biziak's subsequent wage increase show a determined effort to stop Biziak's
union activities. Although Biziak had indicated at the grievance committee
meeting that he would cease his union activities, he continued his solicitations
and on March 2 he dstributed handbills for the Union. Because this particular
handbill mentioned scrap made in Department 7, certain above-mentioned mem-
bers of the Social Club instigated a work stoppage in protest against Biziak's
union activities and against working with Biziak. These members of the Social
Club brought their complaint to the attention of Satele and Benson, the labor
relations director, and Benson told them that he would "check" into the matter.
After this incident and until his discharge, the record conclusively shows that
Biziak's production and absences from his machine were under constant sur-
veillance by both Baker and Satele. The record further shows that such
surveillance was extraordinary. The pattern of these events proves, in the
undersigned's opinion, that ,the respondent during this period of time was
waiting for an excuse to discharge Biziak. This is confirmed by documentary
proof in the form of a memorandum dated 2/26/43 to Benson from Satele in
which Satele commented on Biziak's production. This memorandum naturally
presents the question of why Satele would bring an employee's production record
to the attention of a labor relations director rather than to the attention of
the plant superintendent who has charge of production. The logical answer to
this question is obvious. Benson undoubtedly decided at the time that Biziak's
production record did not furnish sufficient cause for a discharge.
Assuming that Biziak had threatened Baker on the night of March 7 and
on the morning of March 8, nevertheless the undersigned believes that the
facts in the case still show that the respondent was motivated in the discharge
by Biziak's union activities and that the alleged threats merely furnished an
excuse for the discharge. It is to be noted that the undersigned has found
above that Biziak on two previous occasions threatened Baker and that those
threats were brought to Benson's attention shortly thereafter. It does not
appear that any action whatsoever was taken by the respondent against Biziak
on these occasions. Moreover, the fact that only a cursory investigation of the
alleged threats was made by Benson at the time of the discharge is also significant.
Accordingly, the undersigned finds that in discharging Biziak on March 8, 1943,
the respondent violated Section 8 (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES IIPON 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. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor
practices, it will be recommended that it cease and desist therefrom, and that
it take certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the respondent actively engaged in illegally
assisting the Social Club, by solicitation of its employees in the Club's behalf
559015-44-vol. 53-93
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and by disparaging the Union. It appears that the respondent and the Social
Club were at the time of the hearing operating under an agreement wherein the
Social Club is recognized by the respondent as. the exclusive bargaining repre-
sentative for its production and maintenance employees. In order to'effectuate
the policies of the Act, the undersigned will recommend that: (1) in the event
the contract has already expired, the respondent refrain from extending or
renewing it and from recognizing the Social Club as the exclusive representative
of any of its employees until the Social Club shall have been certified as, such
by the Board, and (2) in the event 'the contract is' presently in force, the
respondent, at its expiration date refrain from extending or'renewing it and from
further recognizing the Social Club as 'the exclusive representative" of its em-
ployees until the Social Club shall have been certified as such by the Board.
The undersigned has found that the respondent discriminated in regard to
the hire and tenure of employment of Joseph Biziak. The undersigned will
recommend therefore that the respondent offer immediate and full reinstatement
to Biziak to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and' that' the respondent make
him whole for any loss of pay he 'has' suffered by `reason 'of the respondent's
discrimination against him, by payment to him of a sum of money equal to that
which he normally would have earned as wages from the date of such discrim-'
ination to the date of the offer of reinstatement, less his net earnings 30 during
said period. As stated above, the date of said discrimination was March 8, 1943.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Association of Machinists, District #54,, and the United
Social Club and Employees' Association, are labor organizations,, within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Joseph.
Biziak, and thereby discouraging membership, in a. labor organization, 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 exer-
cise 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.'
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, The Cleveland Pneumatic Tool Com-
pany, and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
30 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 respondent's
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. It. 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.
a
THE CLEVELAND PNEUMATIC TOOL COMPANY 1455
(a) Discouraging membership in International Association of Machinists,
District #54, or any other labor organization of its employees, by discharging
or refusing to reinstate any of its employees, or in any other manner discrimi-
nating in regard to their hire or tenure of employment, or any term or condition
of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Joseph Biziak immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other
rights or privileges ;
(b) Make whole Joseph Biziak for any loss of pay he has suffered by reason
of the respondent's discrimination against him, by payment to him of a sum o€
money equal to that which he normally would have earned as wages from the
date of the discrimination to the date of the respondent's offer of reinstatement,
less his net earnings 31 during said period ;
(c) In the event that the contract between the respondent and the Social
Club has already expired, refrain from renewing it and from recognizing the
Social Club as the exclusive representative of any of its employees until the said
Social Club shall have been certified as such by the Board ; in the event that
the contract between the respondent and the Social Club or any renewal, sup-
plement or modification thereof be presently in existence, refrain, at its expira-
tion date, from renewing or extending it or from recognizing the said Social
Club as the exclusive representative of any of its employees until the said Social
Club shall have been certified as such by the Board ;
(d) Immediately post in conspicuous places in and about its plant at Cleve-
land, Ohio, and maintain for a period of at least sixty (60) consecutive days
from the date of posting, notices to its employees stating: (1) that the re-
spondent will not engage in the conduct from which it is recommended that it
cease and desist in paragraph 1 (a) and (b) of these recommendations; (2)
that the respondent will take the affirmative action set forth in paragraph 2
(a), (b) and (c) of these recommendations and (3) that the respondent's em-
ployees are free to become or remain members of International Association of
Machinists, District # 54, and that the respondent will not discriminate against
any employee because of membership or activities in that organization ;
(e) File with the Regional Director for the Eighth Region on or before ten
(10) days from the receipt of this Intermediate Report a report in writing
setting forth in detail the manner and form in which the respondent has com-
plied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of the
31 See footnote 30, supra.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board , Rochambeau Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof . As further provided in said Section 33, should any party desire per-
mission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10 ) days from the date of an order trans-
ferring the case to the Board.
Dated September 25, 1943.
JOHN H. EADrE,
Trial Examiner.