The Iron Fireman Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 26, 1946

69 N.L.R.B. 19 (N.L.R.B. 1946)

In the Matter of THE IRON FIREMAN MANUFACTURING COMPANY and
PORTLAND AIRCRAFT WORKERS, LOCAL 737
Case No. 19-C-1407.-Decided June 26, 196
Mr. Erwin A. Peterson, for the Board.
Messrs. David L. Davies and Richard Devers, of Hart, Spencer,
McCulloch and Rockwood, of Portland, Oreg., for the respondent.
Messrs. M. A. Lovay and N. Nicholson, of Portland, Oreg., for
I. A. M.
Mr. Roy J. Jones, of Portland, Oreg., for I. B. E. W.
Mr. Nathan Saks, of counsel to the Board.
DECISION
AND
ORDER
On May 13, 1946, Trial Examiner Wilson 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 therefrom and take certain
affirmative action, as set forth in a copy of the Intermediate Report
attached hereto. No exceptions to the Intermediate Report have
been filed.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, except insofar as they are inconsistent with our findings,
conclusions, and order hereinafter set forth.
Although stating his opinion that, strictly construed, the alleged
closed-shop provision in the contract between the respondent and the
I. B. E. W. did not, in fact, create a closed shop, the Trial Examiner
treated it as such, in accordance with the interpretation which appears
to have been placed thereon by the parties to the contract and at the
hearing. Accordingly, in arriving at his conclusion that by its dis-
charge of Adeline Kirchem on November 14, 1945, and its failure
thereafter to reinstate her, the respondent discriminated in regard
69 N. L. R. B., No. 4.
19
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to her hire and tenure of employment, thereby discouraging mem-
bership in the I. A. M. in violation of Section 8 (3) of the Act, the
Trial Examiner based his result on the application of the Rutland
Court 1 doctrine to a closed-shop contract. We agree, with the Trial
Examiner's conclusion that the discharge of Adeline Kirchem con-
stituted a violation of Section 8 (3) of the Act. However, we are of
the opinion that this conclusion is properly premised upon the finding
which we make, that the alleged closed-shop provision did not, in fact,
create a closed shop, and hence, cannot constitute a defence to the dis-
criminatory discharger
The alleged closed-shop provision in question provides that :
All new employees who are employed by the Employer shall be
given a trial period of thirty days or less. If found satisfactory
at the expiration of thirty days, they shall make application to
join the Union.
It is clear that the clause requires an employee found satisfactory
at the expiration of his 30-day trial period to make application to
join the Union ; but there is nothing that states he must become a
member of the Union, either at that time or at any other time. Under
ordinary rules of construction, the act of making application to join
the Union at the end of his 30-day trial period fulfills an employee's
obligation under the clause, and it is immaterial whether or not his
application is favorably acted upon and he is accepted into member-
ship in the Union. Moreover, the clause lays down no requirement
that an employee must remain a member of the Union during the life
of the contract, or for any length of time. Accordingly, there is a
fatal omission from the clause of the two essential requirements for a
closed shop : (1) that an employee must become a member of the
contracting union; and (2) must retain such membership during the
life of the contract, as conditions of employment. In view of the
stringent requirements of closed-shop provisions, it is not too much to
require that the parties thereto express the essentials of such provi-
sions in unmistakable language.
As found by the Trial Examiner, the respondent had knowledge
on and prior to November 14, 1945, the date of the discharge, that the
I. B. E. W. was requesting the discharge of Adeline Kirchem because
she was a member of the I. A. M., and because it believed that she was
active in seeking members for the I. A. M. Accordingly, the respond-
ent, by such discharge, not only discouraged membership in the
I. A. M., but as a necessary consequence also encouraged membership
in the I. B. E. W., in violation of Section 8 (3) of the Act, and the
3 Matter of Rutland Court Owners , Inc., 44 N. L. R. B. 587.
$ Under this view it becomes, of course , unnecessary to apply the Rutland Court doctrine.
THE IRON FIREMAN MANUFACTURING COMPANY 21
alleged closed-shop provision was not effective to bring the discharge
within the protection of the proviso to Section 8 (3) of the Act.
Moreover, even if it be assumed that the clause in question was
sufficient to create a closed shop, we are of the opinion that the dis-
charge was nevertheless discriminatory within the meaning of Sec-
tion 8 (3) of the Act. The record shows that the discharged em-
ployee commenced her employment on October 22, 1945, and that she
was discharged less than 30 days later on November 14, 1945, at the
request of the I. B. E. W. for the stated reason that she had not been
accepted as a member of the I. B. E. W., which automatically pre-
vented her from being in good standing in the I. B. E. W. By its
express terms, the clause in question requires an employee to make
application to join the I. B. E. W. only at the expiration of the 30-day
trial period. Obviously, therefore, there could be no obligation to
become a member of the Union during the 30-day trial period, and
an employee's failure to do so prior to the expiration of the 30 days
could not validly constitute a basis under the clause either for a request
of discharge or a discharge.
We find, therefore, for the reasons set forth above, that by its
discharge of Adeline Kirchem on November 14, 1945, and its failure
thereafter to reinstate her, the respondent discriminated in regard
to her hire and tenure of employment, thereby discouraging member-
ship in the I. A. M. and encouraging membership in the I. B. E. W.
in violation of Section 8 (3) of the Act.
ORDER
Upon 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 Iron Fireman Manufacturing
Company, Portland, Oregon, and its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Portland Aircraft Workers, Local
737, affiliated with the International Association of Machinists, or any
other labor organization of its employees, or encouraging membership
in International Brotherhood of Electrical Workers, Local 48, affil-
iated with the American Federation of Labor, or any other labor
organization of its employees, by discharging or refusing to reinstate
any of its employees.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Adeline Kirchem immediate and full reinstatement to
her former or a substantially equivalent position, without prejudice
to her seniority and other rights and privileges;
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole Adeline Kirchem for any loss of pay she may have
suffered by reason of the respondent's discrimination against her by
payment to her of a sum of money equal to the amount which she
normally would have earned as wages from November 14, 1945, the
date of her discriminatory discharge, to the date of the respondent's
offer of reinstatement, less her net earnings during said period;
(c) Post at its Teeple plant at Portland, Oregon, copies of the notice
attached to the Intermediate Report marked "Appendix A." 3 Copies
of said notice, to be furnished by the Regional Director for the Nine-
teenth Region, after being duly signed by the respondent's representa-
tive, shall be posted by the respondent immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days there-
after in 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 any other material;
(d) Notify the Regional Director for the Nineteenth Region in
writing, within ten (10) days from the date of the receipt of this
Order, what steps the respondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. Erwin A. Peterson, for the Board.
Messrs. David L. Davies and Richard Devers, of Hart, Spencer, McCulloch
and Rockwood, of Portland, Oreg., for the Respondent.
Messrs. M. A. Lovap and N. Nicholson, of Portland, Oreg., for I. A. M.
Mr. Roy J. Jones, of Portland, Oreg., for I. B. E. W.
STATEMENT OF THE CASE
Upon a charge duly filed on November 21, 1945, by Portland Aircraft Workers,
Local 737, affiliated with International Association of Machinists, herein called
I. A. M., the National Labor Relations Board, herein called the Board, by its
Regional Director for the Nineteenth Region (Seattle, Washington), issued
its complaint dated March 12, 1946, against The Iron Fireman Manufacturing
Company, Heating Control Division,' 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, notice of hearing, and the charge were duly
served upon the Respondent, I. A. M., and International Brotherhood of Elec-
trical Workers, Local 48, A. F. L, herein called I. B. E. W.
s Said notice, however, shall be, and it hereby is, amended by (1) striking from the first
paragraph thereof thewords "The Recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order," and (2) adding to the second paragraph
thereof between "or any other labor organization of our employees," and "by discharging
or refusing to reinstate any of our employees," the words "encourage membership in In-
ternational Brotherhood of Electrical Workers, Local 48, affiliated with the American
Federation of Labor, or any other labor organization of our employees "
' At the hearing, upon motion of the Board, made without objection, the Board was
allowed to amend all the papers in this case to show the correct name of the Respondent
as shown in the caption hereon.
THE IRON FIREMAN MANUFACTURING COMPANY 23
With respect to the unfair labor practices, the complaint alleged in substance
that (1) on or about November 14, 1945, the respondent discharged Mrs. Adeline
Kirchem and at all times thereafter has refused to reinstate her, thereby dis-
criminating in regard to her hire and tenure of employment, and (2) that by said
discharge and refusal to reinstate said employee the respondent interfered with,
restrained, and coerced its employees
On or about March 22, Respondent filed its answer in which it- admitted cer-
tain allegations of the complaint but denied that it had committed any unfair
labor practices, and affirmatively alleged that Kirchem had been discharged at
the request of I B. E. W. in accordance with the terms of the collective bar-
gaining agreement between the respondent and the I. B. E W.
Pursuant to notice`a hearing was held in Portland, Oregon, on March 26 and
27, 1946, before the undersigned, the Trial Examiner duly designated by the
Chief Trial Examiner. The Board and the Respondent were represented by
counsel and I. B. E. W and I A. M. by union officials. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. At the close of the Board' s case,
the Respondent's motion to dismiss the complaint for lack of proof was denied.
A similar motion made at the end of the hearing was taken under advisement
and is hereby denied. At the close of the hearing, the Board's motion to con-
form the pleadings to the proof was allowed without objection. The Respond-
ent and the Board argued orally at the close of the hearing and the Respondent
filed a brief with the undersigned thereafter.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FAUF
1. THE BUSINESS OF THE RESPONDENT
The Iron Fireman Manufacturing Company is an Oregon corporation, having
its principal office and place of business at Portland, Oregon, where it operates
two plants. At the plant involved in this hearing, herein called the Teeple
plant, Respondent is engaged in the production of electrical controls for use
In connection with heating equipment. It annually uses in excess of $250,000
worth of raw materials, a substantial portion of which is obtained from outside
the State of Oregon. The Respondent's annual sales are in excess of $250,000
and the majority of the articles produced is shipped out of the State of Oregon.
The respondent acknowledges that it is engaged in commerce within the inean-
ing of the Act.
II. THE ORGANIZATIONS INVOLVED
Portland Aircraft Workers, Local 737, affiliated with the International Asso-
ciation of Machinists, and International Brotherhood of Electrical Workers,
Local 48, affiliated with the American Federation of Labor, are labor organiza-
tions admitting to membership employees of the Respondent.
III THE UNFAIR LABOR PRACTICES
A. The discharge of Adeline Kirchem
1. The facts
As stated by counsel for the respondent during oral argument, the witnesses
in the instant proceeding, without exception, strove "honestly to tell the truth"
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the result that the facts are not in conflict and are conceded by all the
parties.
There is no evidence in the record of any prior anti-union activity by the
respondent and, in fact, it appeared that the friendliest of relationships existed
between the respondent and both I. A. M. and I B. E. W.
The respondent operates two factories in Portland at one of which, known as
plant No. 1, it .has had continuously since 1940, at least, labor agreements with
I. A. M. At its other plant, known as the Teeple plant, L. R, Teeple Company
had an agreement with I. B. E. W. in 1945. By agreement, dated July 26,
1945, the Respondent leased the Teeple plant from L R. Teeple Company and
agreed therein to assume and carry out the existing labor agreement between
the lessor and I. B. E. W.2
The agreement between L. R. Teeple Company and I B E. W., assumed by
the Respondent, was by its terms to remain "in effect until November 20,
1945" and contained a typical automatic renewal clause which is of no impor-
tance here. This agreement further provided, in part, as follows :
ARTICLE IX
Employment
Section 1 All new employees who are employed by the Employer shall
be given a trial period of thirty days or less. If found satisfactory at the
expiration of thirty days, they shall make application to join the Union.
Section 2. All new employees so employed by the Employer shall be ad-
vised of this condition of employment.
Section 3. Temporary employees planning to go to school within ninety
days (or following the recognized school vacation period) shall not be
required to apply for membership. However, the company shall notify
such employees before hiring them that they will be expected to pay the
regular monthly Union dues ($150), such payment to be credited toward
the Union initiation fee in case membership is applied for within two years.
In September 1945, immediately after learning that the Respondent had leased
the Teeple plant, I. A. M. investigated the type of work being done therein and
concluded from this investigation that the work of the plant fell within its
jurisdiction. Also commencing in September 1945, Respondent and I. B. E. W.
began negotiations on work classifications and wage scales under the existing
I. B. E. W. agreement.
I. A. M. thereafter commenced negotiations with I. B. E. W., looking toward
the assumption of jurisdiction over the employees of the Teeple plant by I. A. M.
By letter, dated October 22, 1945, 1. A. M. notified the Respondent of these nego-
tiations and made "formal request for the right to represent the employees in
that (Teeple) plant."
Beginning October 18, 1945, the I. A. M. began actively campaigning for
members among the Teeple plant employees by passing out circulars to the
employees at the gate of that plant, after informing Wayne Strong, Respondent's
manager at the Teeple plant, of its intentions so to do and agreeing to furnish
him with copies of the circulars distributed 3 I. A. M. continued to pass out
circulars intermittently at the gate and to deliver them to Strong from that day
until approximately November 30.
Z Contractual relations between L . R. Teeple Company and I . B. E. W. had been con-
tinuous since 1936 or 1937.
S Prior to this time representatives of the I A M. had talked privately with a number
of the employees from this plant but had engaged In no open campaign.
THE IRON FIREMAN MANUFACTURING COMPANY 25
About this same time I. B. E. W. refused to turn over the representation of the
employees of the Teeple plant to I A. M
On October 25, 1945 I. A. M. sent the following letter to T. H. Banfield, Presi-
dent of the Respondent, which was received in due course of the mails :
Dear Mr. Banfield :
The International Association of Machinists claims to represent the majority
of the employees in the Iron Fireman Heat Control division, formerly the
L. R. Teeple Mfg. Co., and now protest any' negotiations with the I. B. E. W.
until such time as a certification by the National Labor Relations Board
through an election of the employees involved determine who shall repre-
sent them in collective bargaining.
We are petitioning the Board to hold an election in the plant to determine
the proper agency to represent the employees at this time and, any negotia-
tions with any organization until that determination is made, will constitute
an unfair labor practice.'
We trust that we may have your cooperation in this matter until that
determination is made.
Very truly yours,
/s/ M. A. LOVAY,
Grand Lodge Representative.
The negotiations between the respondent and I. B E W. continued until
October 23, 1945, when the parties had tentatively arrived at a new agreement
mutually satisfactory to them. The agreement had to be submitted to Banfield
for the respondent's final approval. This was done on October 26, 1945, when
Banfield executed the agreement on behalf of the respondent. Thereafter it
was executed by the I. B. E. W. on or about October 28 by Strong and the re-
spondent's Secretary on the following day. This agreement by its terms was to
go into effect on November 20, 1945, at the expiration of the then existing
contract. It contained provisions identical to those quoted above.
On October 22, 1945, Adeline Kirchem commenced her employment with the
respondent at the Teeple plant' Kirchem had applied for work at the latter
plant sometime in September 1945 and was informed by the respondent that, in
accordance with the terms of its agreement with I. B. E W. at the Teeple plant,
she would have to join the I. B. E. W. within 30 days of her employment.
Kirchem was agreeable to this.
On either the first morning of Kirchem's employment at the Teeple plant or a
day or so thereafter, Roy J Jones, business agent for I. B. E W. approached
Kirchem at her work and told her that, if she wanted to work there, she "would
have to keep her mouth shut and not talk in favor of I. A. M." He then took
from his pocket a few of the I A. M. circulars which had been passed out and
stated that they would have to stop. He concluded by saying that lie knew she
was connected with the I. A. M and working for it in the plant.
Shortly after this conversation, Jones also spoke to Strong stating that
Kirchem had been "talking considerably" and had been creating "quite a bit
of dissension" among the assembly employees and that he, Jones, thought that
this was creating a "bad effect. due to the fact it upset the other employees and
' I. A. M. has never filed the petition for certification with the Board mentioned in its
October 25 letter but filed this charge of unfair labor practice against the respondent on
November 21, 1945.
5 Kirchem had been employed at the respondent's plant No. 1 from May 22, 1944 until
August 24, 1945, when she was laid off in a reduction of force following V-J Day. At
plant No. 1, she was a member of and a shop steward for I. A. M. These facts were known
to both the respondent and I. B. E. W.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
probably cut down production, and also, it stirred up unrest amongst the em-
ployees." According to Jones, Strong was not much interested in this report
because "after all, he (Strong ) thought that that was our problem."
In order to determine within the 30-day probationary period which of the new
employees would be satisfactory to the respondent, it was customary for the re-
spondent to make a routine check of these probationary employees. Such a
check was made at Kirchem and this indicated that she was a good employee
although it was reported that she talked "too much." However, Strong testi
fled that this criticism was not considered of sufficient importance by the re-
spondent to justify bringing it to Kirchem's attention. The respondent at
all times was satisfied with Kirchem as an employee.
During her employment at the Teeple plant, Kirchem did no active proselyting
for I. A. M. except that during lunch hours and rest periods she would answer
questions put to her by fellow-employees regarding the difference in wage rates
an dworking conditions between plant No. 1 under I. A M. and the Teeple plant
under I. B. E. W.
Jones received further complaints from the I B. E. W. shop steward at the
Teeple plant that Kirchem continued to "talk too much and cause dissension."
As a result of these complaints Jones again spoke to Strong a few days prior to
November 14, 1945, and requested the discharge of Kirchem on the ground that
"she would not be acceptable to the union" because she "was talking too much
down there, and that she was causing dissension on the line, and that I had had
these complaints through the steward, and that she would not be acceptable to the
(I. B. E. W.), and that the only thing that I could do, was to ask for her termi-
nation." Strong asked if Jones would "be willing to put that in writing."
Jones agreed to do so, stating that under the terms of the agreement, respondent.
was obligated to discharge Kirchem.
On November 14, 1945, Jones handed Strong the following letter :
IRON FIREMAN MANUFACTURING CO.
Heat Control Division
Attention : Mr. Wayne Strong
GENTLEMEN : This is to inform you that Adeline Kirchem was not accepted
as a member at the last meeting. To explain further, it is necessary in
accordance with our Constitution that new members coming into the or-
ganization be accepted by the members of Local 48 and if they are not
accepted, they are not in good standing in our Union.
Therefore, it is necessary in this case to terminate Adeline Kirchem.
Very truly yours,
[S] ROY JONES, Asst. Business Mgr.
While in Strong's office that afternoon at about 3:30 or 4 p. m. Jones inquired
if the respondent had agreed to terminate Kirchem. Jones stated that under
the terms of the agreement the respondent had no other alternative. Jones then
asked "would it relieve you of any embarrassment if I took this situation into
my hands, since it is strictly a union problem . . ." and offered to hand Kirchem
the documents of discharge. Strong, who had only recently assumed the man-
ager's position, agreed that it would relieve him a great deal and gave Jones the
pay check already made out to Kirchem and also the withholding tax statement.
Thereupon Jones went to Kirchem's place of work where he handed her the
papers and said, "I told you that if anything came up, I would fire you, and
there it is." In answer to Kirchem's request for the reason of, the discharge
Jones stated that her name had been brought up at a union meeting and that
she was not acceptable to the I. B. E. W. With that he departed.
Very soon thereafter, at about 4: 45 p. in., after seeing respondent's superin-
tendent who sent her to see Strong, Kirchem was admitted to Strong's office
THE IRON FIREMAN MANUFACTURING COMPANY 27
and said to Strong, "I guess you know why I am here." Strong agreed and
invited her to sit down. Kirebem then discovered that Jones was also in the room
and turned her attention to him with the result that, while Strong remained
in the room throughout the ensuing conversation, he became an onlooker and
not a participant therein Kirchem asked Jones why she had been fired. Jones
answered that he had told her that she would be tired if she "did not keep (her)
month shut" and that her name had been brought up at a union meeting and
found unacceptable Thereupon Kirchem stated that he was "a damn liar" for
there were 15 or 20 girls who had told her that her name had never been brought
up at a union meeting Jones replied that it was immaterial whether her name
had been brought up or not, that he had still fired her and that was all there was
to it. Kirchem then continued with a statement that Jones thought she was
working for Neil Broady ° but that actually she was not. To this Jones replied
that she "was not fooling him any; that he knew why (she) was there, and he
knew who (she) was working for " After a few more remarks Kirchem departed
without any further words with Strong.
Regarding this conversation Strong testified that that was "the first time
(he) had ever heard her directly accused of organizing for (I. A. M ) in the
shop" and that "there were a number of things said there that I had never heard
before regarding her activities." There can be no question but that at this
time the respondent knew that Kirchem was being discharged at the request of
I. B. E. W. for her supposed activities on behalf of I A M. The undersigned so
finds.
The following day, November 15, Broady called upon Strong protesting the
discharge as an unfair labor practice. During the conversation Broady stated
that Jones had told Kirchem in Strong's office that she was being discharged
for union activities and that she had been "planted" in the shop to organize for
I A. M. Broady inquired if Strong believed that I. A. M had planted Kirchem.
Strong denied that he believed this as be gave Broady credit for better judgment
and added that, if Jones thought that Kirchem had been put in the shop to
organize, then he (Strong) believed Jones was mistaken. However, Strong
refused to reinstate Kirchem and she has not been reinstated as of the time of
the hearing
2 Conclusions
At the hearing the respondent and I . B. E. W. maintained that Article IX of
the I . B. E. W. agreement , quoted above , created a closed-shop. Counsel for
the Board appeared to acquiesce in this interpretation . Under ordinary rules of
construction these clauses do not spell out a closed-shop agreement . Oral testi-
mony indicated that the parties to the agreement considered it to be a closed-
shop although the record is devoid of any evidence of prior practice indicating
such was their interpretation If this agreement is treated in accordance with its
strict interpretation , then it is clear from facts enumerated above that the
discharge was a violation of 8 (3 ). However , as this case was tried by all parties
on the theory that the agreement was a closed -shop, the undersigned will so
treat it.
It is now well established through court and Board decisions that it is an unfair
labor practice violative of Section 8 (3) of the Act for an employer to discharge
an employee , even at the request of a union holding a closed -shop contract in the
plant, where the employer knows at the time of the discharge that the dominant
union has requested such discharge because the employee was a member of, or
had been active on behalf of, a rival union in the plant at a time appropriate for
9 Neil Broady was at that time the business agent for I. A M. and had been distributing
circulars at the Teeple plant gate.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a change, or an attempted change, of bargaining representative there. Under such
circumstances the existence of a closed-shop agreement and the fact that the
request for discharge is fair on its face will not protect the employer against an
unfair labor practice charge."
Respondent contends that two of the above elements are lacking in the instant
case, to wit: (1) a lack of activities on behalf of the rival union by the discharged
employee, and (2) a total lack of knowledge on the part of the employer of the
discriminatory basis of the request for discharge prior to the time of that
discharge.
The evidence proved that Kircheiii was a member of I. A. M., that she was not
actively proselyting on its behalf and that her activities in that regard had been
limited to answering questions by her fellow employees concerning differences
in pay and working conditions between plant No 1, under an I. A. M. contract
and the Teeple plant under an I B E W contract. Although, in fact, this
activity was minor, the evidence also proved that I. B. E. W. considered it of suffi-
cient import to request Kirchem's discharge. The fact that I. B E W was in
error as to the extent and importance of her activities does not lessen the dis-
crimination practiced against Kirchem There is no doubt that the real reason
for the demand of I. B . E. W. that Kirchem be discharged was her membership
in, and activities on behalf of, I. A. M and the undersigned so finds.
Nor can there be any doubt that the respondent knew, at least from the con-
versation on November 14 between Kirchem and Jones in Strong's presence,
the true and illegal reason for her requested discharge. The respondent admits
having such knowledge at this time but contends that this knowledge was gained
subsequent to the actual discharge. Hence, according to its theory, the respondent
having no knowledge that Kirchem was being discharged because of her interest
in the rival union, was not guilty of committing an unfair labor practice at the
time she was discharged. Counsel for the Board in turn advanced a theory
that, as the respondent made the business agent of I. B. E. W., who knew the true
reason for the discharge, its agent to effect that discharge, the respondent became
chargeable with the knowledge of its agent. Neither theory is completely sound.
An employer who has once entered into a contract of employment with an
individual and thereafter decides to terminate the agreement owes that individual
the duty of giving him an authoritative notice of discharge. Until such notice
has been given by an authorized representative of the employer, the termination
of the contract cannot be deemed completed. Nor can the respondent contend
that this condition has been fulfilled until it has confirmed the agency of Jones
in this particular instance Besides , promptly upon receiving notice of the re-
spondent's intent, Kirchem commenced searching for an authoritative source for
confirmation of the notice she had received through the business agent of the
I. B. E. W. Within a matter of minutes thereafter, she was in Strong's office on
this mission. What occurred there must be considered a part of the res gestae
of the whole transaction of the discharge.
Assuming, for the moment, that respondent did not know the true facts and
the discriminatory nature of the discharge prior to the conversation in Strong's
office on November 14, the respondent learned them from the conversion which
took place at this time. There can be no doubt of this and the undersigned so
finds Therefore it must necessarily be found that the respondent knew prior
to the completion of the discharge on November 14, 1945, that Kirchem was
7 The Wallace Corporation v. N. L. R, B., 323 IJ S. 248; Matter of Rutland Court Owners,
Inc, 44 N L R B 587 ; 46 N. L It. B. 1040; Matter of Portland Lumber Mills, 64
N L R B 159; Matter of Diamond T Motor Car Company, 64 N. L. R. B. 1225; Matter
of Southeastern Portland Cement Company , 65 N. L. It. B 1; Matter of The Cliffs Dow
Chemical Company, 64 N L It. B. 1419.
THE IRON FIREMAN MANUFACTURING COMPANY 29
being discharged because she was a member of I. A. M. and active on behalf of
that organization.
In addition, the evidence proved that on two occasions, first in late October
and second a few days before November 14 during the period when I. A. M.
was openly campaigning for members, the I. B. E. W. business agent complained
to respondent's manager that Kirchein, a known member of I. A. M., was "talk-
ing too much and causing dissension" among the respondent's employees. A
reasonable man hearing this criticism from the business agent of the contracting
union at a time when its position as the dominant union in the plant was being
challenged concerning a known member of the competing organization, would
reasonably conclude that this phrase, with its well known connotation in labor
circles, meant that Kirchem was talking too much in favor of the rival union
and that this talk was jeopardizing the position of the then dominant union.
Respondent's contention made during the hearing that these criticisms of
Kirchem referred only to idle gossip which interfered with production was effec-
tively disproved by the respondent's own routine investigation and favorable
report on Kirchem as an employee. The respondent is chargeable with the knowl-
edge a reasonable man would have acquired from these circumstances.
The undersigned finds that the respondent had knowledge on and prior to
November 14, 1945, that I. B. E W. was requesting the discharge of Kirchem
because she was a member of I A. M. and because it believed that she was active
in seeking members for I. A. M.
The undersigned therefore finds from all the evidence that by its discharge
of Adeline Kirchem on November 14, 1945, and its failure thereafter to reinstate
her, the respondent discriminated in regard to her hire and tenure of employment,
thereby discouraging membership in I. A. M in violation of Section 8 (3) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent 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 ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in an unfair labor
practice, it will be recommended that it cease and desist therefrom and take
certain affirmative action necessary to effectuate the policies of the Act
It has been found that on November 14, 1945, the respondent discriminatorily
discharged Adeline Kirchem. It will therefore be recommended that the re-
spondent offer Adeline Kirchem immediate and full reinstatement to her former
or substantially equivalent position without prejudice to her seniority or other
rights and privileges, and that the respondent make her whole for any loss of pay
she may have suffered by reason of the discrimination against her by payment
to her of a sum of money equal to that which she normally would have earned
as wages from November 14, 1945, the date of her discriminatory discharge, to
the date of the offer of reinstatement, less her net earnings e during said period.
813y "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 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 earn-
ings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is generally the policy of the Board when an employer discriminatorily dis-
charges an employee, a violation which goes to the "very heart" of the Act itself,
to enter a broad cease and desist order against such employer. However, in this
case, the undersigned is convinced that the employer, although it violated the Act,
has no intentions or desires which threaten discriminatory actions in the future
which would require such a broad cease and desist order and, therefore, such
broad order will not be recommended here.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CoNcLusIoNs of LAw
1. Portland Aircraft Workers, Local 737, affiliated with the International
Association of Machinists, and International Brotherhood of Electrical Workers,
Local 48, affiliated with the American Federation of Labor, are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
Adeline Kirchem, thereby discouraging membership in Portland Aircraft Work-
ers, Local 737, affiliated with the International Association of Machinists, re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
3 The aforesaid unfair labor practices are unfair 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 Iron Fireman Manufacturing Com-
pany, its officers, agents, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in Portland Aircraft Workers, Local 737, affil-
iated with the International Association of Machinists, or any other labor
organization of its employees by discharging or refusing to reinstate any of its
employees
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act :
(a) Offer to Adeline Kirchem immediate and full reinstatement to her former
or substantially equivalent position without prejudice to her seniority and other
rights and privileges ;
(b) Make whole Adeline Kirchem for any loss of pay she may have suffered
by reason of the respondent's discrimination against her by payment to her of
a sum of money equal to that which she normally would have earned as wages
from the date of respondent's discrimination against her to the date of the
respondent's offer of reinstatement, less her net earnings 6 during such period :
(c) Post at its Teeple plant at Portland, Oregon, copies of the notice attached
to the Intermediate Report herein marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Nineteenth Region, after being
duly signed by respondent's representative, shall be posted by the respondent
immediately upon receipt thereof and maintained by it for sixty (60) consecutive
days thereafter in 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 any other material;
(d) File with the Regional Director for the Nineteenth Region on or before
ten (10) days from the date of the receipt of the Intermediate Report, a report
See footnote 8, supra.
THE IRON FIREMAN MANUFACTURING COMPANY 31
in writing, setting forth in detail the manner and form in which the respondent
has complied 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 Director
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 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the 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, Washington 25, 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. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director. As further provided in said Section 33, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of
the order ti .insfei i ing the case to th Board Any party desiring to submit a
brief Su support of the Intermediate Report shall do so within fifteen (15) days
from the date of the entry of the order transferring the case to the Board, by
filing with the Board an original and four copies thereof, and by immediately
serving a copy thereof upon each of the other parties and the Regional Director.
THOMAS S WILSON,
Trial Examiner.
Dated May 13, 1946
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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 discourage membership in PORTLAND AIRCRAFT
WORKERS, LOCAL 737, affiliated with the International Association of
Machinists, or any other labor organization of our employees, by discharging
or refusing to reinstate any of our employees, or by discriminating in any
other manner in regard to their hire or tenure of employment, or any term or
condition of employment, except insofar as said conduct is protected by the
proviso to Section 8 (3) of the Act.
WE WILL OFFER to Adeline Kirchem immediate and full reinstatement
to her former or substantially equivalent position without prejudice to any
seniority or other rights and privileges previously enjoyed, and make her
whole for any loss of pay suffered as a result of the discrimination.
THE IRON FIREMAN MANUFACTURING COMPANY,
Employer.
Dated--------------- By--------------------------------------------------
(Rep resentative ) ( Title)
This notice must remain posted for 60 days from the date hereon, and must not
be altered, defaced, or covered by any other material.