Viking Pump Company

National Labor Relations Board - Board Decisions

Jul 13, 1939

13 N.L.R.B. 576 (N.L.R.B. 1939)

In the Matter Of VIKING PUMP COMPANY and LODGE 1683, AtiIAL-
GAMATED ASSOCIATION OF IRON, STEEL , AND TIN WORKERS OI' NORTH
AMERICA, THROUGH THE STEEL WORKERS ORGANIZING COMMITTEE,
AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
(FORMERLY COMMITTEE FOR INDUSTRIAL ORGANIZATION)
Case No. C-797.-Decided July 13, 1939
Rotary Pump rlanufacturtng Industry-Interference, Restraint, and Coercion:
threats to close plant if employees joined union ; announced refusal to sign
any contract with union ; coercing employees to form inside bargaining com-
inittee under threat to close plant; surveillance of union meeting-Discrimina-
tion: discharges for union membership and activity sustained as to three em-
ployees ; discharge for having given testimony under the Act, sustained as to one
employee-Reinstatement Ordered: discharged employees-Back I'ay: awarded.
Mr. Hyman Abraham Schulson and Mr. Lee Loevinger, for 'the
Board.
Newman and Newman, by Mr. J. B. Newman, and Mr. G. F. New-
man, of Cedar Falls, Iowa, for the respondent.
Mr. Roman Beck, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Steel Workers
Organizing Committee, herein called S. W. O. C., on behalf of Lodge
1683, Amalgamated Association of Iron, Steel, and Tin Workers of
North America, herein called the Amalgamated, the National Labor
Relations Board, herein called the Board, by the Regional Director for
the Thirteenth Region (Chicago, Illinois), issued its complaint dated
April 16, 1938, against Viking Pump Company, Cedar Falls, Iowa,
herein called the respondent, alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
merce 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.
13 N. L. R. B., No. 65.
576
VIKING PUMP COMPANY 577
The complaint charged in substance that the respondent: (1) dis-
charged Ferris Aldrich and Harold Poulson 1 because they joined
and assisted the Amalgamated; (2) urged its employees not to join
the Amalgamated, threatening to close its plant if the men disregarded
the admonition; (3) suggested the formation of a bargaining com-
mittee composed solely of the respondent's employees; and (4) by
other acts interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
The complaint and accompanying notice of hearing were duly
served upon the respondent and the S. W. O. C. On April 22, 1938,
the respondent filed its answer to the complaint, in which it denied
the commission of the unfair labor practices charged, and affirnia-
tlvely alleged that Poulson and Aldrich had repeatedly been guilty
of insubordination and other misconduct and were laid off when a
decrease in the respondent's business made it necessary for the re-
spondent to reduce its force.
Pursuant to notice, a hearing was held at Cedar Falls. Iowa, on
April 28, 29, and 30, and on May 3 and 4, 1938, before Horace A.
Ruckel, the Trial Examiner duly designated by the Board. The
Board and the respondent were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the
issues was afforded the parties. Numerous motions and objections
to the admission of evidence were made and ruled upon at the hear-
ing. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. Except as
noted below, the rulings are hereby affirmed .2 On May 27, 1938, the
Board, acting pursuant to Article II, Section 37 (c), of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
ordered that the proceedings be transferred from the Thirteenth
Region to the Eighteenth Region (Minneapolis, Minnesota) and
continued in the Eighteenth Region.
On July 24, 1938, the Trial Examiner filed his Intermediate Re-
port,3 copies of which were duly served on the respondent and
S. W. O. C., finding that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1) and (3), and Section 2 (6) and (7) of the
Act, and recommending that the respondent cease and desist there-
from and take certain affirmative action to remedy the situation
1 The complaint was duly amended at the hearing to correct the spelling of his name.
'- In his Intermediate Report, the Trial Examiner struck from the record Board Ex-
hibit 8 and the testimony of Lloyd L . Siglin concerning It. The Intermediate Report
erroneously refers to the exhibit as Board Exhibit 7. For the limited purpose noted in
Section III hereof, that testimony and exhibit will be admitted.
8 On August 4, 1938, the title of the Intermediate Report was corrected by amendment
to conform with the title of this proceeding.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brought about by the unfair labor practices. Exceptions to the In-
termediate Report were thereafter filed by the respondent.
On August 22, 1938, the respondent filed a motion with the Board
for leave to reopen the record to introduce evidence that it had laid
off certain production employees since the close of the hearing because
of adverse business conditions. The motion is hereby denied. The
proffered evidence relates solely to compliance with the recommenda-
tions of the Intermediate Report. "We cannot, as a matter of ad-
ministration of the Act, reopen the record to receive testimony upon
the constantly changing details of compliance with or performance
of the Board's order." 4
Further charges and amended charges having been filed by
S. W. O. C. on behalf of the Amalgamated, the Board, pursuant to
Article II, Section 36, of National Labor Relations Board Rules and
Regulations-Series 1, as amended, issued an order dated October 11,
1938, reopening the record for further evidence, and authorizing the
issuance by the Regional Director for the Eighteenth Region of an
amended complaint and a notice of further hearing. Thereafter,
the Board, by the Regional Director for the Eighteenth Region, issued
its second amended complaint 8 dated November 28, 1938, alleging
that the respondent discharged and refused to reinstate Lloyd L.
Siglin, its janitor, because he joined and assisted the Amalgamated,
and gave testimony tinder the Act against the respondent at the
aforesaid hearing.
The second amended complaint and accompanying notice of hear-
ing were duly served upon the respondent and S. W. O. C. There-
after, the respondent filed its answer to the second amended com-
plaint, denying the unfair labor practices charged, and affirmatively
averring that Siglin was discharged for misconduct which he had
disclosed for the first time in his -testimony. The answer further
alleged that after his discharge, the respondent rehired Siglin pur-
suant to an agreement approved by the Board, and thereafter laid
him off when a curtailment in business made a reduction in force
necessary.
Pursuant to notice, a hearing was held at Cedar Falls, Iowa, on
December 5, 1938, before Thomas S. Wilson, the Trial Examiner
duly designated by the Board. The Board and the respondent were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
' Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9
N. L. R. B . 219. See also National Labor Relations Board v. American Potash and
Chemical Corp ., 98 F. 1(2d) 488, at pp. 492 and 493; cert. den., U. S. Sup Ct., February
27, 1939 , 306 U . S 643; National Labor Relations Board v. Bcles-Coleman Lumber Co. 96
F (2d) 197; National Labor Relations Board v. Remington Rand, Inc, 94 F (2d) 862, at
pp 869-70.
s An amended complaint dated November 23, 1938, was issued which was substantially
similar to the second amended complaint.
VIKING PUMP COMPANY 579
introduce evidence bearing upon the issues was afforded the parties.
During the hearing the Trial Examiner made rulings on motions and
objections to the admission of evidence. The Board has reviewed the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
Thereafter the Trial Examiner filed his Intermediate Report dated
January 27, 1939, copies of which were duly served on the respondent,
the S. W. O. C., and the Amalgamated, in which he found that the
respondent had committed unfair labor practices affecting commerce
within the meaning of Section 8 (1), (3), and (4) and Section 2 (6)
and (7) of the Act, and recommended that the respondent cease and
desist from such unfair labor practices and reinstate Siglin as its
janitor with back pay. Thereafter the respondent filed exceptions
to this Intermediate Report and submitted a brief in support of its
exceptions. At the close of each hearing the Trial Examiner in-
formed the parties of their right to apply for oral argument before
the Board in Washington, D. C., but none of the parties availed itself
of that opportunity. The Board has considered the exceptions filed
by the respondent to both Intermediate Reports and in so far as
they are inconsistent with the findings, conclusions, and order' set
forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a Delaware corporation having its office, foun-
dries, and manufacturing plant at Cedar Falls, Iowa. It is engaged
in the business of manufacturing rotary pumps and is among the four
largest enterprises of its kind in the United States. Rough- castings
are prepared in the respondent's foundries and are then delivered
to its nearby main plant where they are machined and assembled with
the fixtures into the finished rotary pumps.
During 1937 the respondent purchased iron, brass, alloys, engines,
bolts, and fittings of an aggregate value of approximately $350,000.
About 95 per cent of these raw materials were transported to the
respondent's plants from points outside the State of Iowa. The
value of the respondent's finished products manufactured during
1937 aggregated approximately $1,350,000, of which 94 per cent were
transported to States other than Iowa. The finished products are
sold through sales offices which the respondent maintains in the
following cities: New York City; Chicago, Illinois; Cleveland, Ohio;
Los Angeles, California; Milwaukee, Wisconsin; Minneapolis, Min-
nesota; and Indianapolis, Indiana.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Lodge 1683, Amalgamated Association of Iron, Steel, and Tin
Workers of North America, is a labor, organization affiliated with the
Committee for Industrial. Organization, admitting to membership
employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Prior to April 1937, preliminary organizing on behalf of the
Amalgamated took place in the respondent's plant. On April 28,
1937, an-Amalgamated membership meeting took place. The Amal-
gamated membership campaign soon came to the attention of the
respondent. On May 4, 1937, at the direction of the respondent, the
employees of the small-pump department met during regular work-
ing hours in the main plant. Harry Petersen, the foreman of that
department, addressed the men. The gist. of Petersen's talk is con-
tained in the following excerpt from the uncontradicted testimony
of Ferris Aldrich, an employee :
This union business has got to-has gone far enough . . . Mr.
Wyth [the respondent's president] . . . is going to close, the
shop down if this union business continues . . . Mr. Wyth
wouldn't recognize an outside labor organization . . . before Mr.
Wyth would recognize any outside organization . . . he would
go home and sit on his front porch and lock the plant up.
Carl M. Hansen, another employee of the small-pump department,
without contradiction quoted Petersen as having said :
... It seems that the C. I. O. is like a live spark that has
been touched off, almost like wildfire . . . that we could stay in
the union or drop out, but he would advise us to drop out of the
union and to go down to Mr. Wyth's office and talk it over with
him. . . . He said there was a possibility of the plant being
closed if we didn't.... He said that we would be laid off,
turned out on the street.... He told us that there would be a
meeting called the next day down in the stock room, downstairs,
and that we should attend that meeting and vote a committee
... to enter into an agreement on wages and hours.
After thus expressing the respondent's hostility to the Amalgamated,
the only outside labor organization then seeking to organize the em-
ployees, Petersen suggested transforming the Viking Aid Society, a
benefit society, into a labor organization and declared that Wyth
VIKING PUMP COMPANY 581
would be willing to recognize the society for the purposes of collective
bargaining. Although Petersen testified at the hearing, he did not
deny the statements attributed to him by Aldrich and Hansen. We
find that he made the statements described above.
The meeting referred to by Petersen in his May 4 address took place
on the following day. At the direction of their foremen, virtually
all the production employees of the main plant and foundries, number-
ing about 200 persons, attended. Many of the foremen were also
present. Foss Gushard, the respondent's superintendent, admitted at
the hearing that he had given permission to hold this meeting on
company time, and stated that its purpose was to permit the men to
decide whether they desired to select their own bargaining committee.
According to Gushard, the organizational activities of the Amalgam-
ated had caused "strife and turmoil" among the men, which this meet-
ing was designed to lessen.c,
Hans Juhl, referred to in the testimony as a "trouble shooter" in
experimental work, acted as the self-appointed chairman of the meet-
ing. When Juhl's right to preside was questioned, he replied that
he had promised not to divulge the identity of the person who requested
him to talk to the men. Juhl informed the employees that the purpose
of the meeting was to select a committee to confer with Wyth regard-
ing wages and hours. Ferris Aldrich quoted Juhl as follows : "This
thing has got to be settled. There has got to be a committee ap-
pointed . . . it had to be done tonight or Mr. Wyth would close the
plant down." Other witnesses corroborated Aldrich's version of Juhl's
remarks. Juhl was not called as a witness, and we find that he made
the remarks described above. None of the supervisory employees
present at the meeting questioned Juhl's right to speak for the respond-
ent. Nor did the respondent later disavow Juhl's statements. We
find that the respondent was responsible for Juhl's announcement to
the employees that Wyth threatened to close the plant if they did not
form, their own bargaining committee.7
Gushard also addressed the meeting. Several witnesses testified
that he said that Wyth would not tolerate an outside organization or
recognize the Committee for Industrial Organization, and that Gush-
ard suggested that the employees form their own bargaining com-
mittee. Poulson, an employee, gave the substance of Gushard's
° Frank Cole , the foreman of the machine shop, testified that : "There was dissatisfac.
tion, yes, there was something wrong They [ the employees ] were not satisfied with
the wages , and our attitude or our position or anything ; so to get that squared up, to
get the men satisfied , and to get them back to normal , the meeting [of May 5, 1937]
was called."
7 Cf. Matter of M. Lowenstein and Sons , Inc., and Bookkeepers ', Stenographers' and
Accountants ' Unaon, 6 N. L. R. B. 216, pp. 232-33; Matter of Regal Shirt Company and
Amalgamated Clothing Workers of America, 4 N. L. R. B. 567, at page 573.
187930-39-vol 13-38
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remarks in the following sentence : "That we had to appoint this
committee and confer with Mr. Wyth or he was going to close, the
shop." John E. Hesner, another employee, testified that Gushard
announced that Wyth "had threatened to close the doors," if the
committee was not immediately selected. Gushard did not directly
deny these statements, but purported to summarize his talk as
follows :
My speech was very short. I believe that I made the statement
that the men had the right to join any organization they saw fit,
that the company could not stop them under the Wagner Labor
Relations Act, and they had the right; and the thing that I was
mainly interested in was that they do something to settle the
strife and turmoil because we could not go on the way things
were.
Gushard had previously testified that the "strife and turmoil" had been
caused by the organizational activities of the Amalgamated. Cole and
Petersen were the only foremen who testified. The respondent did not
examine them in regard to Gushard's statements, nor did it call upon
the other foremen who attended the meeting to affirm or deny that
Gushard threatened that Wyth would close the plant if the bargain-
ing committee was not selected forthwith. The failure of the re-
spondent to corroborate Gushard is not the only circumstance
impelling us to believe the version of his remarks given by the Board
witnesses. The close similarity between Petersen's May 4'address and
the remarks attributed to Gushard by the Board witnesses is another
circumstance that convinces us that Gushard told the men that the
plant would be closed if they did not appoint a bargaining committee.
After Gushard and Juhl finished speaking, the men elected a com-
mittee which thereafter conferred with Wyth. A member of , the
committee, E. F. Kofron, in testifying regarding Wyth's statements
to the committee, said : "He told us . . . if we hadn't had that meet-
ing, he had authority to close the shop"; another member of the com-
mittee, Clausen, testified that Wyth said, "This is the only body I
will deal with, I will not deal with no C. I. 0." Wyth did not testify
and we find that Wyth made the statements above attributed to him.
Several days later the respondent granted a general wage increase
which partially allayed the discontent with the prevailing wage rates.
Following the wage increase, Gushard called the men in the small-
pump department together and told them that he thought that Wyth
had given them a good settlement, urged them to put their shoulders
to the wheel, and admonished them, "You want to always remember
that not always the last man hired is the first man fired." We find
VIKING PUMP COMPANY 583
that the wage increase was but another of the succession of acts
designed to discourage membership in the Amalgamated."
On July 24, 1937, Harold R. Michaelsen, an employee in the small-
pump department, was discharged. He protested to Wyth, who con-
ceded that no fault was to be found with Michaelsen's work but
nevertheless refused to give him a recommendation which did not
include a statement that Michaelsen was a union member. Wyth
added that such a recommendation would not be worth much. In
the course of their discussion, Wyth characterized unions as "rackets"
and union leaders as "racketeers." A few days later Wyth, exact-
ing the promise that Michaelsen would give up membership in the
Amalgamated, rehired him.
In the fall of 1937, Gushard told Wyth that he would like to
know how many of the respondent's employees attended the Amal-
gamated membership meetings. Thereupon Wyth obtained a key to
a real estate office affording a view of Woodmen's Hall where the
Amalgamated held its meetings. Wyth gave Gushard the key to
enable him to observe who attended the Amalgamated meetings.
One night, Gushard admitted himself into the real estate office while
an Amalgamated meeting was in progress. A man in the vicinity,
hearing a noise in the real estate office, reported it to the police who
entered the darkened office and discovered Gushard there. At the
hearing Gushard stated that his purpose in secreting himself in, the
real estate office was:
To see for my own benefit how many of our men actually went
to the meeting. . . . I did not consider it spying. . . It was
information for my own benefit ... I had heard these rumors
that the C. I. O. was becoming strong again. I wanted to know
to prepare myself . . . for any further strife or turmoil in the
shop.
We find that Gushard, with the approval of Wyth, secreted himself
in the real estate office for the purpose of spying upon the respondent's
employees who attended the Amalgamated meeting.
8 Cole gave the following testimony as to the effect of the wage increase :
Q. After the meeting was called and the committee was appointed , after they met with
Mr. Wyth and had the agreement drawn as to the increase in wages and the adjustment
in hours, what then was the condition in the plant?
A. It was very much better, and I figured that the boys "ere fairly well satisfied.
However, there was a little, just a little, feeling-I know I heard one man-I don't know
whether I did or not now-but I think I heard one of the boys say that he thought some
of the boys would have been better satisfied with the C. I. O... . Cf. National Labor
Relations Board v. American Potash & Chemical Corporation, 98 F. (2d ) 488 (C. C. A.
9th, 1938 ) enforcing order in Hatter of American Potash and Chemical Corporation and
Borax & Potash Ww kers' Union No 20181, 3 N L R B. 140 ; certiorari denied, 206 U. S 643.
584 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
We find that by spying upon the Amalgamated meeting and by
the other acts above described the respondent interfered with. re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
B. The discriminatory discharges
1. Ferris Aldrich
After more than 7 years' service with the respondent Ferris Aldrich,
a pump tester, was discharged on August 24, 1937. Upon his dis-
missal he was given a recommendation by Gushard. At the hearing
Petersen, his foreman, admitted that he had not recommended the
discharge and that Aldrich had been a "fair workman." Walter
Olsen, Petersen's predecessor, also testified that Aldrich had done
satisfactory work.
Aldrich was a charter member and the recording secretary of the
Amalgamated. He was also a member of its negotiating and griev-
ance committees, and wore his union button while at work. Early in
July 1937, Petersen warned hint to be very careful of his activities
in the plant because he was under constant surveillance, by ". .
someone in the department going to the office with everything-
everything that this party saw or hears." When Petersen informed
Aldrich of his discharge, the former remarked, ". . . that George
LWyth] had not forgotten this union," Aldrich thereafter asked
Wyth the reason for his discharge, and, according to Aldrich, Wvth
told him his work had been satisfactory, but that business was bad
and that Aldrich knew why business was bad. Aldrich, having dis-
claimed such knowledge, Wyth replied, "Oh, yes you do. You know
why business is bad . . . It all started in the automobile plants and
in the steel mills on account of the C. I. O. The C. I. O. got those
men out on strike. They are not working, so they can't buy .. .
Go over to Deere's [a nearby tractor factory.] They are hiring men.
Go over there and get a job over there, but don't get mixed in any
thing." Wyth further remarked that John L. Lewis had acquired a
home recently and told Aldrich, "You fellows are paying for that."
We find that Wyth made the foregoing statements since he did not
testify in denial of them.
The respondent contends that it discharged Aldrich for miscon-
duct and neglect of duty. The evidence concerning the alleged
neglect of duty is not convincing, especially in view of his long and
satisfactory service record. The only testimony concerning Aldrich's
alleged misconduct related to certain statements attributed to him,
and to an incident involving the alleged concealment of a fellow
VIKING PUMP COMPANY 585
employee's tools. An employee testified that in April 1937 Aldrich
told him that he would lose his job if he did not join the Amalga-
mated. Another employee testified that Aldrich made a similar state-
ment to him. Aldrich denied having made these statements.
Assuming that they were made, we do not believe that the respondent
discharged him for that reason. Frank Cole, the foreman of the
machine shop, testified, "I don't think a threat [that an employee
would lose his job if he failed to join the union] would weigh very
much, and I don't think it did weigh very much." Cole further
testified that from April through August 1937 discussion in the plant
regarding unions was rife, that no company rule forbade the discus-
sion, and that the foremen themselves participated. There is no
evidence that Aldrich was ever reprimanded for having made the
statements that displeased the respondent. Under the circumstances,
we do not believe that the respondent discharged Aldrich because
of the belief that he made the statements attributed to him.
Another employee testified that in April 1937 Aldrich "hid his
tools," but the witness readily admitted that he had always known
their whereabouts, and had recovered them without difficulty.
Aldrich denied having hid the tools. This incident, which is said
to have occurred several months prior to his discharge, impresses us
as a mere afterthought.
We find that the incident relating to the tools and the statements
attributed to Aldrich did not influence the respondent in discharging
him. If, however, we were convinced of the respondent's sincerity
in contending that it discharged Aldrich because of its belief that
lie made statements of the kind attributed to him, we should find
that the discharge for such union activity was discriminatory under
the circumstances. Though the respondent might have forbidden
its men from engaging in any discussion or activity unrelated to
their work on company time, it did not do so. As previously noted,
the supervisory officials themselves spent considerable time during
working hours in voicing opposition to the Amalgamated. Hence,
the mere fact that Aldrich spent part of his time in discussion un-
related to the respondent's business was not the true reason for the
respondent's displeasure. Manifestly therefore, what the respondent
objected to was what Aldrich was reported to have said. However,
his alleged statements to his fellow workmen could only have meant
that they might lose their jobs if the Amalgamated obtained a closed
shop, since he was not a supervisory employee. Statements of that
kind are not unusual during an organizational campaign in a hitherto
unorganized plant, especially when the union's efforts are obstructed
by employer interference such as is shown in this case.
Under the circumstances, especially in the absence of a rule for-
bidding activity unrelated to an employer's business during working
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours, the discharge of an employee for engaging in union activity is
discrimination in regard to his tenure of employment designed to
discourage membership in the union he supports. This discrimination
becomes more apparent when the discharge follows a succession of acts
by the employer designed to destroy the labor organization that the
employee supports and to foist another bargaining agency upon the
men under threats of a shut-down.
We find that the respondent by discharging Aldrich discriminated
in regard to his hire and tenure of employment, thereby discouraging
membership in the Amalgamated, and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
At the hearing Aldrich testified that he had not secured other em-
ployment and desired to be reinstated. From the date of his discharge
until the date of the hearing, Aldrich's earnings were $375.
2. Harold Poulson
Poulson, a machinist , worked steadily for the respondent from 1929
until his discharge on August 25, 1937 . His foreman , Cole, ad-
mitted that he was "a very good" workman, and an inspector of his
work also testified to his proficiency . Poulson was among the founders
of the Amalgamated , and, was conspicuously active in its behalf. He
regularly attended union meetings and was elected to the union office
of "Inner Guard ." Poulson also devoted a great deal of his leisure
time to soliciting membership for the Amalgamated . He wore his
union button at work and his union membership was known to the
respondent 's supervisory officials.
On August 25, 1937 , Poulson's foreman , Cole, gave him the respond-
ent's check for the wages due him with the explanation that he did
so at Wyth's direction and did not know the reason for the discharge.
At the hearing Cole testified that he had not been consulted in regard
to Poulson 's discharge . When Poulson requested Gushard to explain
his dismissal , the latter referred to his refusal to accept a foremanship
on the night shift , an incident that occurred more than 4 months prior
to the discharge . When Cole had offered Poulson the foremanship
he informed him that he was not required to accept the position.
Nevertheless , Gushard referred to this incident at the hearing as a
reason for Poulson 's discharge . Another reason Gushard gave for
Poulson's dismissal was that Poulson 's manner in requesting a wage
increase had offended him. Gushard 's testimony regarding Poulson's
behavior was vague and unconvincing . Gushard , moreover , admitted
that he did nothing about the matter although the request for a wage
increase occurred more than 4 months prior to the discharge. We do
not believe that either of these incidents motivated the respondent in
discharging Poulson.
VIKING PUMP CO âIPANY 587
At the hearing Cole criticized Poulson for having too frequently
left his machine to talk with other employees, but admitted that he
had never reprimanded Poulson. Poulson denied ever having dis-
cussed union affairs in the plant except during waiting periods when
his work did not suffer.9 As has been noted, the respondent per-
mitted its employees to discuss union affairs during working hours.
If Cole felt that Poulson left his work too frequently to engage in
such discussion, it is reasonable to believe he would have cautioned
Poulson. We do not think that the respondent discharged him for
that reason.
As in the case of Aldrich, the respondent produced several em-
ployees who testified that Poulson told them that they would lose
their jobs if they failed to join the Amalgamated. Poulson denied
having made the statements. The circumstances which impel us to
find that the respondent did not discharge Aldrich because of similar
remarks also persuade us that Poulson was not dismissed for that
reason. Further, as we said in relation to Aldrich's case, even if
we were convinced of the respondent's sincerity in contending that
it discharged Poulson because of its belief that he made such state-
ments, we should find that the discharge was discriminatory under
the circumstances.
Wyth and Gushard made statements to Poulson which show that
his union activity was the controlling reason for his discharge.
When Poulson protested to Wyth that he had been treated unfairly,
Wyth told him that he had talked too much about " . . . this thing
that's going on around causing all of these strikes and everything."
When Gushard gave Poulson a recommendation, he informed Poul-
son that he had talked too much to people he thought were his
friends. When the uncontradicted testimony as to these -statements
of Wyth and Gushard is considered in the light of the respondent's
antagonism to the Amalgamated, it is apparent that the respondent
discharged Poulson because of his union activities.
We find that the respondent by discharging Poulson discriminated
in regard to his hire and tenure of employment, thereby discouraging
membership in the Amalgamated and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
At the hearing Poulson expressed a desire for reinstatement. Dur-
ing the period from the date of his discharge until the hearing
Poulson earned $515.50.
9 The record indicated that in the normal course of their work certain employees,
including Poulson, were necessarily idle for short periods of time while waiting for new
work assignments , materials , and tools . Poulson referred to these periods as "waiting
periods,
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Lloyd L. Siglin
Siglin was employed by the respondent in March 1935 as a janitor.
During the hearing on the original complaint, Siglin was discharged
after having testified under subpena as a witness for the Board. The
second amended complaint alleges that the respondent discharged
Siglin because he testified against it and assisted the Amalgamated.
The respondent contends that his testimony disclosed misconduct
rendering him unfit to remain as its janitor and that he was there-
fore discharged.
Siglin's duties as janitor required him to clean the respondent's
office which included a partitioned enclosure known as the directors'
room. This room was used primarily for meetings of the respond-
ent's stockholders and directors, executive conferences, and occasion-
ally by employees seeking to escape the noise of the general office.
No one, however, permanently occupied the room.
About a week prior to the first hearing, Siglin had occasion to
clean the directors' room during the morning following an evening
conference therein between Wyth and Newman, the respondent's at-
torney, who was also an officer of the corporation. Siglin was the
first person to enter the directors' room that morning. The con-
duct for which the respondent claims to have discharged Siglin is
described in the following excerpt from Siglin's testimony :
Q. In cleaning the room did you find anything written on a
scratch pad which you were going to throw out?
A. Yes, I seen some writing.
Q. Did you copy down what you saw?
A. Yes, I did.
Q. What did you do with the original of this copy, Mr. Siglin?
A. I left it lay right where it was at.
Upon the scratch pad had been written, according to Siglin : "Find
something on Poulson and Aldrich." Siglin further testified that
underneath this statement appeared the names of five of the respond-
ent's witnesses. The paper also contained matters irrelevant to this
proceeding.10
10 Since Siglin could not identify the handwriting on the memorandum , his testimony
did not establish that the document had been written by a representative of the re-
spondent. We have not, therefore , given any probative force to the contents of the
memorandum . We find it unnecessary to deteimine whether the failure of Wyth and
Newman to testify in denial of its authorship warrants an inference that it had been
written during their conference in the directors' room At the close of the hearing
counsel for the respondent , while discussing a motion to strike certain matter from the
record that pertained to an abortive settlement conference , parenthetically remarked that
lie never saw the oiiginai of the memorandum about which Siglin had testified and had
never discussed the memorandum with Wytli or any other person. We do not regard this
statement of the respondent's attorney as the equivalent of testimony.
VIKING PUMP COMPANY 589
During the evening of the day on which Siglin testified at the first
hearing, Cole went to Siglin's home and requested Siglin to give him
the factory key." The following morning a conference took place
in the office of the respondent's attorney between counsel for the
Board and representatives of the respondent. At this conference the
respondent refused, to reinstate Siglin as its janitor, but offered to
employ him in another capacity. This proposal was agreeable to
Siglin, but when he reported for work Gushard told him that ar-
rangements for his reinstatement had not yet been made, and in-
formed him that he would be compensated for the delay. After a
few days' idleness, Siglin was given makeshift work by the respond-
ent. After 1 week at this temporary work, Siglin was again dis-
charged, allegedly for lack of work. Prior to this discharge of Sig-
lin, the first hearing in this proceeding had been concluded. We
find that the respondent did not intend permanently to reinstate
Siglin, and that his temporary reemployment was merely designed
to forestall action by the Board while the first hearing was in prog-
ress. We are therefore confronted with the problem of determining
the respondent's motive in discharging Siglin as its janitor.
Siglin had worked for the respondent for several years prior to
his discharge. There is no evidence that his work had ever been un-
satisfactory. In May 1937 Siglin joined the Amalgamated. Soon
thereafter George Wyth warned Siglin not to discuss the Committee
for Industrial Organization in the plant, and threatened to discharge
him if he should disregard the admonition. A few clays prior to
that warning Wyth's son, Robert, who was employed in the re-
spondent's office, had warned Siglin against attending union
meetings.
In its brief, the respondent contends that Siglin's testimony con-
cerning the memorandum discloses either that he was guilty of per-
jury or of "spying" upon its officers. The respondent, however, does
not allege that Siglin committed perjury, nor is there evidence to
support the imputation that his testimony was untrue. The asser-
tion that Siglin spied upon the respondent's officers rests solely upon
Siglin's observation of the statements on the scratch pad.
The situation in which Siglin found himself when he discovered
the scratch pad memorandum does not materially differ from that of
any employee who accidently overhears his employer discuss an
intended violation of the Act. There was nothing confidential in the
nature of Siglin's position. Siglin's discovery of the memorandum
was entirely fortuitous. His disclosure of its contents to Aldrich
"Immediately following Siglin's discharge , Wyth terminated Mrs. Siglin ' s services as
the Wyth' s family laundress and also refused to permit her to continue the laundering of
towels for the respondent
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as well as his subsequent testimony were in keeping with his duty
toward his fellow employees. Section 8 (4) of the Act was designed
precisely for the purpose of protecting an employee against reprisal
for disclosing violations of the Act. That Siglin's testimony was
stricken appears to us to be immaterial.
In view of the respondent's hostility to the Amalgamated and the
warnings given Siglin to refrain from union activity, we are con-
vinced that the respondent discharged Siglin because of its desire to
punish him for his loyalty to the Amalgamated demonstrated by his
testimony against the respondent.
We find that the respondent, by discharging Siglin discriminated
in regard to his hire and tenure of employment, thereby discouraging
membership in the Amalgamated, and that the respondent discharged
Siglin because he gave testimony under the Act. We further find
that by the discharge of Siglin, the respondent interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE,
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent 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. REMEDY
Having found that, the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom. We
shall order the respondent, moreover, to take certain affirmative action
which we deem necessary to effectuate the policies of the Act.
We shall order the reinstatement of Aldrich, Poulson, and Siglin
to the positions from which they were discharged and that the re-
spondent make them whole for any loss of pay they may have suffered
by reason of their respective discharges by payment to each of them
of a sum equal to the amount which he normally would have earned
as wages from the date' of his discharge to the date of the offer of
reinstatement less his net earnings 12 during said period.
'z 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 his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R. B. 440 . Monies
received for work performed upon Federal , State, county , municipal or other work -relief
VIKING PUMP COMPANY 591
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Association of Iron, Steel, and Tin Workers of
North America, Lodge 1683, is a labor organization, within the mean-
ing of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Ferris Aldrich, Harold Poulson, and Lloyd L. Siglin, there-
by discouraging membership in Amalgamated Association of Iron,
Steel, and Tin Workers of North America, Lodge 1683, the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
3. By discharging Lloyd L. Siglin because he gave testimony
under the Act, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (4) of the
Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Viking Pump Company, Cedar Falls, Iowa, and its offi-
cers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Association of
Iron, Steel, and Tin Workers of North America, Lodge 1683,' or any
other labor organization of its employees, by discriminating in regard
to hire or tenure of employment or any term or condition of em-
ployment or by threats of such discrimination;
(b) Maintaining surveillance of or employing any other means of
espionage for the purpose of ascertaining and investigating the activ-
ities of its employees in connection with any labor organization;
projects are not considered as earnings , but as provided below in the Order , shall be
deducted from the sum due the employee , and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal , Mate, county , municipal or other government
or governments which supplied the funds for said work-relief projects.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their 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 purposes of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to Ferris Aldrich and Harold Poulson, respectively,
immediate and full reinstatement to their former positions without
prejudice to their seniority and other rights and privileges;
(b) Offer to Lloyd L. Siglin immediate and full reinstatement
to his former position as janitor in the respondent's plant without
prejudice to his seniority and other rights and privileges;
(c) Make whole Ferris Aldrich, Harold Poulson, and Lloyd L.
Siglin for any loss of pay they may have suffered by reason of the
respondent's discriminatory acts, by payment to each of them, re-
spectively, of a sum of money equal to the amount which he normally
would have earned as wages from the date of his discharge to the
date of the respondent's offer of reinstatement, less his net earnings
during said period; provided, however, that the respondent shall
deduct from the amount otherwise due to each of the said employees,
monies received by said employees during said period for work per-
formed upon Federal, State, county, municipal, or other work-relief
projects, and pay over the amount, so deducted, to the appropriate
fiscal agency of the Federal, State, county, municipal, or other gov-
ernment or governments which supplied the funds for said work-
relief projects;
(d) Immediately post notices in conspicuous places throughout its
main plant and each of its foundries, and maintain such notices
for a period of sixty (60) consecutive days, stating that the respond-
ent will cease and desist in the manner set forth in 1 (a), (b), and
(c) and that it will take the affirmative action set forth in 2 (a), (b),
and (c) of this Order;
(e) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
Mr. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.
6