Wohlfahrt Engineering & Manufacturing Co.Download PDFNational Labor Relations Board - Board DecisionsApr 6, 1953103 N.L.R.B. 1632 (N.L.R.B. 1953) Copy Citation 1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FRED WOHLFAHRT AND ERNA WOHLFAHRT , COPARTNERS , DOING BUSI- NESS AS WOHLFAHRT ENGINEERING & MANUFACTURING COMPANY' and LOCAL 1555, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR- CRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW- CIO). Case No. 7-CA-653. April 6, 1953 Decision and Order On February 13,1953, Trial Examiner Charles W. Schneider issued his Intermediate Report in this case, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take cer- tain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondents filed excep- tions to the Intermediate Report and a supporting brief .2 The Board 3 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 Inter- mediate Report, the Respondents' exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications : 4 The Trial Examiner found, and we agree, that the Respondents eliminated overtime work during the week of October 21, 1951, in reprisal for the employees' adherence to the Union, thereby violating Section 8 (a) (1) of the Act. The Trial Examiner accordingly recom- mended that the Respondents make whole their employees for the wage loss incurred by them as a result of the elimination of overtime during the week of October 21, 1951. However, we find, like the Trial Examiner, that 3 employees G were offered overtime work during that week and that 1 of these 3 employees did perform overtime work, and the other 2 refused to perform such work. As none of these 3 employees was discriminated against with respect to overtime during the week of October 21, 1951, they are not entitled to recover any loss of wages suffered by the elimination of overtime work during that period. Accordingly, we will not require reimbursement of any of these 3 employees for loss of wages due to elimination of overtime. 1 Herein called the Respondents. ' The Respondents ' request for oral argument is denied because in our opinion the record, including exceptions and briefs , adequately presents the issues and the positions of the parties. 3 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Herzog and Mem- bers Styles and Peterson]. We note and correct the following typographical error : The name of the Respondents' working foreman is Demeres and not Demres as stated in the Intermediate Report. " Chester Grzyb , Harry Longman, and Harry Ostrowski. 103 NLRB No. 144. WOHLFAHRT ENGINEERING & MANUFACTURING COMPANY 1633 Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Fred Wohlfahrt and Erna Wohlfahrt, copartners, doing business as Wohlfahrt Engi- neering & Manufacturing Company, Centerline, Michigan, their agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local 155, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), or in any other labor organization of their employees, by discriminatorily discharging employees, or by dis- criminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment, because of their membership in or activity on behalf of any such organization. (b) Interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form labor organi- zations, to join or assist Local 155, International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), or any other labor organization, 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, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Edward Michalski immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole, in the manner set forth in the section of the Intermediate Report en- titled "The Remedy," for any loss of pay suffered by reason of the discrimination against him. (b) Make whole its employees, except Chester Grzyb, Harry Long- man, and Harry Ostrowski, for any wage losses suffered as a result of the elimination of overtime during the week of October 21, 1951. (c) Upon request, make available to the National Labor Relations Board, or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order. 1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at its plant at Centerline, Michigan, copies of the notice attached hereto and marked "Appendix A." 6 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall after being duly signed by the Respondents or their representa- tive, be posted by the Respondents immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondents to insure that said notices are not altered, defaced, or cov- ered by any other material. (e) Notify the Regional Director for the Seventh Region, in writ- ing, within ten (10) days from the date of this Order, what steps the Respondents have taken to comply herewith. 6 In the event this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur- suant to a Decree of the United States Court of Appeals , Enforcing an Order." Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in LOCAL 155, INTERNA- TIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), or any other labor organization of our employees, by discharging or threat- ening to discharge any of our employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist LOCAL 155, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the ex- tent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Edward Michalski immediate and full rein- statement to his former or substantially equivalent position with- WOHLFAHRT ENGINEERING & MANUFACTURING COMPANY 1635 out prejudice to any seniority or other rights and privileges previously enjoyed and make him whole for any loss of pay suf- fered as a result of the discrimination against him. WE wILL make whole our employees, except Chester Grzyb, Harry Longman, and Harry Ostrowski, for any loss of wages incurred by the elimination of overtime during the week of Octo- ber 21, 1951. All our employees are free to become, or refrain from becoming, members of the above-named union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. FRED WOHLFAHRT and ERNA WOHLFAHRT copart- ners, doing business as WOHLFAHRT ENGINEERING & MANUFACTURING COMPANY, Employer. Dated -------------------- By -------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE A charge alleging unfair labor practices in violation of the National Labor Relations Act, 61 Stat. 136, having been filed by Local 155, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), on September 24, 1951, and an amended charge to the same effect on October 14, 1952, the General Counsel of the National Labor Relations Board issued his complaint thereon on October 15, 1952, against Fred Wohlfahrt and Erna Wohlfahrt, copartners doing business as Wohlfahrt Engineering & Manu- facturing Company, Centerline, Michigan, the Respondents herein. As subsequently amended, the complaint alleged in substance, that the Re- spondents (1) discharged Edward Michalski about September 21, 1951, in viola- tion of Section 8 (a) (1) and (3) of the Act; and (2) since about September 13, 1951, violated Section 8 (a) (1) of the Act by, in reprisal for union activity, assistance, or designation, (a) interrogating employees concerning union mem- bership and activities; (b) threatening to refuse further wage increases, to shut down the plant, to discontinue overtime work, to withdraw employee privi- leges, and to discontinue any policy of leniency toward employees; and (c) re- ducing the workweek following a Board-directed bargaining election. By an- swer and amended answer the Respondents denied the commission of unfair labor practices. Upon due notice a hearing was held at Detroit, Michigan, before the under- signed Trial Examiner on November 17, 18, and 19, 1952. The General Counsel, the Respondents, and the Union were represented by counsel, participated in the hearing, and were afforded full opportunity to present relevant and material evi- dence, to examine and cross-examine witnesses, to argue the issues orally, and to 1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD file briefs and proposed findings. Various motions to dismiss made by. the Re- spondents in their pleadings or at the hearing, based on Section 10 (b) of the statute, and on the General Counsel's failure to plead compliance by the Union with Section 9 (f), (g), and (h) of the Act, were, or are now, denied. 1)inion Coil Co., 201 F. 2d 484 (C. A. 2) ; Ann Arbor Press, 188 F. 2d 917 (C. A. 6) ; Brad- ley Washfountain, 192 F. 2d 144 (C. A. 7). Motions by the Respondents to dis- miss on the merits are disposed of by the following findings. The hearing was closed by order on December 1, 1952. Proposed findings and conclusions, disposed of by the following findings, were submitted by the Re- spondents on December 12, 1952, and a brief by the General Counsel on Decem- ber 22, 1952. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The following allegations of the complaint respecting the Respondents ' business are admitted. Respondents are, and at all times hereinafter mentioned were, copartners doing business as Wohlfahrt Engineering & Manufacturing Company, with their principal place of business at Centerline , Michigan , where they are engaged in the production of machine and precision parts. In the course and conduct of their business , the Respondents have, over a long period of time, caused substantial quantities of raw materials used in the manufacture of their products to be purchased and transported in interstate commerce from and through States of the United States other than the State of Michigan to Respondents ' plant at Centerline , Michigan , and have continuously caused large quantities of products produced by them to be sold and transported in interstate commerce from their plant located in Centerline , Michigan , to, into, and through States of the United States other than the State of Michigan. Re- spondents , during the 12-month period ending December 31, 1951, which period is representative of all times material hereto, manufactured and sold in interstate commerce from their aforesaid plant in Centerline , Michigan , to points outside the State of Michigan finished products valued in excess of $25,000 , and sold finished products valued in excess of $50 ,000 to other employers within the State of Michigan who in turn sold products valued in excess of $25,000 in interstate commerce to points outside the State of Michigan. Respondents have been at all times mentioned herein, and are now, engaged in commerce within the meaning of Section 2 (6) and ( 7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 155, International Union , United Automobile, Aircraft and Agricultural Implement Works of America (UAW-CIO), is a labor organization affiliated with the Congress of Industrial Organizations , admitting to membership em- ployees of the Respondents. III. THE UNFAIR LABOR PRACTICES A. Interference, rcYtraint , and coercion So far as the record discloses, the first union activity at the Respondents' plant occurred on the evening of September 12, 1951 On the evening of that day, after work, about five emph ees (I)on Bacon, Leo Schlickenui er, Joe WOHLFAHRT ENGINEERING & MANUFACTURING COMPANY 1637 Went„Edward Mic Aloki,,giAo AlAlonroy) met with Rebert Doen, international representative of the Union, at a bar or tavern several miles from the Respond- ents' plant and mapped out an organizational campaign among the Respondents' employees. Before the meeting was held, on the afternoon of September 12, and just be- fore quitting time, Herbert Voight, the Respondents' superintendent, approached employee Bacon in the plant. Voight told Bacon that he understood that Bacon was "trying to get the union in the shop," and inquired what Bacon was "doing that for." Bacon at first denied the allegation, but after some discussion ad- mitted it, and gave as the reason that the employees thought that they could "better" themselves, and that they did not think that they were "getting a square deal in the shop." Voight then asked Bacon who was going to be present at the meeting to be held that night. Bacon at first denied any knowledge of a meeting, but after some pressing by Voight admitted that one was scheduled ; and after Voight assured him that he (Voight) would not "fire any of the boys . . . or anything happen to them," Bacon gave Voight the names of the employees who would be present' The meeting was held that night and those present chose a committee, with Michalski who was discharged 9 days later, assertedly discriminatorily, as chairman 2 On the morning of September 13, 1951, the day after the above meeting, Inter- national Representative Doen distributed union buttons, handbills, and other union literature at the plant gates. The buttons, displaying the legend, "Let's make it one hundred percent CIO," were worn openly by the union committee and other employees. On the day after the distribution at the plant gates, on September 14, 1951, the Respondents' foreman, Gregory Demres, a supervisory employee,' approached employee Michalski in the plant, looked at Michalski's union button, and re- marked that Michalski "might as well put Stalin's picture on there . . . it's just as good." Several days later, on an occasion when Demres and employees Bacon and Schlickemnyer were eating lunch at a restaurant away from the plant, Demres asked the others why they did not put Joe Stalin's picture on the union buttons, since Stalin was "a Communist too." Demres went on to say that the Union was "for lazy people ; people who didn't want to work" ; and further said that Wohlfahrt would close the plant if the Union organized it.' I The findings as to this conversation are based on Bacon's undenled testimony. Voight, a witness for the Respondents, admitted on cross-examination having a conversation with Bacon about the Union , but testified that he could not recall "what I asked or what happened" ' The findings as to the meeting are based on the testimony of Michalski, Schlickenmyer, Bacon, and Went. Went's testimony, contrary to the others, was that Michalski was not elected chairman . I have concluded that Went was mistaken. 8 Demres assigns work, responsibly directs employees, oversees their performance, and gives them orders, though having no authority to discharge. * The findings as to Demres' statements are based on the testimony of Michalski , Bacon, and Schlickenmyer. Demres did not deny making the statement to Michalski. As to his declarations to Bacon and Schlickenmyer concerning Stalin, Demres testified that they were "unofficial," and made "dust as a carnal friend" in response to statements by Bacon and Schlickenmyer to the effect that they would ".Aut the shop down" if "things weren't going to go the way they wanted them to go." iDemres' testimony was that if "a man can't run his own shop, why those are practically communistic methods and they might as well have Stalin's picture on the button " Even if Demres' explanation is accepted, the purport of his declaration is that it would be "communistic" for the employees to go on strike in support of their bargaining demands. The other statements attributed to Demres are not denied 257965-54 -vol. 103-104 1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the following week, about September 18, Superintendent Voight came to employee Michalski in the plant and told Michalski that he knew that Michalski was the chairman of the Union' s organizing committee, and that he (Voight) did not want Michalski "talking to any of the people in the plant." Voight further said , as testified by Michalski, that . . . if the union gets in Mr. Wohlfahrt will not be lenient with us any more on the scrap or anything, any rules that we broke in the plant, and auto- matically we would be fired ; there wouldn't be ifs and ands about it, and also he threatened that Mr. Wohlfahrt at the time, before he would see the union get in, he would rather sell the plant or else close the door and let the plant go to hell.' About a week after the distribution at the plant gates, Respondent Fred Wohlfahrt asked employee Schlickenmyer why the employees wanted a union-; and why they had "treated him so dirty," when he had done everything in his power to "make everything so nice" for the employees. Wohlfahrt further told Schlickenmyer that If the Union came in he would shut down the plant ; that "no communist outfit [was] going to tell him what to do." During the summer Respondent Fred Wohlfahrt went to Germany, returning on September 3, 1951. While Wohlfahrt was in Germany, employee Michalski asked Superintendent Voight for a raise. Voight told Michalski at that time that Michalski should have no difficulty getting it, but that he would have to wait until Wohlfahrt returned from Germany. On September 20, however, on inquiry by Michalski, Voight told Michalski that since the Union was "trying to get in," that Wohlfahrt didn't "feel that [the employees] deserved a raise" ; and that if they thought they did they should "see the Union about it." Voight further told Michalski that if the Union "gets in," all overtime would be elimi- nated. The employees were then working 58 hours per week. The regular schedule was 40 hours.' On September 21, 1951, Michalski was discharged, according to the General Counsel because of his union activities ; according to the Respondents because of improper workmanship. This issue is discussed later. After Michalski's discharge Foreman Demres told employee Szymanski of it. Szymanski asked the reason. Demres replied that it was because Michalski had "scrapped" some work. When Szymanski asked whether that was "bad," Demres responded, Szymanski testified, . . . it wasn't too bad but the fact that he was trying to organize the shop Michalski got fired, and they were going to watch the stuff pretty close in case anybody else scraps anything; that if he has any union ac- tivities in his mind, he will get fired too.' Upon petition of the Union, a consent collective-bargaining election was held on October 18, 1951, which the Union won. Thereafter, following negotiations and the issuance of a strike notice by the Union, a contract was executed on Jan- uary 2, 1952. Up to the time of the consent election, the employees had been working 18 hours a week overtime. It has been noted that on September 20, 1951, Superintendent d The findings as to these statements by Voight are based on Michalski 's undenied testimony. ' This finding is based on the undenied testimony of Schlickenmyer. The above findings are based on Michalski's undenied testimony . Michalski placed the first conversation with Voight as occurring after the beginning of the organizational activity . In view of the reference therein to Wohlfahrt being in Germany it could not have occurred later than September 3 11 The findings as to this conversation are based on Szymanski 's undenied testimony. WOHLFAHRT ENGINEERING & MANUFACTURING COMPANY 1639 Voight told epnployee Michalski that if the Union gox ip, overtime would be eliminated. The consent election was held on Thursday. On either the following Friday or Saturday the Respondents without any explanation announced to the employees, either by posted written notice or by oral communication from Superintendent Voight and Foreman l)emres, that overtime would be discontinued beginning the following Monday. At the same time, however, three employees working on especially urgent jobs were told to continue overtime. The Union was not notified of the decision, and no explanation of any kind was given to the em- ployees. Following the announcement, the employees met and decided among themselves that unless overtime was continued generally, none of them would work overtime. Only 1 of the 3 designated employees worked overtime during the following week. After a week of this the Respondents, again without any ex- planation, announced that overtime would be resumed for everyone. The General Counsel contends that the discontinuance of overtime was in reprisal for the union activity and designation. The Respondents contend, and Respondent Fred Wohlfahrt testified, that the discontinuance was the result of a customer's orders to "slow down" on a certain job, and resultant engineering changes. Thus, on direct examination, Wohlfahrt gave the following explana- tion : A. We had quite a little pressure put on the shop to get one machine done, and then they told us to slow down a little bit because there were quite a few corrections to be made during the processing of the other parts, so they said take it a little easy for a week, until they get some of the items assem- bled, and we were assembling those machines at that time, capsule machines, and so we slow down for that week. Q In other words, you were informed by the concerns'ior which you were working, or for which you were doing work that they expected some engi- neering changes in the work that you were doing? A. That's right. Q. And asked you to slow down on the work until the engineering changes were remedied? A. There were five more machines in process, a total of six machines to be built, and they had experienced a little trouble here and there in the assembly of some of the items and they didn't want to go to the expense of having to charge extra time for the additional work. On cross-examination Wohlfahrt testified that, after the week without over- time, the Respondent received new plans making changes in the machines. Of these plans Wohlfahrt at first volunteered, "I can show them to you. We have them here." Asked to identify the changes, and invited to refer to the plans, Wohlfahrt could only say that "There were quite a few things changed" ; could not give the number of the casting or the parts involved for the reason that he could not "recollect that many numbers." Invited to get that information, his reply was, "I don't have it." Asked if he could not get it, he responded, "Not right now." Later Wohlfahrt testified that some of the changes were made telephonically and the information recorded on the print. The prints assertedly indicating these changes were not identified or offered in evidence. Wohlfahrt's testimony as to the reason for the elimination of overtime was not corroborated. In view of the vagueness of his testimony, the absence of cor- roboration, the absence of explanation to the employees or the Union at the time as to the reason for the discontinuance and the resumption ; the failure to identify the actual changes made from evidence in the possession of the 1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent , and upon my observation , I am unable to credit the assertion that overtime was eliminated because of engineering changes or at the direction of the customer . I think it more credible under the circumstances that the overtime was eliminated because the Union had "got in," as Superintendent Voight had predicted to Michalski would happen in such an event. It is so found. It is found that by the following context of conduct , heretofore described, the Respondent has interfered with, restrained , and coerced employees in the exercise of rights guaranteed in Section 7 of the Act : Superintendent Voight's interroga- tion of employee Bacon on September 12, 1951 ; Foreman Demres' statement to employees Bacon and Schlickenmyer, several days after September 14, to the effect that Wohlfahrt would close the plant if the Union organized it; Superin- tendent Voight 's threats made to employee Michalski on September 18; Re- spondent Fred Wohlfahrt 's threats to employee Schlickenmyer about a week after September 13; Superintendent Voight's threat to employee Michalski on September 20 to eliminate overtime ; Foreman Demres' statements to employee Szymanski after Michalski 's discharge as to the reasons for Michalski 's discharge and the consequences of the union activity ; and the elimination of overtime following the election. Other incidents-either heretofore recited or elicited in testimony of the General Counsel and not referred to above-assertedly establishing coercive conduct by the Respondents , are not discussed or no finding of unfair labor practices has been made, either because I do not credit the affirmative testi- mony, or because I have credited the negative testimony ; or because I believe that the evidence does not in any event preponderantly establish a violation of the Act. B. The discharge of Michalski Edward Michalski , a machinist of 8 or 9 years' experience , .vas hired by the Respondents on May 8 or 10, 1951, at $2.35 per hour, and discharged on September 21, 1951: according to the General Counsel for discriminatory reasons ; according to the Respondents because of excessive scrapping of material. On the second night of Michalski's employment, Respondent Fred Wohlfahrt asked Michalski to take over the operation of the Bullard machine, a vertical lathe. Michalski told Wohlfahrt that he had had no experience on that type of machine, knew nothing about it, and indicated reluctance to operate it. Wohl- fahrt responded that Foreman Demres and Superintendent Voight would help Michalski, and that he need have no concern. When Michalski still hesistated, Wohlfahrt offered him a 10 cents an hour increase if he would take over the Bullard . Michalski then consented . This is conceded. It is not disputed that in late June or early July 1951 Michalski, in the course of a request for another increase in pay, asked Superintendent Voight whether Voight and Wohlfahrt were satisfied with his work. Voight replied, "more than satisfied ." With respect to Michalski 's request for an increase, Voight said that he did not think that there would be any trouble getting it, and that he would see Wohlfahrt about it. That same afternoon Voight informed Michalski that the request had been granted ; and Michalski's wages were then increased to $2.55 per hour. During the period that Fred Wohlfahrt was in Germany (August and early September ) Michalski again asked Superintendent Voight for a raise. On this occasion Voight replied that there should be no difficulty getting it, but that Michalski would have to wait until Wohlfahrt returned from Germany. Wohlfahrt returned on September 3. On September 20, when Michalski inquired again about the matter, Voight told Michalski that since the Union was trying WOHLFAHRT ENGINEERING & MANUFACTURING COMPANY 1641 to get in the plant, Wohlfahrt did not feel that the employees deserved a raise. As has been seen, between September 12 and September 21, Foreman Demres, Superintendent Voight, and Respondent Fred Wohlfahrt made statements to various employees indicating their opposition to the Union, including declarations that the plant would close down. Among these statements was one by Superin- tendent Voight to the effect that if the Union got in employees would, contrary to past practice, be fired for producing scrap or any violation of plant rules. It has been noted that Michalski was chairman of the union organizing committee. Several weeks before his discharge Michalski was given a job, known as the Bendix automatic air chuck, consisting of eight identical pieces, to machine on the Bullard. Before beginning the job Michalski studied the blueprint and found it unclear as to one operation : whether the center section of the diametrical flat face should be cut out like a vertically walled bowl, or whether instead a groove should be cut in the face. Michalski called over Joe Went, a fellow employee, and asked Went's opinion. After studying the print, Went advised Michalski to consult Foreman Denires. Michalski took the print to Demres, who instructed him to cut out the face, and Michalski then proceeded to do so. This procedure was in fact erroneous; the piece should have been grooved in- stead of cut out' On September 21, 1951, in the process of assembling the Bendix job, bench hand Kuhnhenn was unable to make the pieces fit. Kuhnhenn then discovered that the groove had been erroneously cut out , and reported this to Superintendent Voight and Foreman Demres. Voight questioned Michalski, who said that he had followed the instructions of Demres. Demres admitted giving Michalski routine instructions as to tolerances, but denied having been consulted respect- Foreman Demres denied having instructed Michalski to make the cut, and admitted only to giving Michalski routine instructions concerning the work The finding to the c'ntrary is based on my observation of the witnesses and consideration of all the evidence. Michalski and Went both testified that Michalski sought Went's advice and that Went suggested that Michalski consult Demres . Went further testified that shortly thereafter he saw Demres and Michalski discussing the print at Michalski 's machine ; and that after Demres left Michalski told Went that Demres had told him to make the cut. In contrast to Michalski 's positive testimony that Demres gave him the instruction , Demres' testimony is curiously lacking in any clear and convincing denial that he did so. Thus , Demres' testimony on direct examination Q. Did [Michalski ] ever consult you with regards to the cutting of the groove? A. To the best of my knowledge, no. Q. If he consulted you, would you remember that? A. I believe I would. Q. Did you ever give him any directions to cut out in the manner that he did cut out that groove? A. None that I can remember. I don ' t see why I would . It would be a total, destructive act if I did. Q. Had ycu been consulted about this, would you have given him the direction to cut the groove in the manner that he did cut it? A. Not unless I was out of my mind. And on cross-examination . Q. Now , you stated that you don't remember Michalski ever consulting you about whether or not to face off the entire face of the Bendix Automatic Air Chuck, or to make the groove , it that correct? A. I don 't remember a thing about it. [Emphasis supplied.] In giving this testimony Demres conveyed the impression of a witness avoiding an unqualified answer to the direct question. As might be expected , the testimony is contradictory as to whether the print is confus- ing. The General Counsel's testimony is to the effect that it is ; the Respondents ' that it is not. The actual fact need not be decided. 1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the groove. Superintendent Voight thereupon told Michalski that he was discharged. When employee Joe Went heard about the discharge, he announced his intention to quit. Informed of this, Wohlfahrt came out of his office, in- quired into the situation, and attempted to persuade Went to remain, saying that there was no fault with his work. Informed by Went that he was quit- ting because of Michalski's discharge for having followed orders, Wohlfahrt asked Demres whether he had given the order to Michalski. Deinres replied that he did not remember being consulted about the operation. Wohlfahrt thereupon affirmed the discharge. Michalski and Went gathered up their tools and left the plant. The work on the chucks was not scrapped. With the approval of the customer, shims, spacers, or washers were inserted in the cut-out portion as supporting pillars for the covering pieces, and the work and material thus salvaged.10 As has been seen, after the discharge, Foreman Demres, in his conversation with employee Szymanski, minimized the importance of the mistake; said that the real reason Michalski was discharged was because he had been "trying to organize the shop" ; and warned Szymanski that any other employee with "union activities in his mind" who committed scrap would "get fired too." C. Conclusions as to Michalski 's discharge The Respondents deny that Michalski was discharged for his union activities. They affirmatively assert that he was discharged for "scrapping" work, the Bendix job being the climax of a long course of bad workmanship . It is conceded that all mechanics scrap jobs at times. If Michalski was actually discharged for the reason asserted by the Respond- ents, their action in that regard was not unlawful , irrespective of the substan- tiality of the ground . The question here is whether he was so discharged, or whether the asserted reasons are pretexts. The factors , many undenied , indicating discriminatory motivation are strong. The first union meeting was held on September 12, 1951. Nine days thereafter, Michalski , the head of the activity in the shop , was discharged for having followed the instructions of his supervisor . Before the union meeting, the superintendent who discharged Michalski interrogated another employee as to who were the participants in the activity and was told . Several days later, Michalski 's foreman , on two occasions, expressed his disapproval of the Union, suggested that it was communistic , and once warned that the plant would be closed if the Union organized it. In the following week the superintendent reiterated the threat that the plant would be closed , forbade Michalski to talk to anyone in the plant , warned him that if the Union succeeded in getting in scrap would not be tolerated and rules would be rigorously enforced by discharge . Around the same time Respondent Wohlfahrt told employee Schlickenmyer in effect that the employees had "treated him dirty" by engaging in union activity ; said that the Union was a "Communist outfit," and reiterated the threat to shut down the plant. After Michalski 's 10 There is wide discrepancy in the testimony as to the cost of the repairs Wohlfahrt testified generally that the cost was $1,700, without indicating how the estimate was arrived at This seems exaggerated. C st of the materials could not have been substan- tial. Foreman Demres' estimate of extra labor involved is for a maximum of 40 hours. At an average of $2.50 per hour, this would amount to $100. Bench hand Kuhnhenn, who assembled the job, had several men helping him. He estimated 3 days for assembly. Assuming that 4 men,worked three 10-hour-days wholly on repair of the 8 chucks (an unlikely possibility) and adding Foreman Demres' 20- hour estimate for cutting , drilling, and grinding the shims , the total extra labor cost would be $450. This figure too seems excessive in view of the nature of the repair. WOHLFAHRT ENGINEERING & MANUFACTURING COMPANY 1643 discharge, his foreman told an employee that Michalski had been discharged because of his union activities, and not because of the ground now asserted by the Respondents. In the meantime, and before his union activity, Michalski had received two pay increases, had been told that the Respondents were more than satisfied with his work, and had been further told by the superintendent that he should have no difficulty getting a third increase when Wohlfahrt returned from Germany. After the union activity, however, the third increase was denied him, substantially, according to the superintendent's statement at the time, because of the union organization. After the Union won the consent election, a previous threat by the superintendent to the effect that overtime would be discontinued if the Union got in, was carried out. In this context of fact, a conclusion of discriminatory discharge is compelling, unless there is plausible nondiscriminatory explanation. In addition to the groove cut on the Bendix chucks, the Respondents adduced evidence to establish that Michalski had improperly done many other jobs, which were factors contributing to the decision to discharge him. If the sum total of these asserted malperformances is taken at its face value, they establish what the Respondents assert and more. In fact, if true, they demonstrate not merely that Michalski was a bad workman, but that he was a hopelessly incompetent one. The supposition that the Respondents would retain such an employee for 4 months, give him wage increases, and, after adequate opportunity to appraise his capabilities, tell him that his work was more than satisfactory, strains credulity. Yet that is the apparent assertion Thus, Foreman Demres testified that Michalski had the worst scrap record of any employee in his experience. Re- spondent Wohlfahrt described him as "a shoemaker" (a contemptuous term for an incompetent mechanic). In addition to some seven jobs assertedly incorrectly done, which were not discovered till after Michalski's discharge (and hence could not have motivated his discharge) and which had to be reworked, the Respondents assign the follow- ing instances of incompetence. 1. The cutting out of the groove on the Bendix chucks As to this, it has been seen that it was (lone pursuant to Demres' instruction. 2. The ring or riser on the Bendix chuck This-item was machined oversize on the inside diameter and had to be scrapped. Wohlfahrt asserted in his testimony that Michalski was responsible for it; Fore- man Demres did not know whether Michalski or the night operator, Land, pro- duced it. Michalski flatly denied responsibility. His testimony is that the work was performed on the night shift; and it is undenied that it was so reported to Superintendent Voight without question at the time the mistake was dis- covered. I credit Michalski's account. 3. The broken clamping fixture This item was placed in the machine in reverse and consequently broke. Michalski admits responsibility for it. 4. The Lilly job This job resulted in the scrapping of 48 steel plates. The operation involved cutting slots in the face of it plate. In the process of cutting, the slot was dis- torted beyond allowable tolerances . There is dispute among all the witnesses both as to the cause and the remedy . Wohlfahrt 's testimony is that Michalski 1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was at fault because he did not grind his tool properly. Wohlfahrt further asserted that he remedied the problem by telling Michalski to change the rake of the cutting tool and to clamp the plates in the machine. It is not disputed that Michalski discovered the distortion and called it to the attention of Foreman Demres. 'Michalski's testimony is that it was a difficult tooling problem which was jointly solved: Wohlfahrt suggesting changing the tool rake and Michalski himself suggesting the clamping procedure ; and that these eliminated the dis- tortion. Demres' version is quite different from both the others. He claimed credit for diagnosing the trouble and eliminating it. According to Demres he solved the problem by having Michalski use two cutting tools-first a large one and then a smaller and that this eliminated the distortion. Demres knew noth- ing about Wohlfahrt participating in the discussion. Voight's testimony was at first sure that the tool was not properly ground ; ultimately uncertain whether the tool was reground or whether the problem was solved by Demres' method. Wohlfahrt's denied further testimony is that that job was offcenter in any event, and the holding bolt threads stripped, and that for these Michalski was responsi- ble. None of the other testimony suggests that such was the case. In the face of these conflicting claims and testimony, I cannot find reasonable ground for im- puting dereliction to Michalski in the performance of this job. 5. Plate falling from machine On this particular job a heavy steel plate, used to hold work on the machine, fell due to vibration. Michalski's credited testimony is that the plate was dis- torted and could not be fastened securely without throwing the work out of line ; that he called this to Demres' attention and that Demres told him to make the cut with only moderate clamping. I see no basis for attributing carelessness to Michalski. 6. The steel rings for the Saffran Company This job, which was carried on at intervals over a period of months, was begun before Michalski was employed, and continued after he was discharged. Both Michalski, his predecessor, and the night operator worked on it. Over a period of 4 months Michalski worked on the rings off and on, running about 2 orders (consisting of 40 rings each) a month. One shipment of 39 was rejected as over- size. The Respondents attribute the scrapping to Michalski, although adducing no credible evidence that he was responsible. Michalski flatly denied scrapping the rings, and there is no evidence that the matter was ever brought to his atten- tion. Under these circumstances I find no ground to conclude that Michalski was responsible" I do not find these incidents to have been the cause of Michalski's discharge. In the context of all the evidence it is my conclusion that they were but pre- texts for the discharge ; and that the actual reason was Michalski's union ac- tivity. It is found that in discharging Michalski the Respondents discouraged membership in the Union by discrimination in tenure of employment, and by that action interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Respondents set forth in section I, above, 11 Another job which Michalski testified was scrapped because a plate on the lathe had got out of plane, requiring it to be sent out for repairs, is apparently not relied upon by the Respondents as a ground for the discharge , and is therefore not discussed. JAY COMPANY, INC. 1645 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 Having found that the Respondents have engaged in unfair labor practices it will be recommended that they cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It will be recommended that the Respondents offer Michalski immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges ; and make him whole for any wage losses suffered as a result of the discrimination, in accordance with the Board's usual policies. See Chase National Bank, 65 NLRB 827; Crossett Lumber Co., 8 NLRB 440; F. W. Woolworth, Co., 90 NLRB 289. It will be further recommended that the Respondents make whole their em- ployees for the wage losses incurred as a result of the elimination of overtime during the week of October 21, 1951. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. Local 155, International Union, United Automobile, Aircraft and Agricul- tural Implement Workers of America (UAW-CIO) is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminating in regard to the hire and tenure of, employment of Ed- ward Michalski, thereby discouraging membership in a labor organization, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) 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 omitted from publication in this volume.] JAY COMPANY, INC. and HENRY SHANNON JAY COMPANY, INC. and FunNITIIRE WoRKms , UPHOLSTERERS AND WOOD WORItERS UNION, LOCAL 576, INDEPENDENT . Cases Nos. 21-CA-1335 and 91-CA-1458. April 6, 1953 Decision and Order On December 30, 1952, Trial Examiner Howard Myers 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 the copy of the 103 NLRB No. 141. Copy with citationCopy as parenthetical citation