Air Associates, Inc.

National Labor Relations Board - Board Decisions

Feb 10, 1940

20 N.L.R.B. 356 (N.L.R.B. 1940)

In the Matter of AIR ASSOCIATES, INCORPORATED and INTERNATIONAL
UNION UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL Nay 865,
AFFILIATED WITH THE C. I. O.
Case No. C-1175.-Decided February 10, 1940
Aviation Accessories , Parts, and Equipment Manufacturing and Distributing
Industry-Interference, Restraint , and Coercion : anti-union statements ; expres-
sion of hostility to outside unions ; use of application form requiring disclosure
of union membership ; attempt to instigate movement to form inside organiza-
tion-Discrimination : discharges for union membership and activity ; discharges
intended to discourage union membership by creating resentment against union-
Reinstatement Ordered : discharged employees-Back Pay: awarded.
Mr. Albert Ornstevn, for the Board.
frScandrett, Tuttle c Chalaire, by Mr. Walter Chaldire , of New
York City, for the respondent.
Mr. Benjamin Rubenstein, of New York City, for the Union.
Mr. David Findling, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Union United Automobile Workers of America, Local No. 365, affili-
ated with the C. I. 0., herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Second Region (New York City) issued its complaint dated
August 29, 1938, and its amended complaint dated September 15,
1938, against Air Associates, Incorporated, Garden City, New York,
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. Copies of the complaint and amended complaint,
accompanied by notice of hearing and amended notice of hearing
thereon, respectively, were duly served upon the respondent and the
Union.
With respect to the unfair .-labor practices, the compllaint• as
amended alleged in substance (1) that the respondent dischargedcer-
20 N. L. R. B., No. 36
356
AIR ASSOCIATE'S, TNCORPORATED 357
tain-named employees 1 and has refused and continues to refuse to re-
instate said employees, because they joined and assisted the Union and
engaged in other concerted activities for the purposes of collective
bargaining and other mutual aid and protection; (2) that the re-
spondent, from on or about December 15, 1937, down to and including
the date of the issuance of the complaint herein, urged, persuaded,
and warned its employees to refrain from becoming or remaining
members of the Union, and threatened said employees with discharge
and other reprisals if they became or remained members thereof,
and (3) that the respondent, by these acts and other acts, interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act. On September 22, 1938,
the respondent filed its answer to the amended complaint S admitting
the allegations of the complaint with respect to the nature of its
business, but denying the averments of unfair labor practices.
Pursuant to notice, a hearing was held at New York City front
September 22 to October 1.8, 1.938, before William Seagle, the Trial
Examiner duly designated by the Board. The Board,' the respond-
ent, and the Union were represented by counsel and participated in
the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties. At the close of the Board's case, the Trial
Examiner granted the motion of counsel for the Board to dismiss
without prejudice the allegations of the complaint as to Walter Betts
who was alleged in the complaint to have been discriminatorily dis-
charged, but who did not appear or testify at the hearing. At the
close of the hearing, the Trial Examiner granted the motion of
counsel for the Board to conform the pleadings to the proof as to
formal matters. During the course of the hearing, the Trial Exam-
iner made various other rulings on other motions and on objections
to the admission of evidence. The Board has reviewed the rulings
of the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
On or about January 26, 1939, the Trial Examiner issued his Inter-
mediate Report, which was thereafter filed with the Board, and copies
i The names of these employees and the dates of their discharges are as follows : Joseph
Geoghegan and Ted Rodolitz on March 15 , 1938; Joseph J. Seifert on March 17, 1938,-
Walter Betts on March 25, 1938 ; Charles Fred Werner on March 27, 1938; and Warren
Edwin Thompson on April 22, 1938. Rodolitz, Seifert, and Warren Edwin Thompson are
incorrectly named in the complaint as Rodilitz , Seifer , and Warren Thompson, respectively ;
the complaint also erroneously alleges that Geoghegan and Rodolitz were discharged on or
about March 25, 1938. At the hearing, a motion to amend the complaint in respect to
these matters was granted without objection.
2 The complaint also alleged that the respondent kept under surveillance the meetings
and meeting places of its employees who were union members. On motion of the Board's
attorney , during the hearing the Trial Examiner ordered this allegation stricken from the
complaint. .
$ This answer Is the same as the answer to the original complaint , which was filed on.
September 6, 1938.
283031-41-vol. 20-24
4
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of which were duly served upon the respondent and the Union. In his
Intermediate Report the Trial Examiner found 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 recommended that the respondent cease
and desist from the aforesaid unfair labor practices, reinstate with
back pay the employees found by him to have been discriminatorily
discharged ,.4 and take certain other affirmative action necessary. to
remedy the situation brought about by the unfair labor practices
found. On March 11, 1939, the respondent filed its exceptions to the
Intermediate Report, together with a request for oral argument be-
fore the Board upon the issues raised thereby. On May 17, 1939, the
respondent, and on June 1, 1939, the Union, filed briefs which the
Board has considered.
Pursuant to notice duly served upon the respondent and upon the
Union, a hearing for the purpose of oral argument was had on
November 9, 1939, before the Board in Washington, D. C. The
respondent and the Union were represented by counsel and partici-
pated in-the oral argument. During.the oral argument the attor-
ney for the Union stated that it is now known as Local No. 661 in-
stead of Local No. 365, and moved orally to amend the pleadings and
all proceedings herein accordingly. The attorney for the respondent
declined to consent to the motion, on the ground that he had no knowl-
edge as to whether Local No. 661 is the same organization as Local
No. 365. Inasmuch as there is no proof in that regard,5 the motion
is hereby denied without prejudice. On November 13, 1939, the re-
spondent filed proposed findings of fact 9 which the Board has con-
sidered in connection with the exceptions of the respondent to the
Intermediate Report. We find the exceptions to be without merit in
so far as they are inconsistent with the findings, conclusions, and
order set forth below. The Board has examined and reviewed the
record with respect to the respondent's charge of prejudicial conduct
of the Trial Examiner during the hearing, and finds such charge
to be without substance. We have carefully considered the further
charge by the respondent that the Trial Examiner's Intermediate
4I. e., all of the employees named in the complaint ( See footnote 1, supra ) with the
exception of Walter Betts.
Early in 1939, a Split occurred in the ranks of the International Union, United Auto-
mobile Workers of America ; the Board has recognized this split as establishing two sepa-
rate labor organizations , one affiliated with the Congress of Industrial Organizations and
the other affiliated with the American Federation of Labor. See Matter of Brewster Aero-
nautical Corporation and International Union, United Automobile Workers of America,.
Local No. 365 , affiliated with the Congress of Industrial Organizations , 14 N. L. R. B.
1024. The record in the instant case, however , fails to show what action , if any, with
reference to this controversy , was taken by Local No. 365.
6 The proposed findings of fact were accompanied by a letter in which the respondent
states that they are enclosed "for submission " on its behalf . We shall consider this letter
as a request for leave to file the . proposed findings of fact. ' The Board hereby grants such
leave and ' orders 'their filing instanter.
AIR ASSOCIA'TE'S, INCORPORATED 359
Report presents a biased view of the evidence. We find it unneces-
sary to pass upon this claim, since, in resolving issues of credibility,
we have reached our determination in each instance upon the face of
the record, and the alleged bias, therefore, presents no basis for any
claim of prejudice.
Upon the entire record in the case, the Board makes the following :
"`FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Air Associates, Incorporated, a New York corporation, is engaged
in the manufacture, purchase, sale, and distribution of aviation acces-
sories, parts, and equipment. It maintains and operates a produc-
tion and distribution plant, and five sales offices. The production and
distribution plant and one sales office are located at Roosevelt Field in
Garden City, New York, and its other sales offices are located in Chi-
cago, Illinois; Marshall, Missouri; Dallas, Texas; and Glendale, Cali-
fornia.. This case concerns only, the production and distribution
plant=hereinafter referred 'to as the Roosevelt Field plant, at which
the respondent employed, in the period from January 1 to August 1,
1938, approximately between 60 and 70 persons,7 and which consists
of two main departments, a machine shop or production depart-
ment, and a stock and shipping department.
During the calendar year 1937, the respondent's sales of goods
which it manufactured and processed at the Roosevelt Field plant
aggregated approximately $60,000.1' During the same period, the
respondent sold and shipped "through its Roosevelt Field plant," in
addition to the goods manufactured and processed by it, goods manu-
factured by other manufacturers, and valued at approximately $450,-
000.° Approximately 70 per cent of the goods manufactured and
processed at, or sold and shipped through, the Roosevelt Field plant
and sales office were shipped to destinations in States other than
the State of New York.
During. the same year, the respondent purchased for shipment to
the' Roosevelt Field plant and-sales office, raw materials and finished
products which cost approximately $350,000, and approximately 50
per cent 10 of which were shipped from points outside the State of
7 This figure does not include approximately 50 salesmen and clerical employees who
were employed at the Roosevelt Field plant and sales office. The record does not reveal
what proportion of the 50 persons were salesmen and what proportion clerical employees,
and how many of the clerical employees were assigned to the sales office as distinguished
from the production and distribution plant.
8 The record does not indicate whether all of these goods were sold at the Roosevelt Field
sales office.
9 This is the sales price of these goods.
l0 The record does not indicate . whether the percentages of sales and purchases refer to
th', value. ' or to the mass , of the goods.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New York. For the purpose of this proceeding, the respondent
concedes that it is engaged in commerce within the meaning of the
Act.
II. THE UNION
International Union United Automobile Workers of America,
Local No. 365, is a labor organization, affiliated at the time-of.-the
hearing 11 with the Congress of Industrial Organizations, and admits
to its membership persons employed in the airplane and automobile
manufacturing industry in Long Island and vicinity.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In November 1937, the Union began organizational activities among
employees at the respondent's Roosevelt Field plant. In December,
after several preliminary meetings had been held, a shop committee
was chosen consisting of four, employees; two of these en ployees,
William Hartmann, who was chairman, and subsequently elected
vice president of the Local, and Joseph J. Seifert, who was shop
steward, represented the machine shop; the remaining two, Harry
Lee and Herbert Darling, represented the stock and shipping
department.
On February 10, 1938, the shop committee called on F. Leroy Hill,
the president of the respondent, stated that "the boys" in the machine
shop and stock and shipping department had joined the Union;-
pre-sented a copy of a proposed collective bargaining agreement, and
asked for an appointment for a conference between union representa-
tives and the respondent for negotiations with reference to its terms.
It is undisputed that Hill first exclaimed, "Wait a minute; take it
easy. Let me get this straight. What is the trouble in here?"
Seifert testified that Hill also then stated, "I am not opposed to any
union. I don't see why you fellows want to create two sides and
have two sides. We are like one happy family in here." According
to Seifert, Hill also inquired why the office girls, and "the rest of
the staff," including Hill himself, could not join the Union; and
stated that he did not regard it as "very fair" of the employees to
require him to bargain with in "outsider," and. that he would not
do so. Hill did not deny Seifert's testimony in this regard, and
the respondent, in its brief and at the oral argument, admitted that
Hill made in substance the statements attributed to him "at. or
about" the time the proposed contract was submitted by the shop
committee. Accordingly, we credit Seifert's testimony in this regard.
11 See footnote . sniwa.
Air ASSOOL TES, INCORPORATED 361
That night Hill familiarized himself with the proposed contract
and the provisions of the National Labor Relations Act and, the next
afternoon, approached Hartmann and proposed that the committee
come up to Hill's office to "go over the contract in detail." Upon
being informed by Hartmann that the committee was not permitted
to do_,so. unless a union organizer was present, Hill, according to'his
own testimony, said that he "did not want to talk to an outside
organizer, but ... wanted to talk to the boys"; that he did not know
"what an outsider can possibly know about, our problems here," or
what need there was "for an outsider to come in"; and that "you
fellows are working here, and W e can all sit clown and go over [the
contract.] quickly, but I don't see that having an outsider is going
to help platters in this case." Hill then continued to attempt to dis-
suade Hartmann, and, either the same day or the next morning,
sought to dissuade Lee and Seifert from dealing with him through a
union organizer . In these conversations, Hill admitted that he also
"touched briefly upon some of the points in the contract" which lie
regarded as "unfair" to other employees. of the respondent who were
not covered by its provisions, although he was told by the other coln-
mitteenlel ; as well as by Hartmann, that the committee was not free
to discuss the contract provisions with hint. Hill also approached
Darling, who refused to discuss the matter, but did so on the ground
that he had resigned from the Union the day before. 12
At the hearing, Hill, after testifying to the above-mentioned con-
versations with the members of the committee, stated that he had
meant to convey to them only that he would not deal with an outside
union until he had proof that it represented a majority of the
employees , and that no manifestation of hostility to an outside union
was intended. However, Hill then admitted that he had also in-
tended to indicate to the members of the committee his willingness,
if no "outsider" was present, to negotiate directly with the committee
at once, without proof of the committee's majority representation.
We are satisfied, and we find, that the respondent, by the foregoing
statements, intended to, and did, convey to its employees its opposition
to dealing with the Union and its preference for dealing directly
with its employees or with an "inside organization." 1- The re-
"Hill testified that Darling indicated to him in this conversation that he had resigned
from the Union because of the unreasonable nature of the provisions of the proposed con-
tract . Seifert's testimony regarding statements allegedly made by Darling at the time of
his resignation indicates that Darling resigned because of his conviction that Hill would
not recognize the Union . Although Darling apparently was still in the respondent 's employ
at the time of the hearing he was not called as a witness. We make no finding in this
regard:
m At the oral argument, the respondent's attorney conceded that Hill indicated to the
committee that "he did not want to deal with the Union or a union organizer."
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent thereby interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed by the Act 14 , `.
We also regard as a violation of the Act the respondent's attempt
to persuade the committeemen to discuss the provisions of the pro-
posed contract in the face of their assertions that they were not
authorized to do so in the absence of a union organizer. Not only
does such a practice by an employer. "undercut" the authority-;of; ,the
chosen representative to the act within the sphere of representation
in regard to the execution of a collective bargaining agreement, but
it subjects the individual employees to the very pressures which
collective bargaining would obviate. We find that the respondent
thereby further interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed by the Act 15
Shortly after the proposed contract was submitted by the shop
committee, the respondent retained counsel, and at the same. time
or shortly thereafter, advised several of its supervisory employees of
the situation with which it was confronted, and issued certain instruc-
tions to them 16 Among these supervisory employees were Arthur
Carrington and Henry Hoffmann, foremen of the stock and shipping
department and machine shop, respectively.
A few days after this discussion'17 Arthur Carrington addressed
the employees in his department. Ted Rodolitz and Joseph Geog:
hegan, two of these employees, testified that Carrington began by
saying that he was not permitted to mention the name of the organi-
zation of which he was speaking since that would constitute "some
sort of contempt," but that he would refer to it as "boy scouts" or
"rover boys"; and that he then: told the, men that Hill would,not,
recognize "any outside organization coming in to tell him how to run
his business"; that there would be no promotions or increases- in
14 Matter of A. F. and John Barnes Company and United Automobile Workers o f America,
Local Union No. 432, 12 N. L . R. B. 1028; Matter of Bussmann Manufacturing Company and
McGraw Electric Company and International Association of Machinists, District No. 9,
affiliated with American Federation of Labor, 14 N. L. R. B. 322.
- 36 See National Labor Relations Board v. Remington Rand, Inc., 94 F. ( 2d) 862 (C. C. A.
2), cert. denied , 304 U. S. 576, enf'g Matter of Remington Rand, Inc. and Remington Rand
Joint Protective Board of the District Council Office Equipment Workers, 2 N. L. R. B.
626; Matter of Charles Banks Stout, Warda Stevens Stout, and Alice Adeline Stout, Doing
Business as Majestic Flour Mills and Federal Labor Union No. 20028, Affiliated with the
American Federation of Labor, 15 N. L. R. B. 541. Senator Wagner stated , Hearings
on Sen. Bill 1958 , 74th Cong ., 1st Session , pt. 1, p . 43: "to attempt to deal with his men,
otherwise than through representatives they have named for such purposes would be the
clearest interference with the right to bargain collectively."
16 The respondent contends that the purpose of the conversation with the supervisory
employees was to assure compliance with the Act. Hill testified that the supervisory
employees were instructed to avoid knowledge of the union activities of the employees and
not to interfere with or report to Hill any union activity which might come to their
knowledge . Hill also testified that he withdrew at this time the power of the supervisory
employees to hire and fire. For reasons appearing hereinafter , we do not credit Hill's
testimony with regard to the nature of these instructions.
17 Carrington testified that he addressed the employees before the conference with Hill.
For the reasons stated below, we do not credit his testimony.
AIR ASSOCIAT'ES', INCORPORATED 363
salary if the Union got into the plant; and that the-men would suffer
financially as the result of dues, special assessments, and strikes.
Carrington admitted that the meeting took place, but denied that
he made any of the foreging anti-union statements. He also con-
tended that the meeting took place before the conference with Hill,
and that his purpose was to warn the men against congregating in
the aisles and stopping work to converse, because these activities
were interfering with production. He admitted, however, that in
the course of his remarks he "brought out some facts of the oppor-
tunities [the men] had in the firm," and that he told the men he knew
that "union organizational work [was] going on." Hill testified
that Carrington's address occurred after the issuance of the instruc-
tions, and that Carrington, who reported the incident to Hill shortly
thereafter, informed him that he had "stood the boys up and
mentioned that he had said something about the Union." 18
Geoghegan and Rodolitz also testified to other statements by Car-
rington expressing hostility to the Union. Thus, Carrington was
heard to tell several employees under him that he wished to know
"on what side you fellows are in regard to this union business,"
and that "the only man that has guts in this department is Herbert
Darling," who had, as we have pointed out above, resigned from the
Union. Carrington was also heard to say to Darling, on the occa-
sion of the discharges of the shop committeemen late in February,"
that "he was lucky he pulled out of the Union and that it would be
pretty hot for members of the Union from now on." Carrington
also denied making any of these statements.
As we have previously stated, Darling did not testify at the
hearing. Carrington was plainly not a credible witness. In addi-
tion to the contradiction by Hill, his evasiveness is apparent from
the fact that he testified that he did not know, even at the time of
the hearing, the name of the union which was attempting to organize
the respondent's plant, but that he thought it was the C. I. O: "that
was trying to chisel in." He then denied that he knew what the
C. I. O. was, and stated that he thought its leader was President
Roosevelt; after further questioning concerning the latter statement,
-howeve,;he asserted that he was "just wondering," and finally ad-
mitted that he meant John L. Lewis. We find that Carrington made
the statements attributed to him by Rodolitz and Geoghegan, and
referred to above.
18 Hill also testified that Carrington assured him that the references to the Union were
"wholly innocent," and were simply "that [ the employees ] would have to stop standing in
the aisles and talking" ; that Carrington stated that he felt Hill's instructions had not
been violated ; and that Hill then cautioned Carrington , who promised to "be very careful
to carry out my instructions after that." Hill further asserted that he considered that
Carrington had violated his Instructions "technically ," but that he did nothing further
concerning the matter.
19 These discharges are discussed subsequently.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hoffmann, the-foreman of the machine shop, also made statements
from time to time to various employees calculated to reveal the
respondent's hostility to the Union, and to discourage membership
therein. In the middle of February, when one employee encountered
difficulty with it job, Hoffmann stated that he thought the employee
might have "this C. I. O. sickness"' ,which "is not good in here";
and, on another occasion, early in May, accused this employee of
taking advantage of the "union business" by spending more tune
on a job than was necessary. On several occasions in February,
March, and April, Hoffmann also told various employees that "they
will never have a union inside here," and that the men would lose
money "by sticking to this Union"; and asked, on seeing a union
button on one of the employees, "What is that button for? Do you
think that will get you any place?" Although Hoffmann denied
that he made the foregoing statements, it is clear from the record
that he revealed a disinclination to deny such statements positively.
Hoffmann's testimony was also evasive, and punctuated with re-
peated statements that he could riot; remember. He was clearly an
unreliable witness,20 and we find that he made the statements at-
tributed to him and set forth above.
As has been stated above, shortly after the proposed contract was
submitted by the shop committee, the respondent retained counsel.
Thereafter, counsel entered into negotiations with the Union which
continued until April 21, 1938. On March 15, 1938, the Regional
Office of the Board, pursuant to stipulation of the parties, made a
check of the Union's membership. This disclosed that the Union
represented at least 56 of the 67 eligible employees in the machine
shop and stock and shipping department, and the respondent's at-
torney was so advised by a letter which lie received on March 17.
Although the record does not disclose the details of the various con-
ferences held during the course of the negotiations, it appears that
the conferences prior to March 17 were devoted to a discussion of a
procedure for determining the Union's representation of a majority,
of the respondent's employees, and that discussions of contractual
provisions were not begun until that date.
One of the conferences with reference to determining the question
of majority representation was arranged for 2 o'clock on Friday,
February 25, at the office of the respondent's attorney. The members
of the shop committee, which now included Stanley Stepkowski in
20 Hoffmann's unreliability as a witness is illustrated by his testimony with respect to a
list of names in his handwriting . Hoffmann testified that it was his practice to make up
and give to the subforeman such a list quite frequently , when he desired to shift employees
from his supervision to that of the subforeman , for the day . However , the list contained
the name of at least one employee who was never shifted and whose presence on the list
Hoffmann could not explain ; moreover , the subforeman testified that he did mot know of
any occasion when he had been given such a list by Hoffmann.
AIR ASSOCIATES, Z\CORPO'RAT'El) 365
place of Darling who had resigned, requested permission of their.
respective foremen to leave the plant to attend this meeting, as they
had been advised by the Union's attorney to do. Hill, after telephon-
ing the respondent's attorney, who stated that lie did not understand
that the members of the committee were to be present at the meeting,
advised the committeemen that they would not be granted permission
to leave-the plant and that if they left "we could not guarantee their
jobs would be there when they got back." The committee neverthe-
less left and attended the conference in -defiance of Hill's orders.
The respondent contends that the men were refused permission to
leave because they were. busy, and because the Union had agreed not
to carry on union activity on company time. Apparently there was
such an agreement; it was, however, plainly inapplicable. More-
over, the record shows that work in the shop was comparatively slow
at this time, and that other men were available to do the work of
the committeemen, and that Hoffmann, under the mistaken belief that
Seifert would receive permission to leave, had in fact ordered another
in ichine-shop employee to relieve him.
Hill discharged the members of the committee when they reported
for work on their next regular workda.y.21 No new employees were
hired to replace Seifert and Hartmann ; Sylvester Small, who entered
the respondent's employ on February 26,22 was assigned to work
which Lee. had done in the stock and shipping department, and
Matthew Hoffman, who had been laid off in 1937, was recalled by the
respondent at this time to replace Stepkowski. Thereafter, on or
shortly before March 15, it was agreed between the Union and the
respondent thit the four colninitteemen would be reinstated on March
16, and that a charge which had been filed with the Regional Office
of the Board would be withdrawn.23
On March 15, the day before the committeemen were to return to
work, Ted Rodolitz and Joseph Geoghegan, who, as we have already
stated, were employed in the stock and shipping department, were
discharged. They testified that they were told separately by Car-
rington that the Union was "messing things up"; that the men were
foolish to join the Union or "go ahead with it"; that it had compelled
='the,re-s i'ondent-to reinstate.the members of the shop committee; and
that there was consequently no work available for Rodolitz and
Geoghegan. Carrington denied that he mentioned the Union when
discharging these employees, and the respondent contends that they
were discharged because no work was in fact available for them and
a' Lee and Stepkowski were discharged on February 26, and Seifert and Hartmann on
February 28.
2 Hill testified that Small had been hired prior to the discharges, but reported for work
at this time.
23 The charge was in fact subsequently withdrawn.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they were inefficient. For the reasons stated above and upon
a consideration of the entire record, we do not credit Carrington's
denial. Moreover, as more fully set forth below,24 we find the re-
spondent's explanation for the discharges to be untrue, and we con-
clude that Rodolitz and Geoghegan were dismissed in order to create
resentment against the Union among the respondent's employees, and
thus to counteract the encouragement to union activity which was
the natural result of the reinstatement of the committeemen.
On March 16, the committeemen returned to work; the.following
day, Seifert, one of the committee members, was again discharged,
this time, according to the respondent, because he had spoiled a job
in which he was engaged. While it is true that the job was spoiled
and that the spoilage was due, at least in part, to the negligence of
Seifert, the evidence establishes, as we point out below,25 that Seifert
was in fact discharged because of his union activity, and that the
spoilage was seized upon by the respondent as an opportunity to
effect such discharge under color of justification. On March 27,
Charles Fred Werner, a machine-shop employee who was an active
union member, was .also discharged, allegedly because there was no
work available for him. The record discloses, however, that Werner
too was discharged because of his union activity." .
As we have stated above, on April 21, the negotiations for a con-
tract between the respondent and the Union collapsed.27 The next
day, Warren Edwin Thompson, who was a machine-shop employee,
and who had that morning requested Hartmann, the shop-committee
chairman, to call a meeting of the Union to take "direct action"
against the respondent because of the break-down of negotiations, was
discharged. Although the respondent claims that Thompson was
discharged because there was no tool and die designing work, for
which he had been hired, available, and that he was too highly paid
to be used on production work, we are satisfied from the entire record
that Thompson was discharged because of his militant attitude.
We shall discuss subsequently the evidence upon which we reach "this
conclusion.-
On May 2 the respondent employed Clifford D. Mathewson and
placed him in charge of production. Gustave Pfahl, who was an
officer and member of the executive committee of the Union, and
who was admittedly known to the respondent to be an active union
member, testified that early in May, Mathewson reprimanded him
24 See Section III, I: , infra.
m See Section III, B , infra.
26 See Section III, B, infra.
27 The Trial Examiner ruled that evidence offered by the respondent to show the cause
of the break-down of negotiations, was immaterial . We assume for the purposes of our
decision , therefore , that the collapse is not to be attributed to any action by the respondent.
28 See Section III, B , infra.
AIR ASSOCIATES, iINCORPORATED 367
on the ground that Pfahl' was littering the floor of the shop with
newspapers which- Pfahl had been distributing before the plant
:opened, and then told him that the Union was "no good" and its
officers "racketeers ... riding in big cars," that the employees were
"suckers," that Mathewson was there "to change things around," and
tliit "'if you fellows play ball with me . .. you will be better off."
According to Pfahl, Mathewson also described the advantages of
being "loyal" to the respondent, and indicated that a "loyal" em-
ployee would "get along swell here and never have to worry about
his future and his wife," whereas an active union man stood on "soap
boxes" and "could not get any job." 29 Pfahl further testified that
Mathewson went on to describe the advantages of a company union
such as had existed at Ranger's, another company in the vicinity of
the respondent's plant at which Mathewson had been employed prior
to his employment by the respondent; that he suggested that Pfahl
try to "swing-the boys around" and advise Mathewson of their reac-
tion;.and that he further suggested that an employee by the name
of Schwartz, who had recently been hired by the respondent as an
inspector in the machine shop and who had worked under Mathew-
son at. Ranger's, was a good man to start the new organization since
he had been head of the company union at Ranger's.
. George J. Pellegrino, another machine-shop employee, also testified
to two conversations which he had with Mathewson in May. The
first took place one Saturday afternoon at a time when Pellegrino
and several other employees had consented to work overtime for
straight time instead of time and a half as required by the Union.30
Pellegrino testified that Mathewson, after first asking if Pellegrino
was a union man, stated that the men, in thus working overtime, were
"getting wise to [themselves]" and that he would fire any of the
other union men who bothered them, if any interference by the
other. -union men were called to his attention. According to Pelle-
grino; Mathewson advised himi in the second conversation, which
occurred later, in May, that he had "better resign from the Union
It is not going to get you anywhere."
Mathewson admitted that he had a conversation with Pfahl in
which he told Pfahl to refrain from distributing newspapers on
company time or property, but denied that he said any of the other
things to which Pfahl testified, and that he had any conversations
with Pellegrino. Mathewson's testimony was contradictory and
evasive, and we do not credit his denials. Thus, he denied on direct
examination that he knew of a company union at Ranger's, but on
a3 Pfahl testified that Mathewson, in describing the plight of the union man, asserted
that Mathewson himself had been an organizer and had stood on soap boxes and been
unable to secure employment until he bad changed his name.
'0 It appears that permission to do so had been granted by the Union.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cross-examination admitted, with obvious reluctance, enough to show
,that there was in fact a company union there, and that he knew of
its existence. Mathewson also testified that he thought that the
paper which Pfahl was distributing was "The Daily Worker," 31 and
that he did not know of any union activity at the respondent's plant
at this time. However, he admitted that. Pfahl asked him why l ie
was opposed to the Union and' advised him that lie was "shop"chair-
man." He further testified that immediately upon seeing the papers,
he asked Fildstedt, a subforeman, about them, and then reported the
matter to Hill, told Hill that "there was some kind of a union paper,"
2 Under the circum-and asked him, "Ha.ve you got a union here?73%
stances, we credit the testimony of Pfahl and Pellegrino, and find
that Mathewson made the statements attributed to him.
We have previously found that the conduct of the 'respondent im-
mediately after it learned of the organization of the Union among
the employees, was designed to persuade them to deal, with it with-
out the presence of an outside, union representative, and Was an un-
lawful interference with the employees' right of self-organization
under the Act. It is clear from our description of subsequent events
between February and May 1.938, and the statements and activities of
Carrington, Hoffmann, and Mathewson, set forth above, that the
respondent thereafter sought to frustrate the organizational activities
of the Union by discrediting it and by discouraging membership of
the employees therein, and to persuade its employees to choose a bar-
gaining representative which would be acceptable to it. Thus, as
we have stated, the employees were told that the Union was "no good"
and its official's "ra'cketee a"; tft t:.the,.respond6ht would never r6eog-
nize it; that the men would suffer financially because of, and secure
no benefits from, their membership; and that they were. "suckers"
and would be wise to resign from the Union. Thus, also, Rodolitz
and Geoghegan were discharged in order to counteract the effect of
the reinstatement of the shop conmlittee, and to create resentment
against the Union, among the employees. The respondent showed
also, by the discharges of Seifert, Werner, and Thompson, that, if
necessary, it was prepared to make its antagonism to the Union
effective by dismissing active or militant union members. Finally, it
attempted to instigate a movement' among the 'employees'^to-form:- a
new organization which would be satisfactory to it.
X31 The newspaper was, in fact, "The Automobile Worker." a publication of the United
Automobile Workers of America.
as The evasive nature of Mathewson's testimony may also be judged from his assertions
with respect to a conversation which he bad with Pfahl when the latter spoke to him
about the necessity of Pfahl 's testifying before the Board concerning the allegations of
the complaint in these proceedings . Mathewson denied that he advised Pfahl not to "talk
too much ," but asserted that he told him to "be a good listener and tell the truth."
AIR ASSOCIATES, INCORPORATED 369
The respondent contended at the hearing, as we have stated, that
shortly after the proposed contract was submitted on February 10,
1938, it took measures to assure compliance with the provisions of
the Act. Hill testified that he instructed the supervisory employees
not to interfere with, and to avoid all knowledge of, union activities in
the plant, and, as a precaution against discrimination, revoked their
_er, to Dire and fire. - Hill also testified,that, in order to avoid, aspog
far as possible, any knowledge on his part of the union affiliation of
his employees, he further instructed the supervisory employees not to
report to him any union activities which might come to their knowl-
edge, even if such activities occurred in the plant.
Hoffmann, the foreman of the machine shop, testified in response
to questions by the respondent's attorney, that Hill's instructions were
`'not to interfere with that union business because he [Hill] would
have everything in his hands"; and that he did not remember being
instructed not to discuss union affairs with the employees. Hoff mann
testified also that he had had power previously to employ and dis-
charge,,,and corroborated Hill's testimony with regard to revocation
of the-power. Nothing in Hoffmann's testimony indicates that any
other instructions were given. Carrington testified that the instruc-
tions were to "have nothing to do with any dealings with the union,
and have nothing to say about the union, . . . and not talk about it";
and that "Hill would personally conduct all the hiring and firing."
He also testified, however, that although the supervisory employees
could make recommendations, none of them, including himself, had
had final power to' hire or fire,33 even before the time the alleged in-
structions were given, and that all hiring and discharging had ulti-
mately to be approved by Hill. None of the other supervisory em-
ployees testified concerning the alleged instructions. It is undisputed,
also, that the supervisory employees, who, before the issuance of the
alleged instructions, actually hired and gave notice of discharge to
the employees, continued to do so.
Shortly after February 15, 1938, a new form of application for em-
ploylrleilt was devised and put into use by the respondent. This ap-
plication form, which was used at least until the end of April 1938,
required the applicant to state whether he was a member of any
organization, and, if so, to give the name thereof. Hill testified that
Henry Reisner, the general superintendent of production, drew up the
form without his knowledge, that it was never discussed by them,
and that Hill did not "really . . . seem to see [it] until quite a long
time" after it was prepared." However, since, as we have previously
Although Carrington s testimony concerned specifically only the power of the super
visory employees to hire, the recoad leaves no doubt that be was also referring to the
power, of the . supervisory . employees to discharge.
s+Reisner, who, at the,.time of the hearing, was no longer employed by the respondent,
was not called as a witness.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pointed out, the ultimate power of hiring was exclusively reserved -to-
Hill, the form must have come to his attention. We are satisfied
and find that Hill had knowledge of its use.
Moreover, no written memorandum of instructions was issued until
September 12, 1938,35 which was after the issuance of the. original.
complaint in the present proceedings, although many changes in
personnel among the supervisory employees were made during this
period; and, as we have stated, the instructions, if given orally in
February, were violated to Hill's knowledge by Carrington almost
immediately after their issuance, and by Mathewson subsequently, in
reporting that Pfahl had been distributing union papers. Further-
more, no notice, by posting or otherwise, that instructions against in-
terference in the employees' organizational activities had been issued
to the supervisory employees, was ever given to the non-supervisory
employees, and no investigation was ever made to determine to what
extent the alleged instructions were being observed.
It is apparent that the evidence offered by the respondent with
respect to the alleged instructions is contradictory and unconvincing-
We do not believe that the new application form to which we 'have
referred would have been in use for at least 2 months, if the respond-.
ent had instructed its supervisory employees that it desired no in-
formation concerning the union affiliation or activities of its
employees,36 and had ordered them to avoid such knowledge them-
selves. Moreover, we do not believe that, if such instructions had in
fact been given, they would have been repeatedly disobeyed by, the
respondent's supervisory . employees in the manner above described.
Under all the circumstances, and in the light of the entire record,' we
are 'convinced and find that no instructions such as Hill claimed to
have issued, were in fact given to the supervisory employees.87
35 This memorandum , which was specifically addressed to Carl Holm , a new general
superintendent who was hired at this time , states :
It is also the policy of the Company to avoid in so far as possible knowledgeon
the part of any of its managerial employees of the private affairs of any other em-
ployees. The Company and its managerial employees are not to interfere in any
way with any organization activity carried on by any union or other organization
so long as such activities do not Interfere with the conduct of the business of the
Company. No consideration Is to be given in making any recommendations as to
employment or tenure of employment , to membership or nonmembership in any
union or other organization.
If you have any personal feelings either for or against labor unions , please do
not express your opinions to any other employees of the Company.
It is clear that the memorandum does not enjoin supervisory employees against reporting
union activity in the plant to Hill.
36 It is well settled that the union affiliation of employees is not a proper concern of an
employer , and such information should not be requested either orally , or on cards or other
forms which employees are required to fill out . See Matter of Foote Brothers Gear and
Machine Corporation and United office and Professional Workers of America, No. 24, et M1.,
14 N. L. R. B. 1043.
a' Moreover , such instructions , if issued, would afford the respondent no immunity from
responsibility for the acts of its supervisory empl'o'ees. We have frequently stated, that
AIR ASSOCIATES, 7INCORPORATLD 371
We find that the respondent, by the foregoing statements and con-
duct, has interfered with, restrained, and coerced its employees in the
exercise of their rights guaranteed in Section 7 of the Act.
B. The discharges
In Section III, A, above, we have -referred to, and briefly con-
sidered, the discharges of Ted Rodolitz, Joseph Geoghegan, Joseph
J. Seifert, Charles Fred Werner, and Warren Edwin Thompson. We
shall now discuss in greater detail the circumstances surrounding the
dismissal of each of these employees, and the considerations upon
which is based our conclusion that they were discharged in violation
of Section 8 (3) of the Act.
Ted Rodolitz and Joseph Geoghegan. Rodolitz, who, as we have
previously stated, was discharged on March 15, 1938, had been in the
respondent's employ since January 29, 1938. Prior to his employ-
ment by the respondent, he was employed at the Brooklyn, New York,
office of the Nicholas-Beazley Airplane Co., Inc. Late in December
1937`that company was merged 38 with the respondent and thereafter
three of its six employees were given jobs by Hill. Among these
three were Clarence Reid, who had been Rodolitz's superior at Beaz-
ley's, and Rodolitz.30 Reid, who became assistant general manager
of the respondent's plant, and Hill testified that after the merger the
respondent decided not to hire Rodolitz as a regular employee because
lie was lazy and incompetent; that at Reid's suggestion it subse-
quently employed him on a temporary basis to arrange the Beazley
stock which he had packed previous to its shipment to the respondent,
and with which he was consequently familiar; that he was specifically-
informed that his job was temporary; and that his work on the Beaz-
ley stock was finished on March 15 and his employment thereupon
terminated, because there was no other work available for him.
There is no evidence that any complaints concerning Rodolitz's-
work had been made during the entire period of his employment at
Beazley's which continued from September 1936 until the merger in
the acts of supervisory employees are those of the employer unless effectively disavowed.
Matter of Consolidated Cigar Corporation and Cigar Makers ' International Union of-
America, Local No. 85,47 N. L. R. B . 217; Matter of lVickw'ire Brothers and Anialga-
unated Assn. of. Iron, Steel d Tin Wo rkers of North America, Lodge #1985, Through S. 1V..
O. C., Affiliated with the C . I. 0., 16 N. L. R. B. 316; Matter of Jefferson. Lake Oil Com-
pany, Incorporated and Sulphur Workers Local Union No. 21195 , 16 N. L . It. B. 355,.
and cases therein cited ( footnote 22). In the present case, though, as we have found.
the respondent was placed upon notice of acts violative of the alleged instructions, it made
no attempt to disavow such acts.
ae It is not clear from the record whether the acquisition of the Beazley Company by the
respondent was by merger, purchase , consolidation , or other means . However, the acquisi-
tion will be referred to hereinafter for convenience as a merger.
89 The other . Beazley employee who was hired by Hill was a salesman ; he was employed
at approximately the same time as Rodolitz. The remaining three Beazley employees were-
office and clerical workers.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 1937,10 and it is undisputed that he had received a wage
increase in October 1937 from $52.50 to $65.00 a month.; that he had
been a loyal and willing employee; 41 and that upon the termination
of his employment after the merger lie had received an extra week's
pay and a highly laudatory letter of reference from Howard Beazley,
the president of the Beazley Company.42 Upon his employment by
the respondent, Rodolitz's pay was increased to $70.00 a mouth;, and
he also never received any complaints regarding his }vork there.'4 It
is also undisputed that Rodolitz was assigned to selection and other
work in addition to the work involved in sorting and arranging the
Beazley stock, and that selection work requires a higher degree of
skill and is more important than most of the other work in the stock
and shipping department. Rodolitz had done similar work at the
Beazley plant, and had also received and checked incoming shipments,
and engaged in stock work, counter work, packing, clerical work, and
retail selling. We are satisfied and find that Rodolitz was not, and
was not believed by the respondent to be, either lazy or incompetent,
and that, on the contrary, he was a competent and valuable worker
who had been used, and was capable of being used, for a wide variety
of jobs.
The claim that Rodolitz was ]sired as a temporary employee falls
with the claim that he was lazy and incompetent, since these qualities
are stated by the respondent to be the reasons for its alleged refusal
to employ him on a regular, as distinguished from a temporary, basis.
Moreover, assuming that Rodolitz was in fact hired as a temporary
employee to work on the Beazley stock, it is clear that the completion
of that work does not account for his discharge. The respondent's
claim that upon the completion of the work on the Beazley stock
there was no other work which Rodolitz was qualified to do, is un-
supported by the record. As we have stated above, it is undisputed
that Rodolitz, during the time he worked on the Beazley stock, was
40 Indeed, Beazley, who became a director of the respondent after the merger, and was
called as a witness by the Board to identify a letter of reference hereinafter referred to,
testified that he did not recall receiving any "bad reports" concerning Rodolitz.
Al Rodolitz testified that he had worked, without extra pay, on two Saturdays when he
was to have been off, because the plant was busy, and that Reid had given him several
technical books on aviation as a reward for doing so. Rodolitz also testified that toward
the end of his employment at Beazley's, he had had an opportunity to secure another job,
that he had discussed the matter with Reid, and that he had remained in the Beazley
employ because he was needed there and because he considered that he had a "chance of
getting in with" the respondent. Reid did not deny Rodolitz's testimony concerning these
matters.
12 Beazley testified that such a letter was not given as a mere formality and had been
refused other employees on the ground that they had conducted themselves in such a
manner as not to justify recommendation.
u In this regard, Reid testified that lie had received complaints from Carrington con-
cerning Rodolitz "several times a week" commencing with the first week of Rodolitz's
employment ; however, it is undisputed that neither Reid nor Carrington advised Rodolitz
at any time that his work was unsatisfactory.
AIR ASSOCIATES3, INCORPORATED 373
assigned to other work as well; 44 and the record shows that the re-
.spondent's business required employees who could do work such as
Rodolitz was capable of,.and had been doing,'and that such' work was
'available'at the time that Rodolitz was discharged, and for a consid-
erable time thereafter.
On March 16, the day after Rodolitz's discharge, -Robert Albertson
was hired' to inspect incoming goods, particularly a shipment -of
.bolts which was received at this time, store merchandise, and do
"anything else" required in that connection.45 It is apparent that
this work is in some respects almost exactly the same type of work
which Rodolitz had been doing in connection with the Beazley stock;
in any case, it is work which Rodolitz was qualified to do. - On March
;31, Donald Hartmann was hired as a regular helper in the storeroom,
and L. Harris as a temporary helper in - the stock and shipping
department, to do miscellaneous work and "pitch in" wherever
needed. In April, C. Halper was transferred from the Marshall,
Missouri, office to Roosevelt Field and also assigned to do work
similar to that which Rodolitz had done.41 Moreover, the respondent
conceded at the hearing that, rather than lay off employees, it was
its practice to transfer them from one type of work to another. , This
was particularly feasible in the stock and shipping department where
..the work obviously was less skilled and specialized than -in the
-machine shop.
The case of Geoghegan, who had been iii-the respondent's employ
since November 16, 1937, and who was also discharged, as we have
previously stated, on March 15, 1938, is in many respects similar to
that of Rodolitz. As in the case of Rodolitz, the respondent con-
tends that Geoghegan was discharged because there was no further
work available at the plant which he was competent to do; and that
an additional factor in his discharge, although not its- immediate
cause,.was his inefficiency.. - . .
" Indeed , Rodolitz testified that he completed his duties in connection with the Beazley
stock in approximately 2 weeks , that he was then assigned to work on a foreign "shipment
for a week and a half, and that thereafter , until the time of his discharge , he worked in
.the selection department continuously. The respondent claimed, as we have stated,•that
Rodolitz 's work on the Beazley stock was completed on March 15 and that Rodolitz's other
work was done by him only Incidentally to his Beazley work and during short intervals
when, because of the cold in the hangar in which the Beazley stock was stored, Rodolitz
came to a heated hangar to warm himself . We are not impressed with this contention
since it is improbable that work which was important and demanded skill and care, such
as selection work required , -would be assigned to an employee allegedly hired despite his
incompetence.
45 The respondent asserts that Albertson was *hired on a temporary basis only ;he was in
fact discharged 3 months later. However, whether he was hired as a temporary or regular
employee is obviously immaterial ; indeed , if the respondent's contention is true, Rodolitz,
himself a temporary employee, was immediately replaced with another temporary employee.
9e Rodolitz and Albertson received $ 70.00 . per month ; Hartmann and Harris $ 65.00 per
month , and Halper $ 19.50 per week. The respondent does not contend, however, that
Rodolitz was discharged because other men were available who would do similar work for
less pay.
283031-41-vol. 20--25
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record discloses that Geoghegan. was a clumsy and awkward
worker.47 However, it further appears that in the middle of Febru-
ary Geoghegan was assigned to the general export department where
his duties consisted principally of heavy lugging and moving work;
that he continued to do such work until the time of his discharge;
and that he was regarded as competent for such duties.48 Moreover,
we do not believe that Geoghegan would have been retained in the
respondent's employ for approximately 4 months if he was hope-
lessly incompetent. We are satisfied and find that 'Geoghegan' was
capable of doing heavy lugging and moving work.
Carrington admitted that the respondent received steel shipments
every week. and that these shipments required heavy ' lugging of the
;type which Geoghegan had been engaged in doing. It also appears
that Donald Hartmann, who, as we have previously stated, was hired
on March 31, was assigned to do precisely the heavy work which we
.have found Geoghegan qualified to do.49 Indeed, there is no evidence
that' Geoghegan was not able to do the work for which Albertson,
whom we have also previously mentioned, was allegedly hired.-0'' ' We
have already referred to the employment, or transfer to the stock
and shipping department, of other employees; although it does not
-appear that Geoghegan was regarded by the respondent as competent
to do all the work which these other employees were engaged to do,
it is clear that the stock and shipping department was busy-, More-
over, as we have already indicated, it was a regular practice to trans-
fer employees from one type of work to another, rather than lay
them off. Under all the circumstances, we are convinced that work
-was available which Geoghegan was qualified to do, and that • his
'discharge, accordingly, was not caused by the lack.of such..work:5'
Having thus ' concluded that the reasons which the respondent
offered for . the discharges of Rodolitz and 'Geoghegan lack . merit
when examined in the light of the evidence, .we turn, to 'a consideration
of the evidence of another basis for the discharges. We have
previously found that Rodolitz. and Geoghegan were told by Carring-
47 The respondent introduced evidence of three specific ] instances of such clumsiness.
Two of these incidents occurred at least 2 months, and the other approxiinatelye " 1,iiidntb,
before Geoghegan ' s discharge. •
4$ Indeed , Hill testified that Geoghegan's discharge Was 'redommend 'ed. to him in. about
the middle of February , but that Geoghegan was not discharged at that time -because it
was desired to keep him if anything could be found for him to do. and "there was some
work [available ] he could do ." It is clear that Hill must have : had in mind the heavy
work to which Geoghegan was then assigned.
^Carrington testified that Donald Haitinann devoted ' approximately-70 - per cent of his
time to lugging , and the balance of his time to moving cases. -
w As previously appears, Albertson was hired on March 16 to.receive and store incoming
-goods ,' particularly a shipment of bolts which was received at this time , and to do anything
else required in that ' connection.
51 Geoghegan ' s wage was $75 per month . However ,'• as in the case of Rodolitz, the
respondent does not-contend that his wage was a factor in the decision to discharge him.
AIR ASSOCIATES, (INCORPORATED 375
ton, at-the time' of their discharges, that the Union had "messed
things up," that the men were foolish to join the Union or go ahead
with it, and that their loss of employment was due to the Union's
successful activity in behalf of the shop committeemen, who were
reinstated at this time. Moreover, Sylvester Small, who, as has been
stated, had been hired and assigned to stock work on February 26
when the two members of the shop committee from the stock and
shipping department were discharged, was retained in the respond-
ent's employ, in spite of the fact that. he was not regarded by his
foreman as competent and that his discharge had been recommended
soon after his employment. It was a matter of common knowledge
in the plant that substantially all of the employees in the stock and
shipping department and machine shop were union members.52 We
are satisfied and find that Rodolitz and Geoghegan were discharged
in order to counteract the effect of the reinstatement of the shop
committeemen, to create resentment against the Union among the
respondent's employees, and thereby to discourage membership in the
Union.
The respondent contends that it had no knowledge of the union
membership of Rodolitz and Geoghegan, and that, therefore, the
allegation that these employees were discriminatorily discharged
must fall. However, the prohibition of the Act extends to any dis-.
charge which is intended, or has as its purpose and effect, to dis-
courage membership in 'a labor organization; a discharge for that
purpose having been found, knowledge by the respondent of the
union membership of the employee for that reason discharged be-
comes immaterial .13 We find that the respondent, by discharging
Rodolitz and Geoghegan, has discriminated in regard to their hire
and tenure of employment, thereby discouraging membership in the
Union, and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
As has been' stated, Rodolitz and Geoghegan earned $70 and $75
per month respectively at the time of their discharges. At the time
,of the hearing Rodolitz was employed at Hoey Air Service where
.he had been employed since April 2, 1938, and where he received
$10.00 per week. He testified that he desired reemployment by the
respondent. At the time that Geoghegan first testified at the hearing,
.on' September 28, 1938, he' was employed temporarily on a poultry
"Thompson testified that before joining the Union on or about February 19, 1938, he
told Hill that the Union was "practically solid" in the plant. Hill did not deny Thomp-
son's testimony in this regard: •
53Cf. Matter of National Motor Bearing Company and International Union, United
Automobile 'Worker8. "of America, -Local 'No: 76, 5 N•.'L. R. B. 409, enf'd as mod ., National
Labor ' Relations Board v. National Motor Bearing Company, International Association of
Machinists and Production : Workers Local 1518, affiliated with InternationaZ ' As8ociation'of
Machinists v. National Labor Relations Board, 105 F. ( 2d) 652 (C. C. A. 9).
376 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
farm where he had been employed since August 1938 and where he
received $5.00 per week and room and board for himself, his wife,
and his child. However, on September 30, which was still during
the course of the hearing, Geoghegan secured employment as a sales-
man, and thereafter testified that his earnings exceeded those which
he received during his employment by the respondent and that he
did not wish to be reinstated.54
. Joseph J. Seifert. Seifert, who was discharged on March 17, 1938,
had been employed by the respondent as a first-class milling-machine
operator, for a period of approximately 7 months. He had .joined
the Union in December 1937, being among the first of the respond-
ents employees to do so, and had become a very active member. We
have referred to the fact that Seifert was shop steward and a mem-
ber of the shop committee; he was also active in the solicitation of
new members and the distribution of union literature. We have
also pointed out that the discharge of March 17 was Seifert's second
discharge; that he, together with the other members of. the shop com-
mittee, had first been.discharged approximately 21/2 weeks previously,
because they had left the plant to' attend a meeting between union
representatives and the attorney for the respondent after Hill had
refused to' grant them permission to do so; and that the committee,
-including Seifert, had been reinstated on March 16, after the Union
'had filed charges with the Board.55
During the morning of March 17, Seifert was assigned.by Hoff-
mann and Fildstedt, the foreman and assistant foreman, respectively,
of the machine shop, to a job ' which required him to drill holes in 30
'pieces of metal which were to be used as cylinder heads. This opera-
tion was part of a large rush order which was then nearing comple-
tion. A hole 27/64 inch in diameter and another hole 21/64
inch in diameter were to be drilled in each of the,'30 pieces.56
In 20 of the pieces, these holes were to be drilled in loca-
tions indicated on a drawing to which we shall hereinafter refer as
the master drawing, and which showed all distances, dimensions, and
other particulars for the entire cylinder head. In the other 10 pieces,
these holes were to be drilled in locations shown on a drawing to
which we shall hereinafter refer as the detail drawing, and which
64 During the oral argument before the Board, the attorney for the Union stated that
Geoghegan had subsequently lost his job as salesman and now wished reinstatement by the
respondent . However, no steps were taken to include such matter in the record and such
facts accordingly are not in the record as made, and upon ' which our findings and order
herein must rest.
55 As we have stated previously , these charges were dismissed by the Board upon the
reinstatement of the Committeemen.
66 It is not clear from the record whether Seifert was assigned to drill 2v/64 Inch holes In
only 20 , and 21,64 Inch holes in only 10, cylinder heads, or whether he was to drill holes
of both sizes in each of the 30 pieces , as required by the specifications for the job, which
are in evidence..
. ' ' •'. AIR. ASSOCIATE'S, ;INCORPORATED 377,
was intended to indicate only.. the locations required for the holes in
these 10 pieces, but no other data. Thus, the detail drawing bore
two notations, one indicating, "location of 1/4 pipe tap and 1/2 drill,"
and the other indicating "location of 1/8 pipe tap and 1/8 drill,"
and, in its lower left corner, the statement : "For all-other informa-
Lion see Dr. No. •H. C.-606 [the master drawing] from which it
differs only with regard to locations of tapped holes and their
passages."
• After Seifert had drilled 1 hole in each of 20 pieces, it -was dis-
covered by Fildstedt that Seifert had used a 1/2 inch drill instead
of a 27/64 inch drill, and that the holes were, consequently, too large.
It also appears that the holes were drilled in the location shown on
the detail drawing whereas the hole was to be located in that posi-
tion in only 10 pieces. Immediately after discovering the spoilage,
Fildstedt reported the matter to Hoffmann, who, in turn, notified the
office. The value of the spoiled cylinder heads was approximately
$60; their spoilage, although it resulted in a delay of at least 4 or. 5
days in the completion of the job, did not cause the respondent to
lose the order.57
.. Hill testified that when the spoilage was called to his attention, he
staggered, wrung his hands and tore his hair, and cried, "My God, what
are we going to do?" He immediately summoned to his office not only
Seifert, Fildstedt, and Hoffmann, but Reisner, the production man-
ager, as well, and after he-had examined both drawings, asked Seifert
how the mistake had occurred. Seifert explained that he had been
given only the detail drawing, that he had not seen the master draw=
ing, and that he understood the dimensions of the holes which he
drilled to be indicated by the notation "1/2 drill" to which we have
referred. Hill then replied that it looked like "sabotage," 58 but that
Seifert's explanation "could account for it," and that he would give
Seifert the benefit of the doubt and call it "a mistake." However, he
stated, it was the kind of mistake "we can't stand for around here.".
Hill, nevertheless, did not discharge Seifert immediately, but tele-
phoned Walter Chalaire, the respondent's attorney, who advised
against any action until Hill had received further word from
Chalaire,59 who would communicate with the Union's attorney. Hill
57 Hill testified that metal required to replace the spoiled pieces was received 4 or 5 days
later, and that it was then necessary to do other work on the raw material before it was
possible to do the drilling job which Seifert had started . The record does not reveal how
much time was required to do this preliminary work. Some of the pieces were subse-
quently used for samples , and others for scrap.
68 At the hearing Hill did not explain why he suspected sabotage and the record does not
disclose what reasons , if any, there were for Hill to believe that the spoilage was deliberate.
sa At the bearing Hill asserted that he also told Chalaire that he suspected that Seifert
had spoiled the job deliberately and that Hill was about to discharge him; that Chalaire
said ,, "My -God ! Wait a minute. Don't do that now: Just hold everything" ;.and that-Hill
replied, "This is a serious occurrence .. and, it is going to cause a tremendous loss."!
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Chalaire also agreed to propose to. the Union that iff_the Union
would compensate the respondent for the $60 loss occasioned by the
spoilage, Seifert's retention in the respondent's employ would be
arranged.60 Chalaire then communicated with Abner J. Rubien, the
attorney who was then representing the Union in its negotiations for
a contract with the respondent, advised Rubien of the spoilage and
that Seifert was about to be discharged, and made the proposal to
which we have referred. Rubien stated that he knew of no prece-
dent for such compensation by the Union but that if the discharge
were really caused by any misconduct on Seifert's part, the Union
would not object to his dismissal. Rubien also stated that he would
communicate with representatives of the Union and advise Chalaire
of their reaction. After approximately 1 hour, during which Rubien
attempted without success to reach a union official and Seifert waited
at the plant although the other employees had gone home, Chalaire
again called Rubien, who then advised him of his failure to reach
a union representative and suggested that Hill discuss the matter
with the shop committee. Chalaire thereupon telephoned Hill and
informed him of the result of his conversations with Rubien. As
we have indicated, the other employees, including the committeemen,
had already left the plant; Hill, however, discharged Seifert imme-
diately after his conversation with Chalaire.
The testimony with respect to the responsibility for the spoilage
is highly contradictory. In the light of all the evidence, however, it
appears that Seifert was at least partly responsible for the mistake
in that he proceeded to set up the job without reference to the master
drawing which was available to him, and that Fildstedt, and per-
haps Hoffmann, were also negligent in failing to discover the mistake
before Seifert had drilled all 20 pieces. It is unnecessary, however,
here to fix culpability for the spoilage, and we make no finding in
that regard, since we are of the opinion, for the reasons hereinafter
set forth, that irrespective of whether or not Seifert was at fault,
it was not his alleged mistake, but his activities on behalf of the
Union, which constituted the operative cause of his discharge.
It is undisputed that Seifert, who had had .4 years of experience,
was a skilled and competent machinist, that he had never made a
mistake during the 7 months of his employment by the respondent
previous to the spoilage in question, that he had been praised for his
ability and energy on at least 2 occasions, and that he was among the
most highly paid mechanics in the respondent's employ. Moreover,
it is clear from the fact that the respondent made the offer to retain
Seifert if the Union would reimburse it for the loss occasioned by
° Hill testified that he did not recall whether he or Chalaire first made the suggestion,
but that.he remembered discussing it with Chalaire immediately after the spoilage.
AIR ASSOCIATES, INCORPORATED 379
the spoilage,. that the spoilage of the job was not regarded as es-
tablishing Seifert's disqualification for further employment.61
The record also discloses that the respondent was seeking to ac-
quire competent mechanics, that "really skilled" workers were diffi-
cult to find, and that machine-shop employees were being constantly
discha>ged for general incompetence after short trial periods of
employment. Moreover, it was, apparently, not the respondent's
practice to discharge employees for similar spoilage of work. In
January or February 1938, 25 hydraulic pump bodies had been
spoiled, necessitating the redesigning of rack gear shafts, and causing
a loss which Hill testified might have been as high as $75. However,
this spoilage was not even called to Hill's attention at the time of its
occurrence, and was discovered by him several months thereafter,
when he saw a new design being made for the part. Similarly, sev-
eral weeks before Seifert's discharge it was necessary to reheat-treat
a substantial number of pieces of a job` of 700 connector shafts be-
cause their hardness was not according to specification; and in May
1 ,93812 a "particularly" large lot of bolts was spoiled on an automatic
screw machine. In. none of these cases was the employee involved
discharged or otherwise disciplined; and the respondent offered no
evidence that any employee was ever discharged in any other instance
for a single mistake such as that which Seifert is alleged to have
committed. Nor is there evidence that the respondent's policy in
this regard had undergone a change at the time of Seifert's discharge.
It is clear from what we have previously said that the respondent's
offer 'to retain Seifert upon reimbursement for its loss, had not been
definitely rejected by the Union or its attorney. We cannot believe
that Seifert would have been discharged at once, without a further
opportunity to the Union's attorney to discuss with union representa-
tives acceptance or rejection of the offer, if the respondent's offer
had been sincere. Nor do we believe that the respondent would
have immediately discharged Seifert without first discussing the
matter with the shop committeemen as was suggested.C3 On the
contrary, the haste with which Hill discharged Seifert indicates that
the respondent was eager to take advantage of the occurrence as an
excuse to rid itself of Seifert, but was anxious to create an appearance
of justification for the discharge.
61 Clearly the respondent 's offer to retain Seifert upon reimbursement for the damage
belies any belief by the respondent that he had engaged in sabotage.
62 Hill testified that the incident occurred in May or June . However , since he also test]-
fled that he discussed the matter with Hoffmann who was discharged on May 14, it is
apparent that it occurred before that date.
63 Hill testified that he spoke to Hartmann the next day and that Hartmann stated that
Seifert "should have been fired. He must have been nuts ." Hartmann , who had resigned
as shop chairman and vice president of the Union prior to the hearing , testified as a witness
for the respondent but was not questioned with regard to this alleged conversation.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the light of the foregoing, and of the entire record, we. are'
satisfied and find that Seifert's discharge is to be explained only by
his union membership and activities. We further find that the re-
spondent has thereby discriminated in regard to the hire and tenure
of his employment and discouraged membership in the Union, and
has thereby interfered with, restrained, and coerced its employees inl
the exercise of the rights guaranteed by Section 7 of the Act.
At. the time of his discharge, Seifert received 90 cents per: hour
and .worked a 40-hour week and occasional overtime. At the time.
of the hearing, he was, and had been since May 26, 1938, also working,
40 hours per week in a capacity similar to his employment by the
respondent, but was receiving 75 cents per hour. It also appears
that his home is 30 miles from his present place of employment and
9 miles from the respondent's plant, and that he desires to be
reinstated in the respondent's employ.
Charles Fred Werner. Werner, who had been, in the respondent's
employ since July 27, 1937, was discharged on March 27, 1938. On.
April 4, 1938,. he returned to the plant and applied unsuccessfully
for reinstatement. However, at the conclusion of the conversation
which he then had with Hill, he was given a letter of reference in,
which his services were described as having been satisfactory, and
he was stated to be "approved for reemployment."
The complaint alleged that Werner :was dismissed and refused
reemployment because of his union activities. The respondent, in
its answer, denied these allegations and at the hearing asserted that
Werner's union membership or activities were unknown to it-tat-the'
time of his dismissal, that the volume of work in the machine shop
declined rapidly after February 1938, and that the sole reason for
Werner's discharge and his failure thereafter to secure reemploy-,
ment from the respondent was a consequent lack of, available work.64
However, Hill testified that the respondent had raised additional
capital in the spring of 1937, and the respondent in its brief con-
cedes that it was "a new and growing business." Moreover, -Hoff-
mann, who, as we have stated, was the foreman of the machine,
shop, and who testified as a witness for the respondent, asserted
that the machine shop was "very busy" with production work up to
64 At the hearing , the respondent also asserted that Werner was slow ; however , Hill testi-
fied that this alleged slowness had no connection with his discharge , and that there was
no work available for Werner at any speed. As a matter of fact, we are convinced that.
Werner was not a slow worker. Hoffmann testified that he requested Werner to "speed up"
two or three times, and that Werner was a "little slow, especially .. . in the latter part
of his employment" ; however . when he was questioned further about these occasions he
invariably stated that -he could not remember . Fildstedt testified only that Werner was "a
little slow on [one ] job." Werner testified that Hoffmann never spoke to him about the
time required for any job , and that although Fildstedt discussed with him the delay - in