Boeing Airplane Co.

National Labor Relations Board - Board Decisions

Dec 24, 1942

46 N.L.R.B. 267 (N.L.R.B. 1942)

In the Matter of BOEING AIRPLANE COMPANY, WICHITA DIVISION and
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICUL-
TUAL IMPLEMENT WORKERS OF AMERICA` (UAW-CIO), AFFILIATED
WITH/THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
In the Matter of BOEING AIRPLANE COMPANY, WICHITA DIVISION and
INTERNATIONAL ASSOCIATION OF MACHINISTS, AFFILIATED WITH THE -
AMERICAN FEDERATION OF LABOR
Cases Nos . C-2287 and C-2288, respectively.-Decided December
24, 1942
Jurisdiction : airplane manufacturing industry
Unfair Labor Practices
Interference, Restraint, and Coercion: declaration of preference for bargaining
individually rather than collectively through medium of alleged neutrality
letters ; anti-union statements ; distribution of scurrilous anti-union handbills,
not effectively dissipated by employer.
Discrimination: demotion and discharge of supervisory employees by -discrimi-
natory enforcement of neutrality rule; discharge of non-supervisory employees
by discriminatory enforcement of rule prohibiting union activity on company
time; charges of, dismissed as to one employee. -
Remedial Orders : cease and desist unfair labor practices; reinstatement and
back pay awarded.
DECISION
AND
ORDER
Upon complaint issued -pursuant to charges duly filed by Inter-
national Union, United Automobile, Aircraft & Agricultural Imple-
ment Workers of America (UAW-CIO), affiliated with the Congress
of Industrial Organizations, herein called the C. I. 0., and by
International Association of Machinists, affiliated with the American
Federation of Labor, herein called the A. F. of L., against Boeing
Airplane Company, Wichita -Division, Wichita, Kansas, herein called
the respondent, a hearing was held before a Trial Examiner in
Wichita;' Kansas, from June 8 to 12, 4942, in which the Board, the
respondent, the C. I. 0., and the A. F. of L. participated by their
representatives. The- Board has reviewed the rulings of the Trial
Examiner made on motions and on objections to the admission of
evidence and finds that no prejudicial error was committed. The
rulings are hereby affirmed. -
46 N. L R B.. No. 35.
267
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 5, 1942, the Trial Examiner issued his Intermediate
Report, finding that the respondent had engaged in violations of the
Act. Exceptions to the Intermediate Report were thereafter filed
by the respondent, the C. I. 0., and the A. F. of L. The respondent
and the C. I. O. also filed briefs in support of their exceptions. Oral
argument was held before the Board at Washington, D. C., on
October 22, 1942. -
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, except
'insofar as they are inconsistent with our decision hereinafter set
forth.
The record is clear and we are convinced that, except as indicated
below, the respondent engaged in the unfair labor practices alleged
in the complaint. On January 17, 1941, shortly after the C. I. O.
and the A. F. of L. had begun ,their organizational activities among
the respondent's employees, the respondent, by J. G. Schaefer, its
vice president and general manager, sent a letter to all its employees,
stating the respondent's neutrality with respect to labor organizations
and setting forth certain "employee obligations." The letter con-
cluded as follows :
You are free to report to- the management any violation of the
foregoing principles as you are to report violations of any com-
pany rules. With the idea of maintaining harmony and maxi-
mum efficiency for the discharge of our National Defense obliga-
tions, I urge your cooperation in ' carrying out the letter and
spirit of this entire letter and to that end suggest that the points
herein set forth, be freely and openly discussed between any
element of the management and the employees-between you and
your supervisor, between you and ,your foreman, or between you
and the Plant Superintendents, or any. Department heads • you
choose, and finally between you and myself if you wish. It is
not necessary to discuss labor organization "behind one's back".
The management is willing and anxious to discuss with any em-
ployee, singly or in groups, any of the points herein set forth.
or any other matter which may tend toward a closer employer-
employee, relationship and understanding. The intervention or
interference of third parties for such a 'purpose is unnecessary.
The Trial Examiner found that the statements above set forth were
not violative of the Act and accordingly recommended that the alle-
gation •in the complaint, that the respondent advised "its employees,
to discuss grievances with it directly rather than through their unions
and union representatives," be dismissed. The C. I. O. excepted to
the Trial Examiner's finding and recommendation. We think the
BOEING, AIRPLANE COMPANY 269
exception well taken. Viewed against the respondent's entire course
of conduct, including the unfair labor practices subsequently engaged
in by the respondent, we are of the opinion and find that the state-
ments above quoted were intended to indicate and necessarily did indi
cate to the respondent's employees its preference for the discussion of
grievances with the employees directly, rather than with the collec-
tive bargaining representatives of the employees, and interfered with
their free designation of a bargaining representative. The respond-
ent's effort to discourage its employees in seeking outside representa-
tion is further evidenced by the testimony of employee Arthur Alexan-
der,'whom we find to be a credible witness, as did the Trial Examiner,
that in September 1941, he was informed by Assistant Plant En-
gineer Allen Steele that "he had went up and got us boys a five cent
raise and if I had any more difficulties, not to go to those boys down-
town, to talk to him and we would iron it out." We find that the
respondent by the foregoing statements has interfered with, re-
strained, and coerced its employees in the exercise of the rights guaran-
teed in, Section 7 of the Act.
Anti-union statements were found by the Trial Examiner to have
been made by Assistant Plant Engineer Allen Steele, Assistant Fore-
man Ed ' Tettenho;rst, 'Senior Supervisory Inspector Lester Wells,
Plant Engineer Otto Plagens, and Maintenance Foreman Robin Hill.
We agree with the Trial Examiner's resolutions of conflicting testi-
mony in connection with this'aspect of the case, and confirm his find-
ings thereon.
On or about July 22, August 1, and September 19, 1941, and Jan-
uary 12, 1942, vituperative anti-union handbills were distributed to
the respondent's employees at the gates of the plant. On July 29,
1941, the respondent posted notices on its bulletin boards, expressly
disavowing any responsibility for the handbill distributed in July.
The respondent contends that a notice attached to every employee's
pay check on October 1, 1941, and stapled in the handbooks given to
all new employees thereafter, constituted a repudiation of the August
and September handbills. However, at no time did the respondent
ever post or distribute notices disavowing the scurrilous anti-union
handbill distributed in January 1942. Furthermore, the record indi-
cates that the respondent never made any attempt to determine the
authorship of the anti-union handbills. In February 1942, a repre-
sentative of the Board investigating the case learned that Assistant
Foreman Dave Reiswig, Foreman Harold Stancer, Assistant Fore-
man Ed Tettenhorst, Assistant Tool Superintendent Thomas Babb,
Crew Chief John Parks, Leadman Walter Schauf, and employee Clem
Kreuter were responsible for the anti-union handbills, which fact was
called to the management's attention. Aside from a talk with the
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent's attorney, who, according to the testimony of Reiswig,
"sort of laughed about it," no official of the respondent reprimanded,
censured, or disciplined these employees for their flagrant violation
of the respondent's union-neutrality rule.' On the contrary, the
respondent thereafter promoted Stancer, Babb, and Schauf to the
more responsible positions of assistant superintendent, tool superin-
tendent, and crew chief, respectively. We concur with the Trial Ex-
aminer's finding that the respondent was under the duty of overcom-
ing and dissipating the effects of the unneutral acts and statements of
these supervisory employees, and we find that its statements to 'the
supervisors and its notices to its employees were insufficient to fulfill
this obligation. We find that the respondent, by advising its em-
ployees to discuss grievances with it directly rather than through their
bargaining representatives, by the distribution of the anti-union
handbills, and by the acts and statements of Supervisors Steele, Plag-
ens, Tettenhorst, Hill, and Wells, as above set forth, and also by its dis-
crimination between employees engaging in anti-union conduct and
those engaging in pro-union activities, as hereinafter set forth, has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
. _ The Trial Examiner has found that the statements made by Fore-
man Jordan to employees Homer Kelley and Dick Goss; and the de-
motion of Marion Engel were not violative of the Act. Homer Kelley,
who was president of the C. I. O. local, testified that in the latter part
of February 1942, when he was employed as a leadmen with 5 or 10
employees working under his direction, Foreman Cecil Jordan told
him that he would not be promoted to the position of crew chief be-
cause of his union - affiliation. Jordan denied making the statement
attributed to him by Kelley. Kelley was a leadm.an and was therefore
in line for promotion to a crew chief's position, many of which were
being created at that time by the rapid expansion of the respondent's
plant. We credit Kelley's testimony in this respect, as did the Trial
Examiner.
Leadman Dick Goss, a member of the C. I. 0., testified that in
March 1942, Foreman Jordan informed him that he had been recom-
mended for a crew chief's position, but added, "According to Schae
fer's memo you won't get it, but '... I turned it in anyway." There-
after Goss attended the April 8, 1942, meeting of supervisory em-
ployees addressed by Siefkin, attorney for the respondent. According
to- Goss, about the middle of April he informed Jordan that he would
be unable to accept the crew chief's position for the reason that "Mr.
Siefkin said in order to be a crew chief we would have to stop all our
union activities, and . . . under those conditions I couldn't accept the
job." Goss testified that Jordan then- replied, "Well, I turned you
BOEING AIRPLANE COMPANY .271
in a nickel raise .. . I will have to take that away from you and also
the crew chief's job." Since Jordan's version was substantially the
same as that given by Goss, we, like the Trial Examiner, accept the
latter's testimony.
The evidence with respect to Engel's demotion is, except as herein-
after indicated, largely uncontroverted, and we, like the Trial Exam-
iner, find it to be credible. Engel was hired by the respondent on
October 14, 1940, as a laborer in the tool and die department at 70
cents-an hour. By August 1, 1941, after receiving several 'wage in-
creases; f he was earning-85 cents an hour. On August 16, 1941, Engel
was transferred to Department 59 at the same wage rate of 85 cents
an hour, and sometime between October 1 and 15, 1941, he was pro-
moted to the position of crew chief 1 but without an increase in pay.
Engel joined the A. F. of L. on November 6, 1941, and thereafter wore
a small union pin which bore the designation "A F. of.L Local 751"
in letters so small that they could scarcely be read. Engel testified
that on November 21, 1941, Foreman Jordan inquired as to the type
of pin Engel was wearing. Engel informed him that it was an A. F.
of L. insignia. According to Russell James, an industrial engineer
attached to the respondent's personnel department, Jordan informed
him that Engel was a member of a union and inquired as to the pro-
priety of. a supervisory employee's belonging to a union in view of
the respondent's policy of neutrality in regard to union affairs. James
then conferred with Personnel Director George Trombold and Super-
intendent W. E. McArthur, and since, according to James, it was
established that Engel was a crew chief and wore his union badge in
the plant, they decided "to demote Engle [sic] from crew chief in
order to sustain our Company policy." Engel testified that on No-
vember 25, 1941, James informed him. that inasmuch as Engel was
wearing a union pin and attending union meetings, he was being de-
Inoted' from the crew chief position, and 10 cents an hour was being
cut from his wages, "because the Company has the policy that no
crew chief may belong to the union and hold that job.. .." Engel
further,, testified that, when Jordan then inquired whether Engel
would have the opportunity iri the future of regaining a supervisory
position, James replied, "not as long as he is a union member." Al-
1 The record discloses that crew chiefs generally direct the work of small groups of em-
ployees, varying in number fiom 1 to 17 Crew chiefs, in general, relay orders from' their
superiors, instruct, and lay out work for their subordinates, in addition to reading blue
prints and writing material requisitions Some crew chiefs perform manual labor 't'hey
are paid on an hourly basis, receiving an average of 5 cents an hour more than their highest
paid subordinates, whereas foremen and assistant foremen are paid on a salary basis. It
appears that crew chiefs have the power to recommend discharge, inasmuch as they are
questioned by foremen and assistant foremen with regard to the efficiency of employees in
the crews We find that crew chiefs are minor supervisory employees. We deem it un-
necessary at this time to determine whether or not crew chiefs may properly be included
in a unit of production and maintenance employees. -
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
though James could not recall the language he used when he informed
Engel of the latter's demotion, he testified that he did.-not believe that
he had made the statement attributed to him by Engel. Inasmuch as
James admitted that he was uncertain at that time whether the re-
spondent's policy prohibited -mere membership of a supervisory em-
ployee in a labor organization, and in view of the definite testimony
of Engel, who impressed the Trial Examiner as an honest and trust-
worthy witness, the Trial Examiner credited the latter's testimony,
and we concur.
It appears that Engel's demotion to a non-supervisory position
became effective on December 1, 1941, at which time his wage rate
was reduced to 75 cents an hour. As indicated previously, Engel had
received 85 cents an hour as a non-supervisory employee immediately
before he became a crew chief. It is therefore clear that Engel, in
addition to his demotion, also suffered a 10-cent reduction in his
hourly wage rate, as compared with the wage rate last received by
him as a non-supervisory employee. This wage reduction was never
specifically rescinded, although Engel's rate of pay was increased as
part' of a general wage in throughout the plant on December _1,
1941, and although his rate of -pay was again increased on March 1,
1942, to $1100 an hour.
" Prior to Siefkin's meeting with the supervisory staff on April 8,
1942,.Jordan offered Engel a crew chief's position but instructed him
to attend the meeting before acting on the offer. Within a few days
after attending this meeting, Engel informed Jordan that he could
not accept the position because, as he testified, "I was a member of
the AFL at that time, and was taking an active part in it" ' Engel
also testified that at the time of the hearing he was doing the same
amount and type of work as.his crew chief, who received $1.05 per
hour. - V
Lela Roach was hired by the respondent as a seamstress on Febru-
ary 17, 1937. She became a member of the C. I. O. on October 31,
1941. After receiving numerous increases and a promotion to the
position of crew chief, she was summarily discharged on November
17, 1941. The respondent contends that she was discharged because
she had violated the respondent's neutrality rule, prohibiting super-
visory employees from engaging in pro-union or anti-union activities.
Charles Cowan was hired by the respondent on September 16, 1939.
For 1 week he was employed in the maintenance department, and
then he was transferred to the stockroom where he thereafter worked
as a stock clerk until his discharge on November 24, 1941. Cowan
joined the A. F. of L. in August 1941, and wore an A. F. of L. union
button in the plant until sometime in October 1941, when he changed
his affiliation to the C. I. 0., and' thereafter wore a C. L.O. button.
BOEING AIRPLANE COMPANY 273
Shortly after joining the C. I. 0., he became a member of the local's
executive committee.
Wallace E. Keller was hired by the respondent on July 14, 1939,
and worked as a pipe fitter and general maintenance mechanic until.
his discharge on February 12, 1942. Keller joined the C. I. O. about
September 15, 1941, and shortly thereafter was elected vice president
of the local. At times he wore his union button in the plant. It is
undisputed that • both Cowan and Keller were competent workmen.
The respondent contends that it discharged Cowan and Keller for
violation of its rule prohibiting employees from engaging in activ-
ities for or against labor organizations on company time. In addi-
tion, it insists that Keller complained of working conditions and
was abusive towards the respondent, its management, and employees.
Our examination of the record convinces us that in the enforce-
ment of its neutrality rule the respondent did not afford the same
treatment to those employees who engaged in pro-union activities as
it -did to those who evidenced anti-union sentiments. The case of
Foreman Wayne Chastain is an example of such disparity of treat-
ment. It is clear that Chastain, who had made favorable comments
concerning one of the anti-union handbills to a class of student em-
ployees, was given an opportunity to comply with,the respondent's
neutrality rule and that he would not have been demoted if he had
promised to abide by the respondent's regulations. Engel, on the
other hand, was given no warning and no opportunity to comply with
the neutrality rule then in effect, but instead was summarily demoted
to a non-supervisory position at a rate of pay 10 cents lower than
'that which he had received before he became a crew chief.
The most patent example of the respondent's discriminatory
enforcement of its neutrality rule is its treatment of the supervisory
employees responsible for the anti-union handbills, who were, in con-
tradistinction to the demotion of Engel and the discharge of Roach,
neither discharged, demoted, nor even seriously reprimanded. In
fact, the respondent subsequently promoted three of those employees
to more responsible supervisory positions.
The respondent's discriminatory enforcement of its rule prohibiting
activity by non-supervisory employees for or against labor organiza-
tions on company time is well demonstrated by the Chase-Taylor inci-
dent, in which the respondent sought to invoke the rule against an
employee who made pro-union statements but took no steps against
an employee who made anti-union statements and consequently was
equally guilty of transgressing the rule. In addition, it is noteworthy
that neither Cowan nor Keller was warned of his violation of the
rule ; they were summarily discharged.
504080-43-col 46-18
274 DECISIONS OF NATION9L ILABOR--RELATIONS BOARD
In its brief the respondent attempts to distinguish the Chastain
demotion and to justify the summary nature of Roach's, Cowan's, and
Keller's discharges on the ground that Chastain was demoted prior to,
and Roach, Cowan, and Keller were discharged subsequent to, the
distribution of a notice by the respondent on October,1, 1941, which
stated in part, "Foremen, crew chiefs, -and other supervisory em-
ployees, whether on or off the job, must maintain this neutral attitude
at all times. Other employees must not, on company time, engage in
activities for or against labor unions. In order that there be no mis-
understanding, the Company desires to make it plain that any viola- -
tion of this order is ground for immediate discharge." The record
does not support the respondent's contention. Personnel Director
George Trombold testified that Chastain's demotion became effective
on October 16, 1941, explaining that "he may have been demoted prior
to that . . . but the changes in rate became effective at the beginning
of the next pay period." Pay-roll records of the respondent intro=
duced into evidence at the hearing indicate that pay days fall on or
about the first and sixteenth of each month. Therefore, it is reason-
able to infer, and we find, that Chastain was demoted sometime be-
tween October 1 and 16, 1941; after the publication and distribution
of the above-mentioned notice on October 1, 1941.
With regard to the application of the above-quoted notice to non-
supervisory employees, it should also be noted that the respondent's
attorney, Siefkin, when he instructed the supervisors as to their
obligations under the Act, cautioned them both before and after
October 1, 1941, against discharging their subordinates who discussed
unions on company time without an advance warning. For example,
at the meeting held on November 13, 1941, Siefkin said :
The question is: if some of the men are going around with union
cards or membership blanks, or something of that kind, what
should be done about it? The soliciting of union membership
,on the job is forbidden by company rules and is ground for sum-
mary discharge. I would warn the man that soliciting on com-
pany time is a violation of company rules and is ground for
discharge, and if they persist in the conduct there is nothing you
can do but report it to the personnel officer. I don't like to have
any man losing his job without first a warning.
In view of the pattern of discrimination thus disclosed, we conclude
and find that Engel was demoted and that Roach, Cowan, and Keller
were discharged because of their union affiliation and activities and
not because they had violated a rule of the respondent. For the pur-
pose of this decision, we deem it unnecessary to determine whether
3OEIN G AIRPLANE COMPANY' 275
the respondent 's neutrality rule restricting the union activities of its
supervisory employees was violative of the Act.2
We further conclude and find that the statements made by Foreman
Jordan to Kelley and Goss, as set forth above , were part of the
respondent 's discriminatory course of conduct against employees who
were members of the C. I. O. and the A. F. of L., and that the respond-
ent thereby 'interfered with, restrained , and coerced its employees
in the exercise of the rights guaranteed by Section 7 of the Act 3
Christian White was employed by the respondent about October 22,
1941, as a jig builder . He joined the A. F. of L. on November 1, 1941,
and thereafter wore his union button in the plant and regularly
attended union meetings . On November 26, 1941, he was discharged.
The respondent contends that he was discharged because, at the end
'of his 307day probationary period, it was discovered that his work
was unsatisfactory . The credible evidence shows that ' White was a
'competent , average workman and that , Marion Engel and John
.Simpson, respectively White's crew chief and leadman, were in-
structed by Foreman Jordan to prepare a memorandum stating, "Big
percentage of'White's work is insufficient [sic]. Has to be reworked,"
when, in fact, they had no reason to complain of his work . That the
memorandum was a sham is clearly shown by Simpson 's 'testimony
that 50 percent of the fittings and connections , the making of which
is the chief work of jig -builders , must be reworked , because slight
variations in temperature affect the accuracy of the work . We find,
as did the Trial Examiner , that Christian White was discharged
because of his union affiliation and not because of his alleged
inefficiency.
The Trial Examiner has found that Virgil Reeves was discharged
for cause . We have reviewed the evidence and agree with the con-
clusions of the Trial Examiner , and we shall dismiss the complaint
with respect to Reeves.
Upon the entire record, we find that the respondent , by demoting
Marion Engel and by discharging Lela Roach, Charles Cowan,
Wallace E . Keller, and Christian White, discriminated in regard to
2 We have held that supervisory employees may belong to labor organizations and yet be
prohibited from engaging in conduct permitted non-supervisory employees ' See Mattel of
Tennessee Copper Company and A. F. of L . Federal Union , No. 21,16¢, 9 N L R B. 117 ;
Matter of Marshall Field & Company and Department Store Employees Union, Local 291 of
United Retail Wholesale and Department Store Employees of America , C I. 0, 34 N L R. B.
I; Matter of The Sherwin -Williams Company and Chemical Workers Union No 22215 , American
Federation of Labor, 37 N L It. B. 260.
3 We find , as did the Trial Examiner. that the evidence does not support the allegations of
-the -complaint that the respondent ( a) encouraged 'employees , who had joined or assisted
labor organizations of their -own choos ng, to engage in conduct violative of company rules,
thereby giving cause for demotion or discharge, and (b ) maintained surveillance over
members of,the C 1.^0. and A. F of L '
1 ,
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, ti
their hire and tenure of employment, thereby discouraging member
ship in the C. I. O. and the A. F. of L., and interfering with, restrain-'
irig, and coercing its'employees in the exercise of the rights guaranteed
in Section 7 of the Act. • '
THE REMEDY
Having found that the respondent has engaged in unfair labor'
practices, we shall order it to cease and desist therefrom and to take
certain affirmative 'action' which we ,find necessary to effectuate the
policies of the Act.
We have found that the ' respondent discriminated in regard to
the hire and tenure of employment 'of Marion Engel, Lela Roach,
Charles Cowan, Wallace E. Keller, and Christian White. In order
to effectuate the purposes and policies, of the Act, we • shall order
that the respondent offer them immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges, and make them
whole for any loss of pay, they have suffered by reason of the dis-
crimination by payment to each of them of a sum of money equal
to the amount he" normally would have earned as wages during the
period from the date of the discrimination against him to •the date
of the offer of reinstatement, less his net earnings' during such
period.
Upon' the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft & Agricul-
tural Implement Workers of • America (UAW-CIO), affiliated with
the Congress of Industrial Organizations, and International Associa-
tion of Machinists, affiliated with the American Federation of Labor,
are labor organizations, within the meaning,of Section 2 (5) of the
Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Marion Engel, Lela Roach,' Charles Cowan, Wallace E.
Keller, and Christian White, and thereby discouraging membership
in International Union, United Automobile,' Aircraft &• Agricultural
4 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred - by an employee in-connection with obtaining work and working elsewhere
than for the respondent , which would not have been incurred but for his UD lawful, discharge
and the consequent necessity of his ' seeking employment elsewhere . See Matter ,of Crossett
Lambe'r Company and United Brotherhood of Carpenters • and Joiners of,America, Lumber and
Sawnvill Workers Union, Local 2590, 8 N L R B . 440 , Monies received for work performed
upon Federal , State , county , municipal , or other work-relief projects shall be considered as
earnings . See Republic Steel Corporation Y. N. L. R B, 311'U. S. 7.
I
BOEING AIRPLANE COMPANY 27T
Implement Workers of America (UAW-CIO), affiliated with, the,
'Congress of Industrial Organizations, and International Associa-
tion of Machinists, affiliated with the American Federation' of Labor,
the respondent has engaged in and is engaging in unfair labor
practices, within, the meaning of Section 8 (3) of the Act: -
3. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act,
the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
.of the Act.
5. The respondent has not discriminated with respect to the hire
and tenure of employment of Virgil Reeves.,
ORDER
Upon the basis-of the above findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Re-
lations Act, the National Labor Relations Board hereby orders that
the respondent, Boeing Airplane Company, Wichita Division,
Wichita, Kansas, and its officers, agents, successors, and assigns,'
shall :
1. Cease and desist from :
(a) Discouraging 'membership in International Union, United
Automobile, Aircraft & Agricultural Implement Workers of
America (UAW-CIO), affiliated with the Congress of Industrial
'Organizations, and International Association of Machinists, affili-
ated with the American Federation of Labor, or any other labor
organization of its employees, by discharging, demoting, or refusing
to reinstate any of 'its employees, or in any other manner discrimi-
nating in regard. to their hire and tenure of employment, or any
term or condition of employment ;
(b) In any other manner interfering with, restraining, or coerc
ing its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
,concerted activities for the purpose of collective bargaining or other
mutual aid or 'protection, as guaranteed in Section 7 of the- Act.
2. Take the following- affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Marion Engel, Lela Roach, Charles Cowan, Wallace
E. Keller, and Christian White immediate and full reinstatement
to their former or substantially equivalent positions, without preju-
dice to their seniority and other rights and privileges;
0
0
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole each of the employees named in the preceding
paragraph for any loss of pay he may haver suffered by reason of
the respondent's discrimination against him, .by payment to him
of a sum of money equal to the amount which he normally would
have earned as wages from the date of the respondent's discrimi-
nation against him to the date of the respondent's offer of reinstate-
ment, less his net earnings during such period;
(c) Post immediately . in conspicuous places at its Wichita,
Kansas, plant, and maintain for a period of. at least sixty (60) con--
secutive days from the date of posting, notices to its employees
stating: (1) that the respondent will not engage in the conduct
from which it is ordered to cease and desist in paragraphs 1 (a)
and, (b) of this Order; (2) that-the respondent will'take the affirma-
tive action set forth in paragraphs 2 (a) and (b) of this Order; andi
(3) that its employees are free to remain or become members of'
International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America (UAW-CIO), affiliated with the
Congress of Industrial Organizations, or International Association
of Machinists, affiliated with the American Federation of Labor;
and that the respondent will not discriminate against any employee'
because of membership or activity in those organizations;
(d) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what steps,
the respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges that the ' respondent has discrimi-
natedin regard to the hire and tenure of employment-. of Virgil
Reeves,
INTERMEDIATE REPORT
Mr. Paul Nachtman and Mr. Robert S. Fousek, for the Board.
Foulston, Siefkin, Bartlett & Morris, by Mr. George Siefkin and Mr. George B.
Powers, of Wichita, Kansas, for the respondent.
Mr. Baron DeLouis, of Wichita, Kansas, for the C. I. O.
Mr Cody Quinn, of Wichita, Kansas, for the A. F. of L.
STATEMENT OF THE CASE
Upon amended charges duly filed by International Union, United Automobile,
Aircraft & Agricultural Implement Workers of American (UAW-CIO), affiliated
with the Congress of Industrial Organizations, herein called the C. I. 0., and'
International Association of Machinists, 'affiliated with the American Federation
of Labor, herein called the A. F. of L, the National Labor Relations Board, herein .
called the Board, by George J Bott, the Regional Director for the Seventeenth
Region (Kansas City, Missouri). issued its complaint' dated May, 28, 1942, against
Boeing Airplane Company, Wichita Division, Wichita, Kansas, herein edlled the
1 On May 7, 1942, the Board ordered that the cases arising from the charges filed herein
by both unions be consolidated.
I
BOEING AIRPLANE COMPANY 27.9
respondent, alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (1) and
(3), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act Copies of the complaint, accompanied by notices of hearing
thereon,,were duly served upon the respondent and the unions
With respect to the unfair labor practices, the complaint alleged in substance'
that the respondent: (1) since on or about January 1, 1940, interfered with,
restrained, and coerced its employees by: (a) intimidating aid threatening with
discharge its employees who sought to affiliate or affiliated with the C. I. O. or the
A. F of L.; (b) warmig employees who sought to affiliate or did affiliate with the
C. I. O. or the A F. of L that they would be demoted, reduced in pay, or suffer
other penalties, and has demoted, reduced in pay, or otherwise penalized certain
employees pursuant to such warnings, (c) threatening to obtain affidavits from
fellow employees against employees who affiliated or were about to affiliate with
the C` I. 0 or the A F of L ; (c1) intimidating and threatening its employees
because of their wearing C. I. 0 or A. F of L buttons or pins; (e) encouraging
employees who joined or assisted labor organizations to engage in conduct viola-
tive of company rules, thereby giving fictitious cause for demotion or discharge ;
(f) preferring charges of infractions of company, rules and incompetency against
its employees for the reason that they affiliated with the C. I O. or the A. F. of
L.; (g) making statements prejudicial to or derogatory to the C. I O. and A F. of
L, and the members or leaders thereof, (h) persuading its employees to refrain
from joining the C I 0 and the A F of L.; (i) advising its employees to discuss
grievances with it directly rather than through a union or union representatives;
(j) threating employees with discharge unless saki employees executed improper
affidavits against known members or leaders of the C I. 0 or A F of L ; (k)
promising increases in pay, promotions and other benefits to employees who aban-
doned their membership and activity in the C I. O. or the A. F. of L ; (1) main-
taining surveillance over members of the C. I. 0 or the A. F. of L ; (in) causing
to be printed, published, and circulated among its employees handbills and circu-
lars vilifying and criticizing the C I 0 and the A F. of L, and the leaders and
members'thereof; (2) discharged and thereafter refused to reinstate Lela Roach,
Virgil Reeves, Charles M Cowan, and W. E. Keller because of their membership
and activity in the C I. 0 ; and (3) discharged Christian W. White and demoted
Marion Engel and thereafter refused to reinstate them because of their member-
ship and activity in the A. F. of L.
On or about June 3, 1942, the respondent filed its answer in which it admitted
some of the allegations in the complaint but denied that it had engaged in any
unfair labor practices
Pursuant to notice, a hearing was held at Wichita, Kansas, from June 8 to
June 12, 1942, before the undersigned. the Trial Examiner duly designated by the
Chief Trial Examiner. The Board and the respondent were represented by counsel
and the unions by their representatives, and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties During the hearing,
counsel for the Board moved to strike certain allegations and exhibits contained
in the respondent's answer This motion* was denied He also moved to strike
certain of-respondent's exhibits received in evidence over his objection. Decision
on this motion was reserved Counsel for the respondent moved to strike certain
testimony relative to certain Board Exhibits. This motion was denied At the
conclusion of the hearing. Board's and respondent's counsel renewed the aforesaid
motions and decision thereon was reserved ; they are now hereby denied. Board's
counsel moved that the pleadings,be conformed to the proof This mot ton was
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted. The parties were afforded an opportunity to argue orally before, and
to file briefs with, the undersigned ' None of the parties argued orally or filed
briefs.
Upon the record thus made and from his observation of the witnesses, the
undersigned makes in addition to the above the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a Delaware corporation with its principal office in Seattle,
Washington, is licensed to do business in the State of Kansas where it operates
a plant in Wichita, known as the Wichita Division, which is the only plant here
involved. At the Wichita plant the respondent is engaged in the manufacture,
sale, and distribution of airplanes and parts. In excess of 95 percent of the air-
planes and parts manufactured at the Wichita Division is sold and distributed
in States of the United States other than the State of Kansas; in excess of'95
percent of the materials used in the manufacture of -airplanes and parts in the
Wichita Division is shipped to that Division from and through States of the
United States other than the State of Kansas.
At the time of the hearing the respondent employed approximately 14,000
.employees.
IT. THE ORGANIZATIONS INVOLVED
International Union, United Automobile , Aircraft ,& Agricultural Implement
Workers of America (UAW-CIO) is a labor organization affiliated with the
'Congress of Industrial Organizations admitting to membership employees of the
respondent.
International Association of Machinists is a labor organization affiliated' with
the American Federation of Labor admitting to' membership employees of the
respondent.
Both unions admit to membership supervisory employees of the respondent
known as crew -chiefs.
III. THE UNFAIR LABOR PRACTICES
A. Background; interference, restraint, and coercion
Th record does not disclose the extent'of union organizational activities among
the respondent's employees prior to January 1941, but that some such activities
did, exist is evident from a notice posted by the respondent on its bulletin boards
an or about August 1, 1938, and which remained posted until March 28, 1940.'
This notice, after reciting Section 7 and Section 8 (1), (2), and (3) of the Act,
continued as follows :
The Stearman Aircraft Division 3 of the Boeing Airplane Company has not
recognized the Stearman Employees Federation' or any other bargaining
organization as a representative of its employees for the purpose of dealing
2 It is also evident from a charge that the A F. of L filed with the Board in March 1940,
that that organization was attempting to organize the respondent's employees prior to
January 1941
3 Now known as the Wichita Division,
• No evidence was adduced at the hearing concerning the nature and existence of this
organization, except that the stipulation settling the charges mentioned in footnote 2, supra,
gave the A F. of L a right to re-file a charge "in the event Stearman Employees' Federation,
the alleged company-dominated union returns to active existence."
BOEING AIRPLANE COMPANY 281;
with it concerning grievances, labor disputes, rates of pay, wages, hours of
employment or other conditions of employment ;
This company, intends to live up to the spirit as well as' the substance of
the National Labor Relations Act. We interpret these provisions to mean
• that every employee is free from any, interference or domination of the
employer in any form with respect to the exercise of his individual judgment
regarding labor organizations and that the employer must refrain from inter-
fering with' the formation or administration of any and all, labor
organizations.
Each employee of this company should exercise his own individual judg-
ment and the •Stearman Aircraft Division of the Boeing Airplane Company
does not' desire or intend to influence any employee in the exercise of that
judgment.
ALL EMPLOYEES ARE PROHIBITED FROM DISCUSSING ANY
LABOR OR LABOR ORGANIZATION MATTERS UPON THE COMPANY'S'
TIME OR PROPERTY.
In March 1940, the A F. of L filed charges with the Seventeenth Region of the
Board charging that the respondent had violated certain sections of the Act
This charge was disposed of by the respondent's posting of the following notice
on its bulletin boards on April 2, 1940:
Boeing Airplane Company does not approve or adopt any of the unfair
labor practices charged against its predecessor, The Stearman Aircraft
Company.
Boeing Airplane Company guarantees to each of its employees all of the
rights as set forth in the National Labor Relations Act which areas follows :
[Section 7 and 8 of the Act were here set forth in full.]
The Boeing Airplane Company, The Stearman Aircraft Division, Wichita,
Kansas, hereby notifies all of its employees that it intends to live up to the
spirit as well as the letter of the National Labor Relations, Act. Under this
Act every employee is free to join any Union of his choice and this Company
may not do anything to interfere with, restrain or coerce its employees in,
the exercise of this right:
Each employee should exercise his own individual judgment as to the
joining or not joining of any Union and this notice is posted in order that
each employee of this Company may be wholly free in the exercise of such,
individual judgment as to the matters set forth herein.
All supervisory employees of this Company are hereby instructed to make
,no statement and to take no action that will conflict herewith.
All employees of this Company are hereby instructed that this notice is not
to be removed, defaced or hidden by other notices in any manner and is to'
remain posted in conspicuous places in the plant for a period of sixty (60)'
days from this date.
On January 17, 1941, , the respondent, bye J. C. Schaefer, its vice president and
general manager, sent letter s to all of its employees which stated in part as
follows :
Some of the new employees have asked our opinion concerning unions and
in order that this may be of record for everyone, the following is set forth :
(1) The Company is operating under the provisions of the National Labor
Relations Act. ' Maybe you are better acquainted with it as "The Wagner
Act." It has always been the Company's intention to comply with all of
the provisions of this Act in spirit and in practice.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) You do not need to be a member of a labor union to obtain or hold a
job with,Stearman; neither will your union membership help or hinder you
in obtaining such a Job or advancing with the Company, insofar as company
management is concerned. You aie free to join or not join any church, lodge,
political-party, labor union or social organization of your own choosing and
your membership or non-membership in any such democratic organization
will not'influence your job, in any -way These are rights flowing to every
individual in our democracy and the management of this Company will go
along with you in preserving them in every possible way.
-(3) We cannot assist financially or otherwise in the promotion or forma-
tion of any union or unions nor are we permitted to prevent the organization
or formation of a union or unions so long as the activity is in accordance with
the Wagner National Labor Relations Act . '. .
(4) We will not act to influence, coerce or intimidate you or any employee
into joining or not joining or continuing membership in any union or any
other organization not inimicable to the National Defense.
(5) All foremen and supervisory employees have been instructed and di-
rected to abide strictly by-the rules hei ezn described and by the laws herein
referred to. We not only ask you to report any deviation, however slight,
fiom these raffles, but we urge you to do so
What I have-just outlined as management obligations, has a counterpart
in employee obligations. A few of. these obligations are listed in brief as
follows :
(1) You will not discuss during working hours Labor Union organizations,
the advantages or disadvantages of joining a union or not joining a union,
or any other matters which may pertain to unions or union activities.
'(3) It is your privilege and your duty to consider for yourself the benefits
or objections flowing from or incident to labor union membership , whatever
may be the type of organization.
(4) You should not coerce , or intimidate 'any other 'employes by word, act
or deed , with the idea of compelling him to join or not join a labor union
against his wishes . Neither are you to give active support for the accom-
plishment of the same result by the same method to one not an employee.
(5) Having ascertained the facts , it is your God -given unid constitutional
privilege to act as your conscience and your own good judgment direct in
joining or not joining any organization.
(6) You are free to report to the management any violation of the fore-
going principles as you are to report violations of any company rules With
the idea of maintaining harmony and maximum efficiency for the discharge
of our National Defense obligations , I urge your cooperation in carrying out
the letter and spirit of this entire letter and to that end suggest that the points
herein set forth , be freely and openly discussed between any element of the
management and the employees-between you and your supervisor , between
you and your foreman, or between you and the Plant Superintendents or, any
Department ' heads you choose, and finally between you and, myself if you
wish. It is not necessary to discuss labor organization "behind one 's back."
The management is willing and anxious to discuss with any employee , singly
or in groups , any of the points herein set forth, or any other matter which may
tend toward a closer employer -employee relationship and understanding.
BO> MNG AIRPLANE COMPANY 283
The intervention or interference of third parties for such a purpose is
_unnecessary." [Emphasis added.]
Sometime in January 1941, the A F of L started to organize the respondent's
employees and held its first meeting in that month and thereafter continued to
hold weekly meetings In February 1941, employee Homer A. Kelley discussed
with an international representative of the C. I: O. plans for organizing the re-
spondent's employees What steps were taken in this regard between then and
September 1941 is not clear from the record, but it is clear that the first organiza-
tional meetings took place between September 3 and 12, 1941. As a result of
these activities, a chapter of the C. I. 0 known as Local 935 was established
in October of 1941, and officers were elected, consisting in part of Kelley as
president and Wallace E Keller as vice president.6
On March 13, 1941, J E. Schaefer, vice president and general manager of the
respondent, notified all' the supervisory employees as follows :
I inn again reminded to urge all foremen and crew chiefs to avoid every
evidence of participation or prejudice in any unionization activities. Under
prevailing law the officers of the company, department heads, foremen and
crew chiefs are not permitted the privilege of advising or encouraging
for or against any union. Employees activities in this connection are not
to be indirectly or directly. interfered with so long as these activities do-not
take place on company time.
On July 22, 1941, the respondent posted on its bulletin boards copies of the
following notice:
1 On March 13th and previous to that time, all foremen and crew chiefs
were Asked to carefully avoid every evidence of participation or prejudice
in connection with any unionizat>„on activities. I am again reminded to urge
all foremen and crew chiefs to avoid participation in any unionization activi-
ties either for or against C. I. 0., A. F of L. or an independent union.
2. -[Section 7 and Section 3 (1), (2), and (3) of the Act appeared, here.1
3. The National Labor Relations act is subject to many interpretations
and many court decisions which govern anc] direct employees and manage-
ment. It is important that these interpretations and decisions be thoroughly
understood in order that everyones rights be properly and adequately pro-
tected The crew chiefs and foremen are enjoined to familiarize themselves
with their obligations under this act and not to take any steps which will
place the company in an embarrassing light or in violation of the act.
At about this time, scurrilous anti-union handbills were distributed to the
respondent's employees at the gates of the plant.' On July 29, the respondent
expressly disavowed any responsibility for the above handbills by posting notices
on its bulletin boards which stated :
The last paragraph of this letter foims the basis of an allegation in the complaint that
the respondent advised "its employees to discuss gi levances with it directly rather than
through their unioiis and union representatives " In view of the context in which the last
sentence of this paragraph appeared and in view of other notices to the employees clearly
expressing the respondent's neutrality as hereinafter discussed, and under all the circum-
stances of this case, the undersigned finds this language, although susceptible standing alone
of the interpretation claimed by the Board's counsel, not to he violative of the Act.
8 The cases of both Kelley and, Keller, allegedly discriminated against by the respondent,
are described hereinafter.
4 Handbills of the same anti-union character attacking both the A F. of L. aiid the C I 0
were similarly distributed about August -1 and September 19, 1941, and about January 12.
1942 The words "WE THE LOYAL EMPLOYEES" appear at the bottom of each circular.
The persons' responsible for this violent attack 'upon the unions and their relationship to the
respondent are more fully described below.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
You have been , instructed heretofore as to the attitude of the Management
of your company with reference to labor organizations . 'Briefly restated,
whether you join a union or do not, what union, if any, you may help pro-
mote, organize or join is your own private business-the management cannot
and will not take any part therein-and what you do will not affect your'
employment.
All supervisory employees have been instructed that they must not violate
this established policy. Anything said or done by a supervisory employee
which attempts , to give ' any different attitude of the Management than that
of strictest ( sic) impaitsality is unauthorized and forbidden.
There has recently appeared in the plant a handbill headed "Fellow Em-
ployees", and signed "We The Loyal Employees ". The Management did not
'authorize and had no knowledge of this before its appearance ; it expressly
disclaims any responsibility for either its writing , publication , or circulation.
The Management does not desire to and will not interfere with the private
life or lawful activities of any employee . Any of you , insofar as the com-
pany is concerned ( excluding supervisory employees , who, because of official
position might be thought to be voicing the attitude of the Management),
may say or write or publish anything you choose on politics, religion,
economics , labor organizations , ball-games , art (sic ) hard liquor, or any
other subject under the sun at any time or place EXCEPT ON COMPANY
PROPERTY OR DURING ACTUAL TIME OF EMPLOYMENT. Circulars,
pamphlets , handbills, clippings or anything of that kind must not be dis-
tributed on Company property at any time , regardless of the subject matter ;
during working hours you must not discuss labor organizations or other like
controversial matters.
'Help the Management maintain its impartial attitude
Help us also to keep our National Defense job always ahead of schedule.'
[Emphasis added.]
On July 29, 1941 , Robert Siefkin, a member of the law- firm that represents
the respondent , addressed three separate meetings of the respondent 's supervisory
personnel concerning the respondent 's obligations under the Act and in that con-
nection, the duties and the -responsibilities of the supervisory staff as repre-
sentatives of the management. Siefkin read Sections 7 and 8 of the Act and
8 Following the distribution of the "We The Loyal Employees" handbills in August and
September 1941, the respondent on about October 1, 1941, distributed notices to its employees
which read as follows :
You have been heretofore instructed, not only orally but by means of your handbook
and also in various bulletins, of the attitude of the Management with regard to labor
unions. To repeat, the Company cannot under the law, and will not, take any part in
labor union activities, either for or against-its attitude must be one of absolute
impartiality.
Foremen, crew-chiefs, and other supervisory employees, whether on or off the job,
must maintain this neutral attitude at all times Other employees must not, on com-
pany time, engage in activities for or against labor unions ,In order that there be no
misunderstanding, the Company desires to make it plain that any violation of this
order is ground for immediate. discharge.
The Management believes in and desires full and free discussion among its employees
(who are not in a supervisory capacity) on labor matters. Free and full discussion
means a discussion of facts, circumstances and happenings and should be based upon
truth and nothing else-it should appeal to reason and not to prejudices-"name
calling" and the use of abusive language-such as has been recently used, and which
the Management expressly repudiates-is evidence of weakness and not of strength.
If should not be resorted to. ,
We have but one lob to do-and it is a big one-to build airplanes Don;t let any
act of yours interfere with that job. We ask your sincere and intelligent cooperation.
i i
BOEING AIRPLANE COMPANY 285
-emphasized that the respondent intended to live up to the letter-and spirit of
the Act, and requested those present to maintain striet neutrality and not to do
or say anything for or against unions either on or off the company's premises.'
In his November and' March addresses to the supervisory employees, Siefkin
described in detail several instances that came to the respondent's attention
of supervisory employees who had violated the respondent's instructions to main-
tain a neutral attitude by making statements either for or against the unions,
and warned against a repetition of these violations. Siefkin stated that there
had been comparatively few infractions considering the fact that the respondent
employed over one thousand supervisory employees, and congratulated them on
this achievement. Siefkin also stated that other complaints had been called to
his attention by both the A. F. of L and C. I. 0. representatives which he did not
think of sufficient importance to "warrant any action at all." That other super-
visory employees did not maintain the neutral attitude requested by the re-
spondent cannot be doubted." The Board introduced testimony revealing several
A Siefkin also stated that supervisory employees could join a union but could not actively
participate in its activities because then they would be indicating a preference He also
stated as his belief that supervisors were not eligible for membership and was " positive they
cannot participate in an election." As found above , however , both unions herein admitted
the supervisory employees known as crew -chiefs to membership , despite Siefkin ' s remarks.
This raises the problem of whether an employer can piohibit its supervisory employees from
joining a union or to what extent , if any , it can restrict their activities on behalf of a union.
This issue is squarely raised in some of the alleged discrimination cases discussed below,
Within a period of a year just prior to the hearing , the respondent ' s personnel expanded
from approximately 8,000 to 15,000 employees , and included 1,477 supervisory employees,
960 of whom were crew -chiefs Because of this rapid expansion , many of the employees
were promoted to the position of crew -chiefs In order to keep the respondent ' s newly
appointed supervisors advised of the iespondent ' s attitude toward unions and of their
responsibilities as management representatives under the Act , Siefkin addressed them on -
November 13, 1941, and on March 26 and April 8 , 1942 , and his remarks in 'substance
were similar to those described above . That Siefkin himself was in doubt as to bow
far the respondent could go in restricting the union membeiship or activities of its super-
'visoly employees is evident from all his speeches In his July address, Siefkin disposed
of the problem by indicating that supervisory employees were not eligible for membership ;
by November , however, ' he became aware that crew -chiefs were eligible for membership
in either one or both of the unions and therefore stated "that a crew-chief should not-take
any active part in union matters and should not talk concerning it," and "to be absolutely
safe" he "would suggest that crew -chiefs not talk union matters even though they were
working crew-chiefs, and that they not join a 'union " As far as employees who were union
members before they became part of supervision were concerned , Siefkin advised them in
effect, that they could retain their membership and pay their dues, but could not attend
any meetings Again , in March, Siefkin advised the crew -chiefs that they had a right
to join a union but "the company , of course, would prefer not to have you join because
after you become in a supervisory capacity . you aie saying to the men under you
in substance , 'I have joined the union . Maybe it would be; a good thing for you to join
also ' " In regard to those who already were members of a union , Siefkih informed them
that it was their privilege to continue such membership but stated :
we ask that you do not attend union meetings where you become active in union
affairs or become active in any other way so as to lead the employees under you or
other, employees in the plant to saying "my foreman or,my crew -chief or supervisor
belongs to the union , he acts in union matters , maybe that is the attitude of the
company, maybe I should join the union too" ; or if you feel strictly * non-union, don't
take a non -union attitude You had a right to do that yesterday when you were an
employee , you don ' t have that right today.
io Although requested by the respondent as stated above to inform it of any infractions
of its rules by the supervisory staff, the employees to whom these statements were made
did not do so. They testified that they repoited these infractions to'their respective unions
Inasmuch as Siefkin stated that both the A. F of L. and C. I. 0 representatives called
his attention to other alleged violations , it must be inferred and, the undersigned finds
that these also were called to the attention of the respondent.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other violations on the part of a few supervisory employees f They will nowt;
be discussed.
W. E. Keller, vice president of the C. I. O. local, testified that on or about
January 20, 1941, Assistant Plant Engineer Allen Steele accused him of dis-
cussing unions on company time and said: "1 am not going to have any Union
men in my department " Keller further testified that about September 30, 1941,
his helper was removed and when he asked Steele the reason for this action, the
latter replied : "Pat, I have warned you and warned you, . . You will have
to get out of that thing you belong to, or else you are going to lose your job."
On another occasion, while Keller was en route to the plant in the same auto-
mobile with Steele and Plant Engineer Otto Plagens, the latter two individuals
discussed unions: Keller testified as follows concerning the conversation he
overhead : "Plagens made the remark, 'I wish there was an open season on
Union men,' and Steele said he would get his share if there was."" In the
latter part of August 1941, Steele called employee Arthur Alexander's attention
to the respondent's rule prohibiting solicitation for unions on company time
and warned him not to violate the rule, and stated that if lie had his way there
would be no union in the plant. Steele further told Alexander that he had given
him an increase ill wages. In September 1941, shortly after Steele had obtained
the wage increase for Alexander, he reminded him of this fact and advised
Alexander to come to him with his "difficulties" and,".not to go to those bobs
downtown " For the reasons indicated above, the undersigned' credits Alex-
ander's testimony over Steele's denials"
In March 1941, several employees were discussing, during their luncheon
period, unions and wages paid by other companies. Kelley, president of the
C. I. O. local, remarked that other companies paid higher wages because they
were unionized, and Assistant Foreman Ed Tettenhorst, who was also present,
stated: "Anybody who would join a labor union should be shipped to Russia."^
About September 25, Maintenance Foreman Robin Hill told Kelley : "We don't
want any labor union in here at this time because working conditions are too
good." 14
11 Wbile Keller fixed, the time of this incident as September 1941, it no' doubt occurred
sometime prior to May of that year , since both Plagens and Steele moved to within walking
distance of the plant prior to May 1941. Flagens denied making the remark attributed
to him, although admitting he may have discussed unions with Steele, while Steele testified
he could not "remember" any such conversation The undersigned credits the testimony
of Keller and finds that Steele and Flagons made the remarks ascribed to them. Steele
denied making the other statements set forth above That Steele was opposed to unions
is shown by the undenied, credible testimony of Keller that unbeknownst to Steele,' he
overheard the latter say to employee Arden Strong • "That John L. Lewis ought to be
killed, to hell with the God damn Union " Since, as described below, employee Arthur
Alexander also attributed anti-union remarks to Steele, it is more plausible and likely
that Steele did make the remarks described aboic and the undei signed so finds
12 Board's counsel also contended that Alexander was given more onerous work by Steele
because of his union membership and activities Within several weeks after Alexander
complained to Steele about his assignment , he was transferred to work more to his liking
Furthermore, during the period from September to December 1941, Alexander received
several increases raising his salary from 40 to'75 ' cents an hour Under all the circum-
stances, the undersigned finds that Alexander was not discriminated against when transferred
to work that he considered moie difficult
13 This finding is based upon Kelley's testimony which was denied by Tettenhorst. The
latter was one of the six supervisory employees responsible for the -vicious anti-union hand-
bills heretofore described In view of Tettenhorst's real feelings about unions and the fact
that the undersigned was more favorably impressed by Kelley's demeanor than that of
Tettenhorst's, be accepts the testimony of the foimer as being substantially accurate
14 This finding is based up"n Kelley's testimony which the undersigned accepts over Hill's
denial , since the undersigned was more favorably impre. sed by the demeanor of Kelley
BOEING AIRPLANE COMPANY 287
Employee Charles Cowan wore and A. F. of L. button in the plant but re-
moved it when he decided to switch his allegiance to the C. I. 0. About Decem-
ber 16, 1941, while Cowan wore neither an A. F. of L nor a C. 1. 0. button,
Senior Supervisory Inspector Lester Wells said to Cowan:_
I am. surprised. I see you are not wearing your Union button, and I am
glad to see that you have not joined up with a bunch of racketeers and
gangsters, and glad to see you get that button oif15
Following the distribution of the loyal employee handbills on September 19,
1941, and January,12, 1942, the respondent neither posted nor distributed notices
similar to those following the distribution of the August and September hand-
bills. Assistant Foreman Dave Reiswig testified that he alone originated the
idea for the circulars and discussed it with Assistant Superintendent Harold
Stancer,16 and both believed it "a good idea . .. to see if we couldn't keep the
[unions] out of the plant." 17 According to Reiswig, he alone was responsible
for the preparation and editing of the circulars.11 Stancer, with the aid of
15 This finding is based upon the uidenied, ciedible testimony of Cowan Later in the
day of the above incident, Carl Schoech, Cowan's crew-chief, apologized to Cowan for Wells'
remarks and told hun not to think anything about it because Wells "let his tongue get
away from him" and "he was wrong and soiry" Cowan also testified that his foreman.
E. F. Belden, sometime in October 1941, congratulated him for his good work and told
hun lie was getting a 5-cent an, hour increase, then pointed to his union button and said:
,"We want you to play ball with us, Charlie, you are a good man ' Belden admitted making
the last quoted remark but denied pointing to Cowan's union button, and in explaining his
remark stated that he wanted Cowan to cooperate with his crew-chief since Cowan had
expressed the opinion that he deserved the crew-chief's job. While Cowan may have
believed that Belden pointed to his union button, nevertheless, in view of the plausible
explanation made by Belden, the undersigned finds that Cowan may have misinterpreted
some innocent gesture of Belden's and therefore credits the latter's explanation
15 On April 1, 1941, Stancer was promoted to the position of "Dispatch Chief in Produc-
tion" ; on October 1, 1941, to foreman of production, and on June 1, 1942, to assistant
superintendent.
1' This quotation is from Stancer's testimony
is Since Reisweg bad never gone beyond the first year in high school, a study of the
grammatical construction, spelling, and terminology of the language used in the handbills
persuades the undersigned of the truth of this testimony. Some excerpts from the handbills
follow .
BARNUM SAID-
"There is a sucker born every minute."
Evidently the Stearman employees who are the Stooges for the Labor Union racketeers
havent forgotten what Barnum said, and now they aie trying to revive the old Myth
In the first place who of us intends to work in Seattle, or caie whether the boys in Seattle
contribute (sic) to a racket or not
Why do these Un.on racketeers tell us about someone several thousand miles away?
Why don't they tell us about Wichita? The A. F. 0. L. have a contract with Beech Aircraft
Co. and they admit in their booklet that beginners get 40 cents per hour and a 5 cent
per hour raise after every thousand (1,000) hours, and nowhere in the booklet do we
find it wage rate of $1 15 per hour for anyone Brother Stooges-Why don't you distribute
these booklets to the Stearman employees1 The reason is you dont care to admit that
the Stearman employees have a BETTER deal without a Union than Beechcraft employees
have with one
All labor Unions aie very liberal with other peoples money but not with their own . . .
Brother Stooges-it isnt necessary to sign your names to any of your literature because
we all know who you are. We knew you when you used to Scab at the Railroad Shops and
now you are Scabbing on us by trying to sell us out to a bunch of gangsters If you are
so in love with a Union why don't you quit here and go to work where they have one and
stop bothering us who know when we are well off.
• • s * s s s
The French Army was defeated by Hitler because they were betrayed by their Politicians
and by the Racketeers who contiolled their Labor Unions who constantly called strikes
i before the war for',any and every rediculous (sic) reasons and the production on armament
a
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crew-Chiefs Walter Schauf "' and John Parks made arrangements for the dis-
tribution of the handbills by certain farm hands at the respondent's gates'.
In addition to these individuals, Assistant Foreman Ed Tettenhorst.and Tool
Footnote 18-Continued. Footnote 19 on next page.
bogged down. The French Army is still in Prison Camps while French Labor is reduced
to cleaning Privie's, for their Nazi Masters and they can't strike, what a terrible lesson
to a Proud Nation.
America is traveling in the same direction, we have Lindberg and the Isolationist Sen-
ators Our Labor Unions are a colossal rackett (sic) dominated by gangsters who call
,strikes against the wishes of its members, as an illustration, the Allis Chalmers strike
was illegal because 40 per cent of the yes ballots were fraudulant, (sic) if you doubt this
statement then read the August 30, 1941 issue of the Saturday Evening Post.
The gangsters who control American labor Unions are the lowest creatures on 'earth,
'for example one Willie Piobb a west coast labor leader was recently returned to Chicago
to finish a jail sentence as a Pander which means (Pimp), the Union has since forgiven
him and he is back on the job, for further details read Pegler throws the book, in September
issue of the Readers Digest
We have a Jack Ass Brigade wearing Union buttons most of whom would never have
passed beyond the third grade except for the tact that the school was crowded and someone
else needed the seat.
Its nise (sic) to know that ours is the only major Aircraft Factory where the boys choose
to play ball with the management rather then (sic) surrender their liberties and pay tribute
to Gangsters and Pimps.
Labor Unions dont create jobs, they destroy them and when you lose (sic) yours, will
the Union feed you while you look for another? The answer is if you cant pay dues they
dont want to be bothered with you, so, Mr. Jack Ass what will you join when the big noise
is over??????
FELLOW EMPLOYEES
We are still being solicited by two rival groups of gangster Unions who wouldn't have any
scrouples (sic) against selling America to the Japs or anyone else in, order to make a• profit
for themselves and to spite each other.
These gangsters are today in complete control of all Labor Unions, and collecting millions
of dollars from the Suckeis who are stupid enough to pay tribute for the privilege of earning
an honest living; These gangsters live in grand style everywhere, including the leading
hotels in Wichita None of these gangsters are natives of the middle west. They are
imported from elsewhere and are getting rich while a few stooges and Pug Uglies (sic) do
the dirty work by constantly soliciting Boeing Employees to join the sucker list.
Many of you have asked the question-"Who Are The Loyal Employees?" The answer is,
"It is anyone employed by Boeing Airplane Company who is willing and anxious to give a
day's work for wages that are fair, and one who would rather be loyal to the Boeing Airplane
Company and the city of Wichita than to pay tribute to a bunch of gangsters and racketeers."
It is the duty of every Loyal Employee to repoit to your Foreman or Personnell (sic)
department anyone who solicits your membership for a Union ' It is the duty of everyone
of us, especially the new employees to stich (sic) together and fight this' evil. We have
kept them out in the past, so with the aid of our New Employees lets keep them out until we
win the War, and after that we can thumb our noses at them.
FELLOW EMPLOYEES
Several years ago we the Employees of Stearnian Aircraft Co decided to organize a Union
which would be Independent of any outside Influence and which would fulfill our particular
needs at a dollar a, year per person.
We mailed our petition for a charter to the Secretary of Labor at Washington, D. C., we
didn't get a Charter and furthermore we did not receive a reply It is therefore very
evident that Labor Unions as a whole are one colossal racket dominated by big time
racketeers most of whom are Foreigners, Communists, ex-gangsters and plain parasites.
We are now being solicited by two rival Unions who are very much interested in our welfare
and are offering cut rate prices of three dollars entrance fee and' $1 50 per month dues,
now by using some simple arithmetic it is easy to understand the motive of our would be
benefactors If we' add three dollars and eighteen dollars for dues and entrance fee and,
r,
BOEING AIRPLANE COMPANY 289
Superintendent Thomas Babb 20 contributed sums of money to help finance the
printing and distribution of the circulars. - The six supervisory employees
testified in substance, that neither higher management officials nor the employees.
were aware they were the individuals responsible for the handbills 21 It is the
contention of the respondent that, it had no knowledge that any of its super-
visory employees were responsible for the anti-union circulars above described
until sometime in February 1942, when a representative of the Board informed
it of this fact. The evidence so indicates. The record,also indicates however,
that at no time did the respondent make an investigation to determine who
was responsible for the "Loyal Employees" handbills. According to Reiswig,
within a day or two after being exposed, the six supervisory employees in
question decided to go to Sieflkin's office "to see what the score was, or what
we should do about it," and "about getting some legal advice." Stancer testi-
fied that Siefkin stated that he was surprised and somewhat shocked that
supervisory employees had violated the respondent's instructions and intimated
that they should be, discharged, but would wait for the advice of a representa-
tive of the Board. , Reiswig, on the other hand, testified that Siefkin "sort of
laughed about it," and said he had some of the handbills reprinted. At the
hearing, Seifkin stated that he had 100 of, the first circulars reprinted and still
had about 90 of them left, and there were "other people likewise interested in
Labor troubles and I sent those circulars to them." Shortly thereafter, Sief-
kin,conferred with representatives of the Board's Regional Office in Kansas
City and the charges filed herein were discussed. Although the parties could
not reach an agreement as to the disposition of the alleged discrimination
cases, Siefkin agreed, on behalf of the respondent, to accept and post any
"reasonable notice" in "strong language" concerning the anti-union handbills.
It is the contention of the respondent-that the Board's representatives agreed
to submit such a .notice, but instead of doing so forwarded to it a stipulation of
settlement providing for the reinstatement of the discharged employees as well
as the notice in question. This the respondent refused to sign, and contended
that because of this situation it did not post its own notice that it had "in the
course of preparation" at about that time22
Footnote 18-Continued.
multiply by six thousand employees we arrive at, the staggering figure of $126,000 00 per
year, boys, what gangster wouldn't fight for so much dough.
^' s t r s e •
We are of the Middle West and why shouldnt we remain free and Independent and play
fair with Our Employers who are at all times fair and willing to meet us more than half way,
why take chances with parasites who hope to play us for suckers and who wont go hungry
while we are out on strike, we have a duty to perform during a national emergency, lets
do it the American way because when the Emergency is past most of us will be looking
for` jobs and no Union (sic) on earth will help us then, so lets save the extra change and
help ourselves
'- Schauf was made a lead man in November 1941, and a crew-chief on January 16, 1942.
The classification of lead man is not officially recognized by the respondent but is commonly
used in the plant to designate an expert mechanic who has one or more helpers under his
supervision. The duties of lead men are very similar to those of crew-chiefs with the
exception that lead men perform manual work while crew-chiefs do not. That the respond-
ent recognized lead men as having supervisory status is evidenced by the fact that they were
invited to attend the meetings of supervisory employees addressed by Siefkin.
^ Babb was promoted to the position of a foreman on August 1, 1940, and sometime
thereafter became assistant tool superintendent and' on April 1, 1942, was made tool
superintendent.
a So far as the record discloses, only one° non-supervisory employee, Clem Kreuter, was
involved in this affair. Kreuter, on Reiswig's inquiry, recommended a printing firm, and
thereafter the printer delivered the handbills to Kreuter's home. Kreuter also paid the
printer with some of the money given him by Reiswig
a This proposed notice, however, contained no reference to the violations of the respond-
ent's instructions by its supervisory employees and, particularly, did not reveal that six of
its supervisory staff were responsible for the anti-union handbills.
504086-43-vol. 46-19
r
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It should be noted that, outside of what Siefkin may have told the six super-
visors, no official of the respondent reprimanded, censured, or disciplined them
for their flagrant violation of the respondent's rules. The respondent contended
that although it considered discharging these supervisors, it did not do so
because the Pearl Harbor incident of,December 7, 1941, had since intervened
and our country was at war, and the • discharge of these men would have seri-
ously impaired its production of airplanes, and because it was then in- doubt
as to whether it could control the action of its supervisors while on their own
time.
The issue is now presented as to whether or not the respondent, by the notices
to its employees and by its statements to its supervisors, all as described above,
effectively disavowed the actions of its supervisory personnel who did not main-'
taro the neutral attitude required by the Act and violated, the instructions in
this respect. In the considered opinion of the undersigned, the total actions, of
the respondent'did not operate as an effective repudiation. While-the respond-
ent correctly interpreted its obligations under the Act in the notices to its
employees and admonished its supervisory staff against any recurrence of partial
acts or statements, once the violations herein described were called to the re-
spondent's attention it never directly informed its employees that they were
contrary to its policy. Despite the relatively few oral anti-union statements
considering the large number of non-supervisory and supervisory employees in-
volved, they were of sufficient number, taking into account the incidents of
partiality mentioned by, Siefkin in his speech to the supervisors and those found
above, to have had an effect upon the employees-which it was the respondent's
duty to dissipate. An anticipatory notice by an employer that unneutral state-
ments by his supervisory employees will not reflect his attitude and which are
disavowed in advance, is not sufficient, without more, to overcome the effect of
subsequent manifestations of partiality where the employer learns of such
partiality.-'3 The obligation of the respondent to do more was particularly true
when it ascertained that six of its supervisory employees were responsible for
the circulation of a series of scurrilous anti-union bulletins. The failure of the
Board's representatives tc send to the respondent the notice agreed upon and
their insistence upon a full settlement of the charges filed herein, did not ab-
solve the respondent from directly informing its employees that it repudiated
ze Cf. In the Matter of the Nebraska Power Company, etc., 19 N. L. R. B 357 ; In the
Matter of Chicago Apparatus Company, etc ., 12 N. L R. B 102. In H. J. Heinz Company
v. N. L. If. B , 311 U. S 514, the Supreme Court, in commenting upon the liability of an em-
ployer for the unauthorized actions of his supervisory employees, stated :
We do not doubt that the Board could have found these activities to be unfair labor
practices within the meaning of the Act if countenanced,by petitioner , and we think
that to the extent that petitioner may seek or be in a position to secure any advantage
from these practices they are not any the less within the condemnation of the Act
because petitioner did not authorize or direct them . . .
The question is not one of legal liability of the employer in damages or for penalties
on principles of agency or respondeat superior, but only whether the Act condemns
such activities as unfair labor practices so far as the employer may gain from them
any advantages in the bargaining process of a kind which the Act proscribes To that
extent we hold that the employer is within the reach of the Board's order to prevent
any repetition of such activities and to remove the consequences of them upon the
employees' right of self-organization, quite as much as if he had directed them.
This is the more so here where petitioner, when advised of the participation of his
supervising employees in the organization campaign, took no step, so far as appears, to
notify the employees that those activities were unauthorized, or to correct the impres-
sion of the employees that support of the Union was not favored by petitioner and
would result in reprisals From that time on the Board could have found that peti-
tioner was as responsible for the effect of the activities of its foremen and group leaders
upon,the organization of the Association as if it had directed them in advance.
BOEING AIRPLANE COMPANY 291'
such action and would not tolerate its repetition24 In view of all the circum-
stances herein described, the undersigned believes and finds that the respondent
was under the duty of overcoming and dissipating the effects of the unneutral
acts and statements of some of its supervisory personnel.
The respondent, by the distribution of the anti-union handbills, and by the
acts and statements of Supervisors Steele, Plagens, Tettenhorst, Hill, and Wells,
all as described above, has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed by Section 7 of the Act.
B. Alleged interference, restraint, and coercion; the demotion of Marton Engel
Employees Dick Goss and Homer Kelley gave testimony in support of the-
allegation in the complaint that the respondent "Promised increases in pay,
promotions and other benefits to employees who abandoned their activity or
membership in the C. I. 0 or A. F. of L."
In the latter part of February 1942, at a time when Kelley was employed as
a lead man with 5 to 10 men under him, Foreman Cecil Jordan' told Kelley
that he could not make him a crew-chief because of his union affiliation2" Dick
Goss joined the C. I. 0. in September 1941, and in March 1942, was a lead man..
At about the latter time, Jordan informed Goss that he had recommended him;
for a- crew-chief's job but added, "According to Schaeffer's memo you won't
get it, but, . . . I turned it in anyway." Thereafter Goss attended the April
8 meeting of supervisory employees addressed by Siefkin 29 Concerning what
occurred about 2 weeks later, Goss testified as follows :
I went to the crew chief's meeting and Mr. Siefkin said in order to be
a crew chief we would have to stop all of our Union activities, and I told
Mr. Jordan that under those conditions I couldn't accept the job. I told
him I would like to have the job, but couldn't accept it under those con-
ditions, and he said, "Well, I turned you in a nickel raise," he said, "I will
have to take that away from you and also the crew chief's job. "'T
24 In view of the important part played by the respondent in fulfilling our war production
needs and the natural desire of the respondent to retain its skilled supervisory personnel
under such circumstances, the undersigned does not attempt to pass judgment upon the
respondent 's decision not to discharge the instigators of the handbills However, the
respondent 's disparate treatment of other supervisory employees who violated its instruc-
tions to be impartial, as discussed below, also affected the employees' judgment of the
asserted neutrality of the respondent and is one of the elements considered by the-under-
signed in reaching the conclusions above. It should also be noted that since the fall of
1941, the organizational campaigns of both the A. F of L and the C. I 0. have retrogressed
and this may fairly be attributed, at least in part, to the actions of the respondent' s super-
visory employees as found above.
Si This finding is based upon the testimony of Kelley. Jordan denied making the state-
ment attributed to him by Kelley. The realities all point to Jordan's making this nemark-
Kelley was a lead man and therefore in line for a crew-chief's job many of which were open-
ing up at about this time due to the respondent's rapid expansion. The fact that Kelley
was president of the C. I. O. local was undoubtedly known to Jordan and this alone, under
the respondent's instructions to its supervisory staff, would have made Kelley ineligible for
the crew-chief's position. The undersigned credits Kelley's testimony in this respect.
21 See footnote 9, supra. I -
sz On cross-examination,by Siefkin, Goss testified as follows :
Q. Then I went ahead and asked you and all other supervisory employees, in. order
to maintain a fair attitude, not to be active in union affairs, didn't I? -
A Yes ,
Q. And I asked if any party present who was a crew chief or supervisory employee;
felt they could not take' that attitude, I would prefer they not take a crew-chief's-job;
that, in substance?
A That is the reason I didn't take it. -
Since Jordan's version'was substantially the same'as that given by•Goss, the undersigned
accepts the latter's testimony as being substantially in accord witli-the fac`ts. =-- -- •'
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marion Engel joined the A. F. of L. on November 6, 1941, at a time when he
was a crew-chief, and from that day on wore a small union pin which bore the
designation "A F of L Local 751" in letters so small as would scarcely be read
with the naked eye. On November 24, 1941, Foreman Jordan inquired of Engel
as to the type of pin he was wearing and the latter replied that it was an
A. F. of L. insignia. Jordan then informed Russell James, an industrial engineer
attached, to the respondent's personnel department, that Engel was a member
of a union and inquired as to the propriety of a supervisory employee belonging
.to a union in view of the respondent's policy of neutrality in regard to union
affairs. James then conferred with Personnel Director George Trumbold and
Superintendent W. E. McArthur,'and since; according to James, it was estab-
lished that Engel was a crew-chief and wore his union badge in the plant,
they, decided "to demote Engle (sic), from crew chief in order to, sustain our
Company policy." According to Engel, on November 25, James informed him
that inasmuch as he was wearing a union pin and attending union meetings, he
was being demoted from the crew-chief position, and 10 cents an, hour was
being cut from his wages "because the, Company has the policy that no crew-
chief may belong to the union and hold that job . . ." Engel testified that
Jordan then inquired whether Engel had the opportunity in the future of
regaining his supervisory position, and James replied "not as long as he is a
union member." 28 After Engel's demotion, and just prior to Siefkin's meeting
with the supervisory staff on April 8, .1942, Jordan offered Engel a crew-chief's
position but told him to attend the aforesaid meeting before acting on the offer.
Within a few days after attending this meeting, Engel informed Jordan that he
could not accept the position because, as he testified, "I was a member of the
AFL at that time, and was taking an active part in it." 2B
If, within the meaning of the Act, the respondent properly restricted the union
activities of its crew-chiefs, then the statements made to doss and Kelley, and
the subsequent demotion of Engel, all as described above, were not violative of
the Act. The respondent's instructions to its supervisory personnel, as, attested
by its notices and by Siefkin's speeches, were apparently. made with the purpose
of protecting the primary right of the non-supervisory employees to freely decide
for themselves whether they desired to join a labor organization. Since crew-
chiefs hold supervisory positions, if unneutral statements concerning labor or-
ganizations had been made by them both on or off the respondent's premises, the
respondent under normal circumstances would be -held responsible for such
actions. Regardless of the findings made herein that the respondent in other
respects, violated the Act,.tile undersigned is convinced from the entire record
that these executives of the respondent who controlled its labor relations policies
wanted to remove from its supervisory personnel the power to do or say anything
that might be violative of the Act so that any decision in that respect would be
confined to the aforesaid officials. The, respondent's instructions, therefore, to
the crew-chiefs were not primarily made for the purpose of interfering with the
right of those employees to join a union. That these instructions, incidentally,'
28 Although' James could not recall the language he used when he informed Engel of his
demotion , he did not believe that he used the words attributed to him above . Inasmuch as
James admitted that he was uncertain whether the respondent 's restrictions at that time
included mere membership of a supervisory employee in a labor organization , and 'in view
of the definite testimony of Engel, who was an unquestionably honest, trustworthy witness,
the undersigned credits the latter's testimony.
29 Since Jordan's version of this incident was substantially the same as that of Engel, the
undersigned finds Engel ' s testimony to be in accord with the facts . Engel further testified
that he ,refused the offer of the crew-chief ' s job because he interpreted Siefkin's instructions
to, so limit his union activities as would make him only a nominal member, and for this
reason refused the crew-chief's position.
BOEING AIRPLANE COMPANY 293
had such an effect , however, cannot be doubted . It is now well , settled that super-'
iisory employees are "employees" within the meaning , of Section, 2 (3) and
Section 8 (3) of,the Act , and that any discrimination in regard ' to their hire' and
tenure of employment because of their union activities constitutes unfair labor
practices within the meaning of the Act.'° In this connection , the Circuit Court
of Appeals for the Eighth Circuit stated : 81
It is first argued'that Eckert is not an employee within the meaning of the
Act. The contention is that being a foreman he is an employer and not an
employee . Section 2 ( 2) of the Act is relied upon wherein an "employer"
is defined to include "any person acting in the interest of an employer."
Section 2 (3) of the Act is ignored . It provides that "The term `employee'
shall include any employee ." There is no inconsistency in these provisions
when facts are taken into consideration . A foreman , in his relation to
his employer , is an employee , while in his relation to the laborers under
him he is the representative of the employer and within the definition of
Section 2 (2) of the Act. Nothing in the Act excepts foremen from its bene-
fits nor from protection against discrimination nor unfair labor practices
of the master.
Supervisory employees , despite their authority over other employees, may' be
members of a legitimate labor organization to which non -supervisory employees
are admitted , without the employer thereby violating the Act, provided such
employees do not by statements or conduct bring the employer 's economic power
and interest to bear upon employees or otherwise act for the employer in such a'
, manner as to interfere with, restrain , or coerce employees in the exercise of
the rights guaranteed by the Act3z To the undersigned , one of the considerations
in determining the problem herein, is whether or not crew-chiefs belong in the
same bargaining unit as employees ' who work under them. Where, there is a'
history of rivalry among labor organizations claiming to represent employees,
it is important that an employer be free from the imputation of coercing his
• 80 Supervisory employees were held to have been discriminated against on account of their
union activities within the meaning of Section 8 (3) of the Act in the following cases • a
subforeman, National Labor Relations Board v. Fruehauf Trailer Company, 301 U. S .49
rev'g 85 F. (2d) 391 (C. C. A. 6) setting aside 1 N L. It B. 68; a foreman, National Labor
Relations Board v. Skinner and Kennedy Stationery Co., 113 F. (2d) 667 (C. C. A. 8) and
Matter of American Potash Company and Chemical Corporation and Borax-Potash Workers
Union, 3 N. L. It. B. 140, enf'g 98 F. (2d) 488 (C C A. 9) ; a graduate chemist acting as
director of research for a mining company, Eagle-Picker Mining .and Smelting Company V.
National Labor Relations Board, 119 F (2d) 903, 911 (C C. A. 8) ;.Powerhouse chief engi-
neer , Matter of Warfield Company and International Union of Operating Engineers, 6 N. L.
It. B. 58; newspaper district and branch managers, Matter of Star Publishing Co. and
Seattle Newspaper Guild, 4 N. L. It. B. 498 enf'd 97 F. (2d) 465 (C. C. A. 9).
11.National Labor Relations Board v. Skinner and Kennedy Stationery Co:, 113 F. (2d)
667 (C. C. A. 8).
11 See E. T. Fraim Lock Company eta., 24 N. L R B. 1190 In Matter of Tennessee Cop-
per Company and A. F. of L. Federal Union, No 21,164, 9 N. L. R B 117, a question pie-
sented itself whether foremen who were members of a legitimate labor organization could
utilize the employer's economic power to gain adherents among employees for their organ-
ization. The Board said :
Membership of supervisory employees in a labor organization involved in a contro-
versy over representation cannot confer on such employees a privilege to interfere, nor
can the immunity guaranteed employees by the Act be impaired or diminished by the
membership rules of any labor organization. The employees' right to a choice free
from employer interference is absolute Supervisory employees, although eligible for
membership in competing labor organizations, are forbidden by the Act, in their
capacity as the employer's agents, to interfere in the selection of employee bargaining
representatives, yet there need be no conflict by reason of their dual status. It is per-
fectly consistent for supervisory employees to belong to labor organizations and yet be
prohibited from conduct permitted non-supervisory employees.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in their choice of representatives. Here, both the A. F. of L. and the
C-I. 0., in effect, contend that crew-chiefs not only are eligible for membership
in their respective unions, but that they belong in the sanie bargaining unit as
employees who work under them. Since crew-chiefs'have the right to recommend
discharges and, are clearly identified with management, their participation in
the controversy between rival unions, has led, in part, to charges of employer
interference.39 Therefore, under the circumstances of this case, the undersigned
is of the opinion that crew-chiefs do not belong in the same unit as other non-
supervisory employees.84 Since the respondent in no way restricted the right of
its supervisory employees to join or be active in a labor organization of their own
choosing in an appropriate unit limited to supervisory employees, the under-
signed finds, upon all the circumstances herein, that the prohibitions the re-
spondent placed upon the union activities of its crew-chiefs were reasonable and
not in violation of the Act. Therefore, the statements made to Kelley and Goss
and the demotion of Engel, 'while normally under the interdiction of the Act,
were not so under the facts above found."
C. The discharges
Lela Roach was hired by the respondent as a seamstress on February 17, 1937,
and was discharged on November 17, 1941, at which time she was a crew-chief
In the sewing room. Roach joined the C. I. O. on October 31, 1941, at which time
she' was aware of the respondent's regulations that supervisory employees had
to maintain a neutral attitude both on and off the company's premises. It is the
respondent's contention that it discharged Roach for violating this rule. At the
hearing, Roach admitted that, while in, the plant one morning just before the
whistle announcing the commencement of the work day, she exhibited her union
card to an employee that worked under her 86 On the evening Roach joined the
G
-31 See In the Matter of Rem Manufacturing Co., Inc., and A. F. of L. , Federal Local Union
No. t0S93, 7 N L. R. B. 95.
" See Matter of Union Collieries Company, etc., 41 N. L . R. B. No. 174 ; In the Matter. of
Sherwin-Williams Company, etc , 37 N. L. R B. 260; Matter of General Motor Sales Cor-
poration, etc., 34 N. L R B., 115; Matter of Marshall Field & Company , etc., 34 N. L. R. B.,'
No. 1. The - undersigned reaches this conclusion despite evidence adduced at the hearing
that crew-chiefs of the respondent 's Seattle Division were in the same appropriate bargain-
Ing unit as non-supervisory employees , and that the respondent 's Seattle Division executed
a contract with the same A. F. of L. union herein , recognizing the right of that union to
bargain for crew-chiefs in that unit.
35 Since the Board either failed to produce evidence or the evidence adduced was insuffi-
cient to support the allegations ' of the complaint that the respondent ( a) encouraged
employees, who had joined or assisted labor organizations of their own choosing , to engage
in conduct violative of company rules, thereby giving cause for demotion or discharge;
(b) advised and exhorted its employees to discuss grievances with- it directly rather than
through their .unions and union representatives ; ( c) warned employees who sought to affiliate
or did affiliate with the C. I. 0. or the A. F. of L. that they would be demoted or reduced
in pay or suffer other penalties , and has demoted , reduced in pay, or otherwise ' penalized
other employees pursuant to such threats or warnings ; and (d ) maintained surveillance over
members of the C. I. 0. and A F. of L, the undersigned will also recommend dismissal of
these paragraphs of the complaint '
33 Roach testified that on another occasion she asked an employee in her crew named
Edith Long "if she was going to sign up" with the union. According to Roach, this
occurred during the luncheon period after one of the employees had distributed union
application cards to the girls . Long, a respondent ' s witness , testified , however, that about
a week or 10 days prior to Roach's discharge , the latter , during working hours, asked her
when she was going to join the C. I. 0 , and when Long exclaimed "You don't mean to tell
me you did ," Roach replied that she had joined and exhibited her union card . Long did
not inform the respondent of this incident until after Roach had been discharged. The
undersigned finds it unnecessary to resolve this conflict in view of the finding made below,
and because whether or not it occurred on company time , Roach was violating the respond-
ent's instructions.
BOEING AIRPLANE COMPANY 295
union she was accompanied by a member of her crew named Lila Melton who
joined the union that evening. Melton attended this meeting at the invitation
of Roach. Roach received no prior warning from the respondent that it believed
she- was violating its regulations. She learned about it for the first time on
November 17, when she was discharged by Employment Manager Ira Smith.
The latter told Roach that the respondent had definite proof that she had been
discussing labor organizations on company time and reminded her of the respond-
ent's rule in that respect.' Roach told Smith that she had not discussed unions
on company time but admitted doing so during luncheon period. Smith testified
that he was instructed by Personnel Director Trumbold to discharge Roach
because of her union activities on company time In view of the' propriety of
the respondent's instructions to its supervisory personnel to maintain a neutral
attitude, it must now be determined whether Roach was discharged because she
violated these instructions or because she was active on behalf of the C. I.- O.
It is pertinent in this respect to compare the treatment the respondent accorded
Foreman Wayne Chastain for violating the same rule when he made anti-union
statements to a group of non-supervisory employees. Sometime in September
or October 1941, Chastain made favorable comments about one of the anti-union
"Loyal Employee" handbills to a class of student employees. When the respond-
ent learned of this violation, and the refusal of Chastain to abide by its instruc-
tions in the sense that Chastain desired to continue to express himself against
unions, -the ,respondent demoted Chastain to a non-supervisory position. In
effect, Vice-President Schaefer testified that Chastain would not have been
demoted if he had promised to abide by, the respondent's regulations.ss The
respondent made no satisfactory explanation for the disparity of treatment
accorded Roach as compared to, Chastain for a violation of the identical rule.8°
,In view of the above it is clear that the respondent discharged a supervisor
who made pro-union statements but did not discharge one who made anti-union
statements. The undersigned therefore finds that the respondent discharged and
refused to reinstate Lela Roach because of her union affiliation and activities
and not because she violated a rule of the respondent.
Charles Cowan was hired by the respondent on September 16,1939, as a stock
clerk and worked as such until his discharge on November 24, 1941. ' Stock
chasers would bring requisitions for material to the stockroom where Cowan
and other stock clerks would fill the orders. The nature of Cowan's work was
such that he daily came into contact with many of the employees. Each stock
clerk of the about 10 then in the respondent's employ filled an average of 50 to 100
requisitions a day, and usually there would be some conversation between the
stock clerk and the employee who presented the requisition. Cowan joined the
A. F. of L. in August 1941, and wore an A. F. of L. union button in the plant
37 Employees Mary Harsberg and Irene Harrell testified and the undersigned finds that
Roach asked them to join the C. I 0 during working hours Only Harrell reported this
incident to the respondent prior to Roach's discharge
as On December 16, 1941, the respondent restored Chastain to the position of a foreman,
and at the hearing stated that it did so because of the urgent need for a supervisor of his
ability and upon Chastain's promise to abide by its rules.
3' Asked why the respondent had not demoted Roach rather than discharging her, in view
of the treatment accorded Chastain, Schaefer replied, "That might have been a reasonable
action to have, taken." As found above, the respondent justified its failure to discharge
the six supervisory employees (two of whom were crew-chiefs) responsible for the anti-
union handbills, because, of the war situation and its then legal doubts concerning the
rights of supervisors while on their own time.. But, according to 'Schaefer's admission,
Roach also became an indispensable employee after December 7, 1941, and when asked, in
view of the changed policy of the cmnpany, why it had not offered reinstatement to Roach,
Schaefer replied that Roach "became an issue :n this case, and we felt we should go through
and find out what our position should be, on occasions of that kind."
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until sometime in October 1941, when he switched his affiliation to the C. I. 0.,
and thereafter wore a C. I. 0. button. Shortly after joining the C. I. 0 , Cowan
became' a member of the local's executive committee.
It is the respondent's contention that it discharged Cowan for violating a rule
prohibiting its employees from engaging on company time "in activities for or
against labor unions."'0 The respondent did not prohibit its employees from
discussing other subjects during working hours. However,' under the circum-
stances described herein, the undersigned does not find that the institution of
the rule prohibiting -discussion of union affairs during working hours was dis-'
ucriminatory.
The issue- to be determined therefore, in the case of Cowan, is similar to the
one discussed in the case of Roach above, and that is, whether or not there was
a discriminatory application of a non-discriminatory rule.
Although Cowan admitted at the hearing discussing unions on company time,
he contended that he never initiated such conversations but was constantly being
asked questions pertaining to his union by fellow employees. The undersigned
is convinced, however, and finds that in some instances such conversations were
initiated by Cowan'° An important consideration in determining the issue herein
is the fact that Cowan was never warned by the respondent about his violation
of the rule. The respondent secured written, statements from some of the em-
ployees mentioned above that Cowan had discussed unions with them on company
time and then informed Cowan that he was discharged Siefkin, however, when
he instructed the respondent's supervisors as to their obligations under the Act
as described above, cautioned them against summarily discharging employees
who discussed unions on company time without an advance warning' It must
be borne in mind that the respondent's prohibitions concerning the discussion of
unions applied to both pro and anti-union statements by employees during work-
ing hours. It is therefore important to determine whether the respondent, in
enforcing this rule, applied it equally to transgressors who were in favor of
unions as well as those who were opposed to unions. An incident involving
. 4° Another bulletin to the employees on the same subject stated : "During working hours
you must not discuss labor organizations or other like controversial matters "
4; The employees were not prohibited from discussion of unions during their luncheon or
smoke periods. -
42 This finding is based upon the credible testimony of several of respondent's witnesses,
to wit, Russell Edson, Carl Schoech; James Arnold, Leslie Frank, Lynn Cowan, Kenneth
Plaff, and Edward Bryant, who testified in substance that Cowan asked them on company
time to attend union meetings. In crediting the testimony of these witnesses, the under-
signed does not find that Cowan's efficiency was impaired or that his work suffered as a
result of these conversations. Actually, Cowan was known to be;one of the fastest and
most accurate stock clerks, and many of the stock chasers for this reason soueht to have
Cowan fill their difficult requisitions Schoech, crew-chief over Cowan, testified that Cowan
was a very good and fast worker. Shortly prior to Cowan's discharge, the latter' s fore-
man, E F. Belden, recommended Cowan for a wage increase because of his excellent work
in completing a difficult inventory.
43 For example, Siefkin at one of the July 29, 1941, meetings with the supervisory staff
was asked the following question : "Suppose a man refuses to cease talking union activities
during working hours, could he be discharged for that?" Siefkin replied :
He could be because if he refuses'to obey orders it becomes an act of insubordination.
I prefer, of course, that no man be discharged merely for talking on the job, but any
labor organizer, or any man that knows about labor matters will instruct his people
that they must not, unless the company Consents, discuss labor matters on company
time and property, and he can be discharged for that if he continues it Any labor
organizer will so inform you. That's purely,a matter'of judgment to be exercised by
you on your recommendation. If a man persists in talking about union matters during
working time, and after being warned about it, persisted in doing so, it is a ground for
discharge. [Italics supplied ]
Siefkin made similar statements in his other addresses.
BOEING AIRPLANE COMPANY 297
employees L. Taylor and, Morris Chase throws some light on "the 'respondent's
attitude in this respect., On or about May 9, 1942, Chase started 'to smoke just
before the smoke period commenced and Taylor remarked about this to Chase.
, When' Chase took his time in returning to work at the conclusion of the smoke
interval, Taylor remarked, "what are you doing there working for Hitler?", and
Chase replied, "Any, son-of-a-bitch will join a Union is working for Hitler," to
which Taylor rejoined, "Any, son-of-a-bitch does not join the Union might be'
working for Hitler,-about the first thing Hitler does is to break the Labor
Unions."" This 'incident came to the attention of management through the
complaint of Chase. At the request of Vice-President Schaefer, General Super-
intendent A. Schupp investigated the matter. Schupp testified that Chase signed
a statement and his gravamen was that Taylor had made the remarks set forth
above. Taylor then presented his version of the incident to Schupp, but Chase
still insisted on pressing the complaint and offered employee Clyde Ellis as a
witness who would support his version of the incident. Concerning what occurred
when he was called into Schupp's office, Ellis testified as follows :
. . . he [Schupp] told me he wanted me to sign an affidavit against L. D.
Taylor, that he was talking Union on the Company time, and I asked him
what he wanted said in this affidavit, and what,theaf£idavit would be about,
and he told me that Schaefer wanted an affidavit.
Q. Did he hand you anything at that time?
A. He handed me a piece of paper, which said that Taylor said if ,a
son-of-a-bitch didn't join the Union he would work for Hitler, and I told
him I heard more than that, and couldn't sign one without signing one against
each party concerned.
Q. What did he say,?
A. Mr. Schupp told me one affidavit against each party concerned wouldn't
do any good, and dropped the whole thing, "Just forget about it
Q. What did you'do then? -
A. Well, we were,dismissed, and as we were being dismissed, Mr. Schupp
says, "I don't know how you stand on the Union," and I told him I was a,,
Union member; and he said, "Well, let's just drop the whole thing," and we
were dismissed then.' • -
At about this time, Assistant Foreman Reiswig'asked employee Earl Scott if
Taylor had solicited him to join the union on company time. Scott replied
that Taylor had not done so.
To the undersigned, the significance of the testimony surrounding the Taylor-
Chase incident is'the unusual manner in which the respondent marshalled its
44 These facts are based upon the undenied, credible testimony of Taylor. -
45 Schupp's version varies somewhat from that` of Ellis. 'According to Schupp, Ellis
refused to sign a statement against Taylor alone, ' stating that both men were at fault,
whereupon Schupp turned to Chase and offered to'drop the whole matter if it was agreeable
to Chase Schupp denied asking'Ellis about "the Union." Since the undersigned found
Ellis to be an impressively honest witness, he credits his version. Schupp then took Taylor
to Schaefer's office, and after the latter cautioned Taylor to abide by the respondent' s rules,
Schaefer stated :
. . . I am afraid that if you were saying such things that it might get out of hand
and I just wanted to stop it now. I don't want . . . the CIO people, or the AFofL
people to put charges against us that we are out of line. I don't want the men in the
plant who are not interested in either union to be bothered with any membership solici-
tation. I have to rely on you boys and thank God we still have a free country and I
will go the limit with you in protecting your rights, but to express those rights under
the law-you must do it off of company property. i
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forces from the vice president, down for the purpose of acting upon the relatively
minor complaint of an"employee who was himself the initial violator of the re-
spondent's rule prohibiting union discussion on company time. The respondent's
investigation revealed that Chase was equally guilty, if not more so, of violating
the rule as was Taylor. But the record does not reveal that Chase likewise was
called into Schaefer's -office and cautioned, or in any way censured for his part
in the affair. Would the respondent have acted in the same manner if Taylor,
had .complained that Chase had made an anti-union remark? Would Assistant
Foreman Reiswig have questioned other employees whether Chase had been guilty
of making anti-union remarks on company time? The undersigned believes not.
The respondent's actions in the Roach case discussed above, and the inferences
drawn from the disparity of treatment accorded a supervisory employee who made
anti-union remarks, apply equally to this situation. However, it may appear
from the facts found above that the respondent in other ways attempted to obey
the,Act, when the showdown came, and the respondent's real desires came to the
surface, it showed its hand. The undersigned therefore finds that the respondent
was motivated by the desire to discriminate in the treatment of both supervisory
and' non-supervisory employees for violations of its rules. The discrimination
here applied to union as to non-union employees and involved an intent to
distinguish in the treatment of employees on the basis of union affiliations or
activities, thereby discouraging membership in labor organizations.
Applying these conclusions to the Cowan case, the undersigned finds, in view
of all the facts, that the respondent was motivated by the union affiliation and
activities of Cowan in ordering his discharge rather than by his violation of its
rule.
Wallace E. Keller. The facts in Keller's case are in many ways similar to those
of Cowan's. Keller was hired by the respondent on July 14, 1939, and worked as a
pipe fitter and general maintenance mechanic until his discharge on February 12,
1942. Keller joined the C I. O. about September 15, 1941, and shortly thereafter
was elected vice president of the local. Keller at'times wore his union button in
the plant. The undersigned finds that his union membership and office in the local
was known to the respondent. The respondent contends that it discharged Keller
because lie violated the rule prohibiting the discussion of unions on company time
and because "he complained constantly about the working hours and conditions,
the tools which he'was furnished with which to perform his duties, found fault
with the food served at the cafeteria and the price charged therefor, and, in
general,, was abusive toward the company, the management,, the supervisory officers
and the other employees with the respondent." At the hearing, Keller admitted
that he may have made some casual remarks during working hours about unions
to other employees, but, as a general rule, denied doing so outside of the lunch
and smoke periods `e It was undisputed that Keller was a competent workman.
'B The undersigned finds that although Keller had violated the rule, he did not do so to
,the extent contended by the'respondent. This is borne out by the testimony of some of the
respondent ' s own witnesses : Arden ' Strong, who worked , in the same department as Keller,
.testified that Keller solicited him to join the C. I 0. so often that he complained to his
foreman, Steele, who told him to report it to the personnel office Strong did so, but
informed the respondent 's' officials that this solicitation did not take place on company
time , James Haught testified that Keller constantly spoke about how the union would get
more pay and better housing conditions and cheaper rent for the employees, and that
Keller contended that respondent 's officials were "cheap skates " who refused to pass on
,some of their profits to the employees. However, Haught admitted that those remarks of
Keller took place during the lunch and smoke periods but extended beyond those periods for
a minute or two. Haught, also testified that on several occasions on company time, Keller
casually remarked that there was going to be a union meeting that night and "be sure and
be there ." The undersigned credits the testimony of Strong and'Haught . Clair Sneed
testified that on one occasion during working hours Keller asked him about the union and
0
BOEING AIRPLANE. COMPANY 299
As found above, Keller's supervisor, Steele, warned Keller to withdraw from
the C. I. O. or he would be discharged. As in the case of Roach and Cowan, the
undersigned is of the opinion and finds that the respondent was motivated by the
union affiliation and activities of Keller in ordering his discharge rather than by
his violation of a company rule.
Christian White was employed by the respondent about October 22, 1941, as a
jig builder and was discharged on November 26, 1941. As a new employee, White
had to serve a 30-day preliminary probationary period to determine whether he
was assigned to the work he was most capable of doing or whether in all respects
he was a, satisfactory employee. White joined the A. F. of L. on November 1, 1941,
and thereafter wore his union button in the plant. White's only other union
activity was in regularly attending union meetings. In its answer,-the respondent
states that White was hired-
... as a probationary workman, and that near the end of the thirty-day
probation period his work was checked, found to be unsatisfactory in that
approximately one-third of the fittings and fixtures on which he worked had
to be reworked ; that the subordinate supervisory officers of the company
recommended that he be not employed as a regular employee because he was
incompetent as a workman, and in consequence, his services were terminated
on November 26, 1941.
On the morning of White's discharge, Foreman Jordan informed the latter that
work was slowing down and he would have to lay some men off, and wanted to
know whether White "wouldn't just as soon quit as be laid off." When White
replied that he had no reason to quit, Jordan then showed him a memorandum by
White's crew-chief, Marion Engel, and his lead man, John Simpson, stating that,
his,work was unsatisfactory.' Engel, the same individual whose case is discussed
above, testified that Jordan spoke to him about White the day before the latter's
discharge. Concerning this conversation, Engel testified as follows:
Jordan, . . . said Mr. White's work is inefficient, or to that effect, and
asked me to make a written statement to the office that he was inefficient
and I told him he was as good as any of them with me with not much ex-
perience and he said he had been complained on from the other shift, so he
said "make out the statement and discharge him." ...He said for me and
Simpson to get together and make up this paper for the office.
Engel then conferred with Simpson and told him that Jordan wanted them to
sign a written statement to the effect that White's work was unsatisfactory.
Although both Simpson and Engel were reluctant to make such a statement,
that at lunch he tried to get him to sign a union application card. Daniel Wooten testified
that on one occasion on company time Keller spoke to him about the advantages of belong=
ing to a union . The undersigned credits the testimony of Wooten and Sneed. The respond-
ent relied upon the testimony of Fred Snavely in the main, in support-of its contention that
Keller constantly complained about working conditions, the food and tools, and was abusive
toward the respondent and its officials. Snavely testified, in substance, that Keller solicited
him on many occasions during working hours to join the C. 1. 0. and was constantly com-
plaining about the company, and working conditions ; that while eating lunch one day in the
respondent's cafeteria, Keller stated : "Look at that God damn stuff. I could eat all of
that up, this is the damndest place I ever seen." The undersigned was so unfavorably
impressed by both the demeanor and testimony of Snavely, mainly because he was so
obviously heightening and exaggerating his testimony that the undersigned finds it difficult
to determine where the fact began and fiction ended. The undersigned therefore places
little, if any, reliance upon the testimony of Snavely. He therefore finds that the respond-
ent failed to support its contention that one of the reasons it discharged Keller was because
of his constant complaints and abuse of the respondent and its working conditions. .
11 These facts are based upon White' s undenied , credible testimony.
300 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
'since it was not a fact;' they felt that they had no alternative but to obey Jordan's
instructions, and therefore prepared a memorandum which read as follows :
BOEING AIRPLANE COMPANY
WICHITA DIVISION '
INTER OFFICE MEMORANDUM'
FROM : Marion Engel
TO: C. Jordan
SUBJECT:
11-25, 1941.
59-132
Big percentage 'of White's work is insufficient (sic) Has to be reworked
JOHN J. SIMPSON.
Jordan testified that a lead man who worked in the jig department named
Harry Jones, came to him towards the end of White's 30-day probationary
period and called to his attention that White "was laying down on the jobs 9
According to Jordan, he then observed White and found that he was "definitely
laying down on the job," and "didn't seem like he was wanting to work."
Jordan testified, further„that he then requested Engel 'to talk to White and
get him to attend to his work and if White would not do so he would discharge
him. It is not clear from Jordan's testimony as to just when this alleged con-
versation occurred, but it would appear therefrom that at this point Jordan
was merely asking Engel to warn White to attend to his work. If this did
occur, it is not clear from Jordan's testimony why, at apparently the same time,
he asked Engel to prepare a memorandum which was used as a basis for dis-
charging White. In other words, Jordan's testimony is clearly contradictory;
for he contends that when he ascertained that White was not attending to his
job, he asked Engel to prepare a memorandum which he used to discharge
White and at the same time says that he asked Engel to warn White that unless
White attended to his work that he would be discharged. Jordan also testified
that when he informed Engel about White, Engel agreed that White "had been
laying down on the job, that he was incompetent." Later on in his testimony,
however, Jordan testified that Engel did not tell him that White was an in-
competent, worker.' The undersigned does not credit Jordan's testimony, but
he does credit the testimony of Engel since he found the latter to be an ex-
ceedingly sincere, trustworthy witness.
In crediting Engel's version, it becomes apparent that, when Jordan asked
Engel to prepare a memorandum that White was inefficient, this was not the
real reason why Jordan was seeking to discharge him, and since the under-
signed believes Engel when he testified that White did not stall, this also was
not the reason. The undersigned 'concludes and finds, therefore, that Jordan
was motivated by the union affiliation of White in initiating his discharge.
"Both Engel and Simpson testified that they found no fault with White's work, and
found him to be an average workman. White worked directly under Simpson, and Engel
was the crew-chief over both of them. As a result, both Engel and Simpson observed
White daily and neither found fault with his work nor ever complained about him to
Jordan. Both Engel and Simpson were members of the A F. of L.
49 Jones testified that he informed Jordan that White "stood around quite a bit and
didn't seem to want to work "
' 60 Although the respondent's answer alleged that White was an incompetent worker, the
testimony adduced by it applied only to White's stalling and not to his alleged incompe-
tency. , For this reason, the undersigned recalled Engel as his own witness to inquire
whether or not, to Engel's observation, White had stalled. Engel-testified that White had
not done so, and the undersigned credits this testimony. -
BOEING AIRPLANE, COMPANY 301,
. Virgil, Reeves was hired by the respondent on October 21, 1941. Reeves
worked in the jig building department under crew-chief Engel for about a week
or 10 days when Jordan transferred him to the'welding department as a helper
under, the 'supervision of Assistant Foreman Tettenhorst O1 On Friday, Novem-
ber 7, 1941, Reeves asked Tettenhorst how he was doing in his work, and, when
Tettenhorst commented favorably, Reeves requested 2 days leave so that he
could move his family from Oklahoma to an apartment he had obtained in
Wichita. Tettenhorst granted the request and Reeves returned to the plant
on November 11. On November 18, Reeves joined the C. I. O. and wore his
union button in the plant on November 19, and on the 20th he was discharged.
In its answer the respondent states:
That Virgil E. Reeves was employed on October 21, 1941, as a proba-
tionary workman. That a check of his work near the end of the thirty-
day probation period disclosed that on two occasions he had been found
asleep while on the job, one occasion being when he was operating a power
saw. That his speed was slow, his skill poor, and his services were ter-
minated because he was an incompetent workman, and for no other reason.
Tettenhorst testified that on an occasion when he assigned Reeves to file some
two thousand-odd washers, Reeves fell asleep and he warned him not to let it
happen, again. On a later occasion, according to Tettenhorst, Reeves fell asleep
while operating a power saw. Tettenhorst could not recall whether these inci-
dents occurred before Reeves took the leave of absence described above. William
Reickel, a respondent's witness who worked as a welder in the same department
as Reeves, corroborated the testimony of Tettenhorst. Reickel testified that on
one occasion, Reeves was sitting on a bench with his head resting on his arm
and remained in that position for "a couple of minutes" until someone hit
the bench with a hammer and Reeves jumped up. Reeves, who denied ever
being asleep on the job, testified that on this occasion he had a cold and head-
ache and had taken some aspirin and "I laid my head an my hand on the vise
to rest my head while it was aching and I heard the boys laughing and cutting
up about my falling asleep at the switch, as they called it, and I wasn't asleep
none of the time." On the second occasion, according to Reickel, Reeves was
seated on a chair at the power saw (which operates automatically), and on
this occasion observed Reeves' eyes which he says were shut, and that Reeves
"finally got overbalanced and the chair turned over with hint and lie came out
of it." The undersigned was favorably impressed by both the demeanor and
testimony of Reickel and he therefore finds that, while Reeves may not have
been asleep on the first occasion, he at least appeared to be by the bystanders,
and finds that he was asleep on the second occasion. Tettenhorst, who initiated
the discharge of Reeves, testified that Reeves was slow and would not have made
a competent employee; that on the occasion when lie granted the leave of absence
the latter had been under his supervision for, several days and he did not know
then that Ile would turn out to be slow and incompetent.
Although the undersigned is somewhat suspicious of the motives of Tetten-
horst, since the latter was definitely opposed to unions, and was one of the
clique of supervisors responsible for the series of anti-union handbills, and
particularly since'Reeves was discharged within 2 days after he started wearing
a union button, nevertheless, the evidence reveals that Reeves wits slow and
was definitely asleep on at least one occasion. The undersigned therefore finds
n Reeves did not catch on quickly in jig building work and Engel Informed Jordan that he
would rather not have Reeves in his crew . Since Reeves had experience as a blacksmith;
Jordan believed he would do better in the welding department.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Board failed to establish that Reeves was discharged for his union
membership or activities.62 '
Upon the basis of the above facts and the entire record in the case, the under-
signed finds that the respondent, by discharging Lela Roach, Charles Cowan,
Wallace Keller, and Christian White, discriminated in regard to their hire
and tenure of employment, thereby discouraging membership in the C. I. O.
i and the A. F. of L., and interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above , occurring
in connection with the operations of the respondent described in Section I above,
have a close , intimate , and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor 'disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action in order to effectuate the policies of the Act.
Having found' that the respondent discriminatorily terminated the employ-
ment of Lela Roach, Charles Cowan, Wallace Keller, and Christian White, the
undersigned will recommend that the respondent offer to these individuals
immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights and privileges,
.and make them whole for any loss of pay they may have suffered by reason
-of the respondent's discrimination against them, by payment to each of them
of a sum of money equal to the amount which he (or she) normally would
have earned as wages from the date of the respondent's discrimination against
him (or her) to the date of the offer of reinstatement, less his (or her) net
earnings,` during said period.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Union, United Automobile , Aircraft & Agricultural Imple-
ment Workers of America (UAW-CIO), and -International Association of Ma-
chinists arerlabor organizations , within the meaning of Section 2 ( 5) of the Act.
52 After being discharged, Reeves went to a machine shop school for 6 weeks and on
February 10, 1942, applied for a machinist's position at the respondent's personnel office.
In filling out the form application furnished by the respondent' to applicants for employ-
ment, Reeves did not state under the caption "Occupational History-Give Last Employ-
ment First-Account for Last Ten Years," the fact that he had previously worked for the
respondent. Reeves was hired by the respondent as a machinist and worked that day but
on the following day was discharged when the respondent ascertained that he was the
same Virgil Reeves who had previously been in its employ The iespondent accused Reeves
of falsifying his employment application, but Reeves said he had merely left a question
unanswered. Under these circumstances, the respondent was justified in discharging
Reeves again.
•53 By "net earnings" is meant earnings less expenses, such as for transportation, room,
.and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
.eldscbarge and the consequent necessity of his seeking employment 'elsewhere See Matter
•pf,Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
dca, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R. B. 440 Monies received for
work performed upon Federal, State, county, municipal, or other work-relief projects shall
.Bee ,considered as earnings . See Republic Steel Corpos ation v. N. L. R. B., 311 U. S. T.
BOEING AIRPLANE COMPANY 303
2. By'discriminating in regard to the hire and tenure of-employment of Lela
Roach, Charles Cowan, Wallace Keller, and Christian White, the respondent has
engaged in and is engaging in unfair labor practices, within the meaning of
Section '8 (3) of the Act. t
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7' of the Act, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
- 4: The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
5.• By demoting Marion Engel and by. discharging Virgil Reeves, the respondent
has not engaged in unfair labor practices, within the meaning of Section 8 (3)
of the Act. '
6. The respondent has not engaged in -unfair labor practices, within the
meaning of Section 8 (1) 'of the Act insofar as the complaint alleged that it:
(a) encouraged employees, who had joined or assisted labor organizations of
their own choosing,; to engage in conduct violative of company rules, thereby
giving cause for demotion or discharge; (b) advised and exhorted its employees
to discuss grievances with it directly rather than through their union and union
representatives; '(c) warned employees who sought to affiliate or who did
affiliate with the C. ' I. O. or the A. F. of L. that they would be, demoted or
reduced in-pay or suffer other penalties; and has demoted, reduced in pay, or
otherwise penalized certain employees pursuant to such threats and warnings ;-
and (d) maintained surveillance over members of the C. I. O. and A. F. of L.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that, the respondent, Boeing Airplane Company, Wichita
Division, Wichita, Kansas, its officers, agents, successors, and assigns shall:
1. Cease and desist from : - , . - _
(a) Discouraging membership in International Union, United Automobile, Air-,--
craft & Agricultural Implement Workers of America (UAW-CIO), and Inter-
national Association of Machinists, or any other labor organization of its em-,
ployees, by. discharging or refusing to reinstate any of its employees, or in any
other manner discriminating in regard to their hire and tenure, of employment, or
any term or condition of employment;
(b) In any other- manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to,engage. in concerted ; activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of the,
Act.' - - ' -
• 2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to Lela Roach, Charles Cowan, Wallace Keller, and Christian White,
immediate and full reinstatement to their' former or substantially equivalent
positions; -without prejudice to their seniority and other rights and privileges,
dismissing, if, necessary, all employees hired since they were discharged to
perform work for which they were qualified ; - - .
(b) Make whole each of the employees named in the preceding paragraph
for any loss of pay he (or she) may have suffered by reason'of the respondent's
discrimination against him (or her), by payment to him (or her)'of a sum of
money equal to that which he (or she) normally would have earned as wages
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the time of the respondent's discrimination against him (or her) to the
date of the respondent's offer of reinstatement, less his (or her) net earnings u
during said period ;
(c) Post immediately in conspicuous places at its Wichita plant, and maintain,
for a period of at least sixty (60) consecutive days from the date of posting,
notices to its employees stating: (1) that the respondent will not engage in the
'conduct from which it is recommended that it cease and desist in paragraph
1 (a) and (b) of these recommendations; (2) that the respondent will take the
affirmative action, set forth in paragraph 2 (a) and (b) of these recommenda-'
tions, and (3) that its employees are free to remain or become members of
International Union, United Automobile, Aircraft & Agricultural Implement
Workers-of America (UAW-CIO), affiliated with the C. I. 0., and International
Association of Machinists, affiliated with the A. F. of L., and that the respondent
will not, discriminate against any employee because of membership or activity'
,in those organizations;
(d) File with the Regional Director for the Seventeenth Region within twenty
(20) days from the receipt of this Intermediate Report, a report in writing
setting forth in detail ,the manner and form in which the respondent has,com-
plied with the foregoing recommendations.
It is further recommended that unless on or before twenty (20) days from
the receipt of this Intermediate Report, the respondent notifies said Regional,
Director in writing that it will comply.with the foregoing recommendations, the'
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid. ,
It is further recommended that the complaint be dismissed insofar as it
alleges that the respondent discriminatorily demoted Marion Engel and discrim-
inatorily discharged Virgil Reeves, and insofar as it alleges that the respondent :
(a) encouraged employees, who had joined or assisted labor' organizations of
their own choosing, to engage in conduct 'violative of company rules, thereby
giving cause for demotion or discharge; (b) advised and exhorted its employees
to discuss grievances with it directly. rather than through their union and union
representatives; (c) warned employees who sought to affiliate or who did affiliate
with the C. I. O. or the A. F. of L. that they would be demoted or reduced in pay-
or suffer other penalties ; and has demoted, reduced in pay, or otherwise' penal-
ized certain employees pursuant to such threats or warnings; and (d) maintained
surveillance over members of the C. I. O. and A. F. of L.
As provided in Section 33 of Article II of the Rules and Regulations of the
'National Labor Relations Board, Series 2-as amended-any party may within
thirty (30) days from the date of the entry of the order-transferring the case
to the Board, pursuant to Section 32 of Article II of said Rules and Regulations,
file with the Board, Shoreham Building, Washington, D. C., an original and four
copies of a statement in writing setting forth such exceptions to the proceeding
(including rulings upon all motions or objections) as he relies upon, together
with the original and four copies of a brief in support thereof. As further
provided in said Section 33, should any party desire permission to argue orally,
before the Board, request therefor must be made in writing to the Board within
twenty (20) days after the date of the order transferring the case to the Board.
GEORGE BOKAT,
Trial Examiner.
Dated August 5, 1942.
"See footnote , 53, supra.