Consolidated Aircraft Corp.

National Labor Relations Board - Board Decisions

Feb 18, 1943

47 N.L.R.B. 694 (N.L.R.B. 1943)

In the Matter of CONSOLIDATED AIRCRAFT CORPORATION and INTERNA-
TIONAL ASSOCIATION OF MACHINISTS , AIRCRAFT LODGE No. 1125,
A.F.L.
Case No. C-2378.-Decided February 18, 1943
Jurisdiction : aircraft manufacturing industry.
Unfair Labor Practices
Interference, Restraint , and Coercion : anti-union statements ; warning employee
against filing a grievance ; requiring employees to give up union membership
when they were promoted ; unilateral action in regard to matters within the
scope of a bargaining contract with the union.
Collective Bargaining -Discrimination : although the interpretation and adminis-
tration of a collective contract already made and the settlement of disputes
arising thereunder are within the sphere of collective bargaining, and a
refusal by the employer to bargain collectively within that area might constitute
an unfair labor practice, and notwithstanding that the existence of a collective
contract does not preclude the Board from finding that unfair labor practices
have taken place, charges of a refusal to bargain collectively, dismissed when
Board found that it would not effectuate the statutory policy of encouraging
the practice and procedure of collective bargaining for the Board to exercise
its jurisdiction to determine whether disputes as to the meaning and adminis-
tration of such contracts constituted unfair labor practices when the'parties
had not exhausted their rights and remedies under the contract as to which
the'dispute had arisen-alleged discriminatory discharges of certain employees,
dismissed when the parties under the existing collective contract could: have
'resolved the dispute through arbitration, and when one of the discharges
had been settled to the mutual satisfaction of the parties.
Remedial Orders : cease and desist unfair labor practices
Mr. Daniel J. Harrington and Mr.. Charles M. Ryan, for the.
Board. ,
Mr. Royal E. T. Riggs, Mr. Vern R. Thomas, and Mr. Harris C.
Nelson, of San Diego, Calif., and Pruitt, Hale & Coursen, of New
York City, for the respondent.
Mr. Paul Hutchings, of Washington, D. C., for the Union.
Miss Grace McEldown;ey, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a second amended charge duly filed on July 17, 1942, by
International Association of Machinists, Aircraft Lodge No.. 1125,
47 N L R . B, No. 91.
694
/
CONSOLIDATED AIRCRAFT CORPORATION, 695
A. F. L., -herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Twenty-first Region (Los Angeles, California), issued its complaint
dated July 23,, -1942, against Consolidated Aircraft Corporation,-
San -Diego, California, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor
practices, within the meaning of Section 8 (1), (3), and (5), and
Section 2 (6) and (7) of the National Labor Relations Act, 49.
Stat. 449, herein called the Act. Copies of the complaint, accom-
panied by notice of hearing, were duly served upon the respondent
and the Union.
With respect to, the unfair labor practices, the complaint alleged
in substance that the respondent : (1) during February 1940, and
from May 1941 to the date of the complaint, (a) discriminated
against union committeemen, (b) hindered and prevented jthem
from performing their duties, (c) induced employees who protested:
against such actions to resign, (d) threatened to discharge and to
cancel departmental transfers of employees if grievances were pre-
sented on their behalf, (e) offered rewards to employees in order
to induce them to abandon their union membership and activities,
(f) advised employees that the Union would not bargain for them,
(g) instructed employees not to remain members of the Union,
and (h) advised them that it would be of no benefit to them; (2)
on January 1, 1942, discharged, and thereafter refused to reinstate
Arthur J. Fisher because of his union' membership and activity;
(3) on April 14, 1942, discharged, and thereafter refused to rein-
state Oliver H. Williamson, except that about May 1, 1942, it re-
instated- him with prejudice to the rights and privileges to which
he was 'entitled, because of his union membership and activity; (4)
on or about June 12, 1941, and at all times thereafter, refused to
bargain collectively with the Union, which was at all such times
the exclusive representative of the employees of the respondent
within an appropriate unit; and (5) by such acts, interfered' with,
restrained, and coerced its employees. in the exercise of the rights
guaranteed in Section 7 of the Act.
Thereafter the respondent filed a motion for a bill of particulars,
/dated July 30, 1942, and an answer, dated July 31, 1942. In its
answer, it admitted the allegations of the complaint with respect
to its business, denied the commission of any unfair labor practices,
and alleged certain affirmative matter by way of defense. On'
August 4, 1942, the Trial Examiner issued an order directing counsel
for the Board to furnish certain particulars to the respondent..
Pursuant to this order, counsel for the Board thereafter furnished
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD `
to .the respondent a written bill of particulars dated August 7,
1942.
Pursuant to notice, a hearing was held at San Diego, Cali-forma;
from September 1 through 8, 1942, before Josef L. Hektoen, the,
Trial Examiner duly designated by the Acting Chief Trial Exam-
iner. The Board and the respondent were represented by counsel and
participated in the hearing. Full opportunity to be heard, to ex--
amine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties.
,At the close of the Board's case, counsel for the respondent moved
to dismiss the complaint, and each of its allegations of unfair labor,
practices, for failure of proof. The motions were denied by the
Trial Examiner. At the close of the hearing, he reserved ruling'
upon a renewal of the, same motions, which he thereafter denied in
his Intermediate Report. A motion of counsel for the Board• to
conform the complaint,to the proof in respect to formal matters ' was
granted. During the course of the hearing, the Trial Examiner
made rulings on other motions and on the admissibility of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed: The rulings' are,hereby`
affirmed. At the close of the hearing, counsel for the Board and the
respondent argued orally, on the record, before the Trial Examiner.
A brief was thereafter filed with him by the respondent.
Thereafter, the Trial Examiner .filed his Intermediate Report,
dated 'October 16, 1942, copies of which were duly served upon the
parties. He found that the respondent had engaged in and was.
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1), (3)', and (5) and Section' 2 ((;) and (7)'
of the Act, and- recommended that the respondent cease and desist
therefrom and take certain affirmative action designed to effectuate
the policies of the Acct. On November 9, 1942, the respondent filed"
exceptions to the Intermediate Report, and on November 12, 1942, a
brief in support'of its exceptions.
Upon request of the respondent and pursuant to notice, a hearing
was held before the Board in Washington, D. C., on December 3,
1942, for the purpose of oral argument. The respondent and 07°e
Union were represented by counsel and participated in the hearing.
The Board, has considered the exceptions and briefs filed by the re-
spondent and, except insofar as the exceptions are directed to the
TrialA Examiner's"conclusions that the- respondent'has'engaged-in un-.
fair labors practices within the-meaning of Section 8 (3) and (5) of
the Act, finds them to be without merit.
CONSOLIDATED AIRCRAFT CORPORATION 697
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE. BUSINESS OF THE RESPONDENT
The respondent, Consolidated Aircraft Corporation, San Diego,
California, is a Delaware corporation having its principal office and
a plant at San Diego, California, where it is engaged in the design,
manufacture , development, and sale of aircraft, aircraft parts, and
accessories. During the fiscal year ended November 30, 1941, it pur-
chased materials, supplies, and equipment having a value in excess of
$5,000,000, more than 50 percent thereof being obtained from points
outside the State of California. -During the same period it sold fin-
ished products having a value of $95,000,000, substantially all of
which were delivered to points outside the State of California. Its
sales during the fiscal year ended December 31, 1941, to the United
States Army and Navy, were made f. o. b. factory, San Diego,
California.
r-The, respondent admits that it is engaged in commerce, within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED -
International Association of Machinists, Aircraft Lodge No. 1125,
is a labor organization affiliated with the American Federation of
Labor. It admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain; the alleged discriminatory
discharges
1. The contract _'
On June 12, 1941, the respondent and the Union entered into a
written, agreement'. in which the respondent recognized 'the Union as
the exclusive collective bargaining representative of all hourly paid
employees -and salaried inspectors, except supervisory inspectors and
confidential clerks; 2 agreed, in lieu of granting the Union a closed
1 This agreement, which superseded a prior agreement between the parties dated April
15, 1940 , was to remain in effect for "two years from its date or for the period of the
Unlimited National Emergency proclaimed by the President of the United States on 27 May
1941, whichever is the longer , or until amended by agreement after 15 -day notice by either
party."
2 This unit is substantially the unit which we have prei lously found appropriate for the
purposes of collective bargaining Matter of Consolidated Aircraft Corporation and In-
'ternattonal Association of Machinists , Aircraft Lodge No U25, 2 N. L It. B. 772 ; Matter of
Consolidated Aircraft Corporation and International Union, United Automobile Workers of
America, Local No 506, C. I . 0., 7 N. L R B. 1061, 8 N. L. It. B 205.
698 DE€IS1ONS ' OF' NATIONAL LABOR RELATIONS BOARD
shop, to reconiniend membership in the Union to its employees ; and
further agreed not to intimidate or in any way discriminate against
any employee because of union activities . The contract also defined
the workweek, established minimum rates of pay and hours of em-
ployment, set up a joint committee of representatives of the Union
and the respondent to review hourly wage rates in each department
in April and October of each year , provided for the granting of
"interim individual increases " in pay , and established a grievance
procedure . In addition , it provided for arbitration "if any of the
terms, provisions , or rates covered by this agreement are not settled
satisfactorily by the parties hereto."
On October 18, 1941 , the contract was amended to provide for a
13-cent per hour increase in pay, retroactive to August 9, 1941 , for all
employees who were on October 11, 1941 , receiving more than 65 cents
an hour. On' March . 5, 1942, it was further amended to provide for
continuing wage reviews , by departmental committees , for all employ-
ees on completion of 6 months ' continuous employment with the
respondent , with appeal to a "General Wage Committee," consisting
of three representatives of the Union and three of the respondent,
in deadlocked , cases , and arbitration in the event of disagreement by
the general committee . The grievance procedure was also amended
in various respects , in particular by the addition of a provision for
arbitration in case of disagreement between the committees represent-
ing the respondent and the Union. At the time of the hearing the
contract , as so ainended, was still in effect.
2. The disputes arising after the execution of the contract
a. The interim individual wage increases
As stated above, the contract provides for "interim individual
increases" in pay. Nevertheless, on November 11, 1941, I. M. Laddon,
then the respondent's works manager, without consulting the Union,
informed all department heads of the respondent that no further
interim increases were to be granted until April 1942. The Union
protested the respondent's action in thus suspending the provisions of
the contract; and on January 22, 1942, after conferences between repre-
sentatives of the Union and the respondent, Laddon s informed the
department heads that the practice of granting interim increases was
to be resumed. The Union declared itself satisfied with this action.
During January, February, and March 1942, however, the respond=
,ent put a number of increases into effect in the purchasing department
without consulting the union committeeman of the department as,
8 About January 1, 1942, Laddon became vice president and, general manager of the
respondent.
CONSOLIDATED AIRCRAFT CORPORATION 699
required -by the contract' The Union protested to Herinali R. Wise-
man, then the respondent 's labor relations director . Wiseman prom-
ised. to instruct the foreman of the department to consult, the union
committeeman before -actually granting - such ' increases . " Shortly
thereafter the respondent , again without consulting the union com-
mitteeman of the department concerned , granted some 375 interim
increases in the inspection department . The Union again protested.
The respondent 's management admitted that the increases had:been
improperly promulgated and offered to withdraw them and renegoti-
ate them with the Union , but the Union did not insist.on this action.
On April 11, 1942, C. T. Leigh, the respondent 's vice president and
assistant general manager, gave detailed instructions to the respond-
ent's department heads respecting future interim changes in wages.
His instructions have since been followed; and Roy M . Brown, the
Union's Grand Lodge representative , stated at the hearing that, the
parties had reached "a satisfactory solution to handle all of those
particular cases and also cases in the future , but only after the damage
had been done- ....
b. The petitions and the notice of December 13, 1941
On the night of December 10, 1941, San Diego had a blackout necessi-
tating the cessation of work in the respondent's plant. The night-
shift lost much working time in consequence. On December 11 peti-
tions, the source of which is not disclosed in the record, were circu-
lated among the employees. Those signing them volunteered their
time to paint, the plant "during daylight hours" so that operations
might continue during future blackouts. On Saturday, December 13,
the respondent, without consulting the Union,' circulated petitions
among the employees reading, "In view of the present war situation
we, the undersigned, offer to work this Sunday at time and a-half." 3
On the same day, without'consulting the Union, the respondent posted
the following notice, signed by Works-Manager Laddon : .
NOTICE TO ALL EMPLOYEES
In line with President Roosevelt's desire for a 7-day week, those
employees who volunteered,to work Sunday without pay may do
so. Those men are not to ring their time cards . Other employees
who signify in writing that they desire to work .Sunday at time
* The contract provides that "in accordance with past practice , the Company will approve
,interim individual increases when justified , after consulting the foreman and the union com-
mitteeman of the department concerned."
5 We find, as did the Trial Examiner , that the plant was then operating 6 days a week,
'and'that it continued to do so throughout the remainder of"the period under consideration
herein . The contract provided. that "work on the seventh consecutive day shall -be paid
for at double time "
700 DECISIONS •0F NATIONAL LABOR RELATIONS BOARD
and one-half will ring their time cards and be paid accordingly.
The above applies to certain jobs in Jigs and Fixtures, Tool Room,
Machine Shop, Fuselage, Paint Shop, Sheet Metal, Welding, and
blackout painting. No other departments will work.
Upon being informed of these actions by the respondent, the Union,
after unsuccessfully protesting them to Laddon and R. H. Fleet, then
president of the respondent, and after a special meeting, permitted
.its members who desired to work on Sunday, December 14, to do so, on
condition that they "punch their time clocks." It is conceded by the
Union that subsequently, after conferences between representatives of
the respondent and the Union, those who worked on December 14
received double time pay in accordance with the terms of the contract.
c. The crane operators
During February 1942, committees representing the Union and the
respondent met and discussed the pay of crane operators. The Union
contended that these employees should be paid 93 cents per hour, basing
its contention,on,the fact<.that a.{75-centrhour-ly,^rate,-established in a
wage review in April or May 1941, has been followed by general in-
creases of 5 cents and 13 cents an hour in May and October, respectively.
The 93-cent rate was not being paid to newly hired crane operators or
those transferred .to the "parts plant," and the respondent took the
position that it would not agree on any "base rate of pay" for these
operators. In the course of the negotiations L. A. Perry, the union
representative, on February 21, 1942, wrote Wiseman asking that the
respondent immediately name two arbitrators to consider the matter.
No reply was received by the Union, and in reply to Perry's telephoned
inquiry of February 24, Wiseman informed him "that the. Company
had nothing to arbitrate" and that "they considered that the matter was
entirely irrelevant and that they were not going to consider Sit." The
matter was subsequently settled, without''arbiti ati on; 'through consid- '
oration of the pay rates of the individual crane operators by the wage
review board.
d. The employees hired outside California
During January and February 1942, the respondent hired a number
of employees outside California at wages and for positions mutually
agreed upon by the respondent and the employees in question. After
their arrival at the plant, the respondent, without notice to the Union,
^decreased::the .swages.or.Echanged,-the• positions of some 21 or. 22.such
employees. The Union, in presenting grievances on their behalf to
'Wiseman, took the position that the, respondent should have consulted
the Union as the representative of the affected employees before chang-
ing their jobs or pay. Wiseman refused to act upon the grievances,
CONSOLIDATED AIRCRAFT CORPORATION 701
stating that the employees had misrepresented their capabilities and
that, the respondent was paying them what they were worth. After
meetings between representatives of the parties, assisted by a conciliator
from the Conciliation Service of the United States Department of
Labor, the respondent agreed to make retroactive payments to many
of the employees involved and to furnish the cost of transportation to
their homes to others. On April 21,1942, the Union wrote the respond-
ent that the employees affected had approved the proposed settlement.
The payments were thereafter made and the matter was amicably
disposed of.
e. The third 'shift "" '
During the first part of March 1942, after conferences with the
Union, the respondent ;nstituted a third shift, to begin work at mid-
night. It was agreed that employees on this shift would receive the
8-cent differential paid for night work under the contract, and' in.
addition, would receive 8 hours' pay for 61/2 hours' work. No mention
was made, during the negotiations, of the days of the week on which
this shift would work.
On March 9, 1942, the ,respondent;- without notice to the Union,
issued an order establishing the" working hours of the three shifts.
Under this schedule, to become effective March 14, the third shift was
to begin its workweek at midnight on Monday. Since the respondent
was then operating on a 6-day week, the effect of the order was to
cause this shift to work from midnight Saturday to 7 a. m. Sunday.
On March 12, the Union wrote Wiseman that, under the terms of the
contract, the Union expected any Sunday work of the third shift
to be paid for at double times On March 14, Wiseman replied that
the respondent was "unable to read this interpretation into the agree-
ment," and that employees on the third shift would receive the same
weekly pay for 39 -hours as employees on the second shift for 48
hours. Despite the Union's continuing protests, the respondent has
maintained this position.
• r
f. The job classifications -
Early in 1942, the respondent unilaterally adopted a schedule of
job classifications covering the employees represented by the Union.
During February the Union protested that,job classifications were
properly a subject for collective bargaining.,' The respondent, by
9 The pertinent sections of the contract are as follows :
4. Hours: The work week shall consist of forty hours of five consecutive days from
Monday thru Friday ' . .
5. Overtnne-Pay: Work after eight hours on any._shift shall he considered-overtime,
payable at time and one-half. After three hours overtime on any one day and eight
hour§''overtime on*Satnrday (payableiatztime and one=half,)+double time shall be paid.
With the exception of custodial employees, work on the seventh consecutive day shall
be paid for at double time.
702 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wiseman, told the Union .that it would not negotiate with the • Union
respecting -classifications at that time. On March 25 the Union
wrote the respondent, requesting that bargaining conferences be held'
respecting classifications and rates of pay. The respondent did not
reply. On May 1 the Union in writing repeated the request. At the
time of the hearing, the Union had received no reply from the re-
spondent, nor had the respondent complied with the Union's requests
for a copy, of the respondent's job classification schedule. The re-
spondent contends, however, that the job classification schedule was
merely for its own guidance in employing new employees and stabiliz-
ing classifications in its plants, that the Union's request for bargaining
with respect to classifications and rates was inconsistent with the
contract provision for indivdual wage reviews, 'and- that any
grievance with reference to all individual employee could have been
taken to arbitration under the contract. It further contends that
the fact that the entire matter of- wage stabilizaion, including job
classification and wage rates, is now under consideration by the Gov-
ernment, makes it'imp'ossible for the respondent to bargain with the
Union regarding it.
3. The discharges
a. Arthur J. Fisher'
Fisher began work for the respondent in December 1939 as a punch-
press operator at 75 cents an hour. He joined the Union early in 1940
and was active in organizing his department. At the hearing he
testified without contradiction and we find, as did the Trial Examiner,
that shortly after his.initiation into the Union, his foreman, Henry J.
Liegal, told him that he might become a leadman if it were not for
his union activities. In June 1940 he was transferred to a, different
job in the same department at an increase in pay; but on July 26,
1940, shortly after he had opposed a change which the respondent had
requested in regard to overtime pay, Liegal discharged him as
incompetent. I
On August 14, 1940, after action by the Union, Fisher was rehired
by the respondent, and 'started work in the wing department. On
January 1, 1941, he became union committeeman of that department.
During January, according to his testimony, his foreman, Stephen J.
Powell, told him that, if he gave up his union activities; Powell would
arrange to have him advanced to a better position.? When the parts
plant was opened about June 1941, Fisher was transferred to it, and
he there became chairlnan of the union committeemen, a position which
•• "Although Powell denied having made this remark, the Trial Examiner found him an
unimpressive witness who gave contradictory testimony on many issues We find, as did
the Trial' Examiner; that Powell made the ' femark ' attribirted to 'him by Fisher.
CONSOLIDATED. AIRCRAFT CORPORATION' 703
he retained until he was discharged on January 1, 1942, allegedly for
disobeying the rules of the respondent by leaving his department with-
out permission. He was then earning $1.06 an hour.
There is contradictory testimony in the record as to the respondent's
rules in requiring permission for an employee to leave his department
and as-to the application of such rules to Fisher as union commit-
teemen's chairman.' It is clear, however, that on July 23, 1941, Plant
Manager George J. Newman issued a notice in the parts plant to the
effect that, with certain exceptions not material to this case, "no one
is permitted to leave their department without' the permission of the
foreman in charge" and that unauthorized departure would be cause
for dismissal; and that he issued a second notice on August 26, 1941,
that "Bright red buttons are being issued to the foremen, who will
see each man leaving the department is supplied with one." Despite
these notices, Fisher, according to hls testimony, was permitted to
follow the arrangement he had had with Foreman Powell O in the
wing department that he could leave on union business if he merely
notified Powell or, in his absence, one of his clerks. However, the
record shows that thereafter, during the autumn of 1941, Lawrence K
Mineah, Fisher's •foreman, objected to Fisher's leaving the department
without his permission, although Fisher had notified Mineah's clerk,
and told him to stay on the job in the future.
On December 13, 1941, Fisher admittedly left his department with-
out permission a few minutes before quitting time in order to protest
against the respondent's notice regarding Sunday work. On this
occasion Newman, according to Fisher, said, to him, "What the hell
are you? A slant eyed Jap lover, a Hitlerite or a God damned Com-
munist," and warned him, "Fisher, you know you are treading on thin
ice . . . The first of the year you are all done." '0
On the morning of January 1, 1942, Fisher again left his depart-
ment on union business, this time after obtaining a "rover's button" '
by telling one of Mineah's clerks that he had the permission of his
supervisor, Elmer Gahlbeck, to leave. On his way through the
plant he met Newman and two of his assistants. Newman asked'
to see Fisher's button, which the latter produced, explaining that he
was on union business. Nevertheless, Newman sent him back to
his job; and, after'obtaining denials from Mineah and Gahlbeck that
they had authorized Fisher's departure, Newman told Mineah to
discharge Fisher for disobeying company rules. This was done, and
Fisher left the plant.
8In view of the reasons ' for our decision .. set forth below„ It is - unnecessary to discuss in
detail or to resolve the conflicts in testimony on this point
0 When the parts plant opened , Powell became assistant factory manager under Newman,
10 Although Newman denied, in part, the statements attributed to him by Fisher, on the
basis of the record as a whole we find, as did the Trial Examiner , that Newman made them'
substantially as testified to by Fisher.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After Fisher's discharge, representatives of the Union in confer-
ences with representatives of the respondent unsuccessfully sought to
obtain his reinstatement. Newman stated, however, that he would
not reemploy Fisher under any conditions. On March 19, 1942, L. A.
Perry, union representative, personally delivered a letter to Wiseman
asking whether the Union was correct in believing that the respond-
ent would not further consider Fisher's case. Wiseman refused
to accept it, stating that he considered the letter "a legal trick." No
attempt was made by the Union to have the matter referred to
arbitration.
b. Oliver H. Williamson
Williamson worked for the respondent as a jig builder from June
29, 1940, to April 18, 1941, when he resigned. He returned to work
during September 1941, and worked on the night shift in the parts.
plant until April 14, 1942, when he was discharged, allegedly for
having caused a disturbance at his place of work.
, Williamson joined the Union in September 1940, and became night
shift committeeman of his department on March 1, 1942. In that
capacity, on April 14, 1942, he protested against the respondent's
action in sending a policeman to escort Walter Brown, an employee
in his department, out of the plant,, a procedure which indicated that
Brown had been discharged, whereas actually he had resigned. On
this occasion, while trying to find Foreman Milton C. Hangen,
Williamson was told by Hangen's assistant, James H. Eastin, to stop
his activities and go back to work. Williamson nevertheless continued
to talk in a loud voice about the way the plant was being operated to
a' group of 8 to 12 employees who gathered at the scene. While he
was doing so, Henry J. Liegal, the superintendent of the night shift
in the parts plant, said to him : "You are one of these damned Union
agitators-You better be careful or you will know what I am going
to do to you." 11 Liegal and Williamson then started toward Liegal's
office to'continue their conversation, but on the way met Hangen, to
whom Williamson repeated his strictures against the respondent.
Hangen, on Liegal's instructions, thereupon. discharged Williamson;
and-the notation, "Discharged-Agitator," was entered on William-
son's service record. .
Thereafter, a committee of the Union met with representatives of
the respondent regarding the matter and, as a result of their con-
ferences, Williamson was reemployed on the day shift on May 1,
1942, without loss of seniority, and his employment record was
changed to read, "Disciplinary Layoff-2 Wks. Without pay."' On
n Although Liegal denied, making.these remarks, the Trial Examiner credited Williamson's
testimony . We find , as did the Trial Examiner, that the events took place as related by
Williamson: ``-
r
4
CONSOLIDATED AIRCRAFT CORPORATION 705
April 30, 1942, the Union wrote the Regional Director of the Board
that the charge previously. filed by the Union against the respondent
respecting Williamson?s discharge had "been -settled to the satisfac-
tion" of the Union.
4. Conclusions as to the, alleged refusal to bargain and the alleged
discriminatory discharges
The respondent's'alleged refusal to bargain consists of its' conduct
in connection with the interim individual wage increases; the'peti-
tions and notice 'of' December 13, 1941, the crane operators, the
employees hired outside California, the third shift, and the-job classi-
fication schedule 12 In each of these instances, the respondent took
unilateral action in a matter involving the interpretation, and ad-
ministration of its collective contract with the Union. As we point
out in Section III B, below, it was improper for the respondent to
take its action in these matters without prior notice to or consulta-
tion with the Union. We are not, however, convinced that this
series of unilateral decisions by the respondent was part of a con-
scious campaign on its part to undermine the authority and prestige
of the Union as the collective bargaining representative of the re-
spondent's employees or to evade the respondent's obligation to recog-
nize and deal with the Union as such representative.- This, we think,
is demonstrated by the respondent's willingness to bargain with the
Union as to these matters after the Union had objected to the action
taken by the respondent and also by the fact that all but two of
the issues thus raised were in fact amicably settled as a result of this
collective bargaining between the parties after the event. The two
issues not thus amicably disposed of were the operation of the third
shift and the job classification schedule adopted by the respondent.
With respect to these unsettled issues, however, the Union made no
.attempt to utilize the grievance and arbitration machinery estab-
lished by its collective contract with the respondent: That 'contract
established a procedure for the handling of grievances and 'further
provided that any dispute between the parties as to the terms, con-
ditions, or rates established in the agreement could, if not amicably
settled, be taken to arbitration. ,Tlie Union has failed to utilize
this contractual machinery for the settlement of the disputes which
have given rise to the present proceeding, but instead has filed the
charges upon which the complaint herein is based. In effect, there-
fore, we are being asked to intervene in the interpretation -and ad- I
12 At the hearing, counsel for the Board contended that the respondent refused to bargain
with the , Union in, regard to Fisher and also in regard to A. •B.. Mergen, an employee who
was discharged in December 1941, but whose discharge is not alleged to have been discrim-
inatory. The Trial Examiner found no. refusal to bargain in either case. The Union has
not excepted to his finding ,- a agree
513024-43-vol 47--45
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ministration of a collective contract , and to pass on disputes as to
the meaning of a contract by considering and determining whether
any unfair labor practices have taken place within the meaning of
the Act.
We have held before that the execution of a collective contract
does not end the process of collective bargaining , and that the inter-
pretation and administration of a contract already made and the
settlement of disputes arising under any such contract are properly
regarded as within the sphere of collective bargaining ." , Clearly,
therefore , a refusal by an employer to bargain collectively within
that area might constitute an unfair labor practice within the mean-
ing of the Act; and the existence of a collective contract between
the parties involved does not preclude the Board from finding that
unfair labor practices have taken place and issuing an appropriate
order 14 We are of the opinion , however, that it will not effectuate
the statutory policy of "encouraging the practice and procedure of
collective bargaining" for the Board to assume the role of policing
collective contracts between employers and labor organizations by
attempting to decide whether disputes as to the meaning and ad-
ministration of such contracts constitute unfair labor practices under
the Act. On the contrary , we believe that p,irtie .s to collective con-
tracts would thereby be encouraged to abandon their efforts to dis-
pose of disputes under the contracts through collective bargaining
or through the settlement procedures mutually agreed upon by them,
and to remit the interpretation and administration of their contracts
to the Board. We therefore do not deem it wise to exercise our
jurisdiction in such a case , where the parties have not , exhausted
their rights and remedies under the contract as to which the dispute
has arisen . IInd" the circtunstances, we shall the complaint.
herein without preju(iic ii :iie.ges that the i npundent
refused to ba- um ^t ^^ctwey' _' The t?niuii, v''rthiu the uleaniilg
of 6e' , I iuEi c, 1,0 ) of the rk`i {Wig - (Fo _cot iiow pass on the question
of whether the respondent 's conduct would a der other circumstances
constitute unfair labor practices.
Both at the hearing herein and in the course of oral argu ment before
the Board , the parties admitted that the discharge of Fisher (and,
by inference , that of Williamson as well ) could have been taken to
"Matter of North American A,'iation, Inc. and United .1u.toviobile , Aircraft and Agri-
cultural Implement Worker' of America, Local 887, C. T. 0., 44 N. L. R. B. 647.
14'_x'. L. R. B. v. Newark Morn) I Ledger Company, 120 F. ( 2d) 266, modifying and en-
forcing Matter of .Cewark Alorning Ledger Company and Ainerican Newspaper Guild, 21
N. L. R. B. 988, cert. denied 314 U. S. 693. See also Section 10 (a) of the Act, which
provides : "The Board is empowered, as hereinafter provided, to prevent any person from
engaging in any unfair labor practice . . . affecting commerce . This power shall be ex-
clusive, and shall not be affected by any other means of adjustment or prevention that has
been:or may be established by agreement, code, law, or otherwise."
'CONSOLIDATED AIRCRAFT CORPORATION - 707
arbitration under the contract." For the reasons stated, above, we
shall-therefore also dismiss ,the complaint without prejudice, :in§ofar
as it alleges that the respondent discriminated in regard-to the hire
and tenure of employment of Arthur J. Fisher and' Oliver H. Wil-
liamson, within the meaning of Section 8 (3) of the Act.
B. Interference, restraint, and coercion
On April 28 and 29, 1942, Timekeeper Albert L. Condon, acting as
temporary union committeeman, interviewed William M. Shanahan,
the respondent's treiisui•er, with respect to a request by employee L.D.
Hardman for an increase in pay based upon his length of service in
Shanahan's department. Hardman was to be transferred to the
-'materials department and desired action to be taken on his pay raise
before the transfer took effect, since he would lose his seniority by it.
Shanahan had previously told Hardman that his semi-annual wage
review would have to wait until he had completed his required length
of service and that the department in which it was conducted would
depend oil' where Hardman was employed at that time. Shanahan
informed Condon that, since the latter was himself leaving the next
(lay, the matter should be taken up by his successor. Condon testified
without contradiction and we find, as did the Trial Examiner, that
Shanahan then warned him that, if a grievance were filed in respect
to Hardman, the latter's transfer would be canceled with the result
that he would be "terminated", and that anyone who tried to do
anything about the Hardman case would get-into trouble.
Everett M. Shannon, union conlnutteeman for,; the timekeepers,
incurred the displeasure of Shanahan by delnandmng what the latter
considered to be excessively large increases in pay for union time-
keepers during the 1942 spring and summer wage reviews, thereby
causing the majority of such cases on the lists from April to August,
inclusive, to be taken to the general wage committee. Shannon testified
that Shanahan at various times during this period demanded that
he approve recommendations for increases without consulting the
employees involved, urged him to drop his union job, and warned him
to stay out of certain departments where his union work normally
took him. Shanahan admitted telling Shannon that he was dis-
pleased with the latter's activities in connection with the wage
review procedure and that he could not deal with Shannon, but
denied making any, anti-union statements. Under all- the circum-
stances revealed by the record, and on the basis of his observation of
15 with respect to Williamson, the record shows in addition ' that `t'ie question of his
discharge wN as settled to the mutual satisfaction of the parties through'collective bargaining,
and we see no reason under the present circumstances for inter feting with this settlement
708 DECISIONS -'OF NATIONAL LABOR RELATIONS BOARD
the witnesses,,,the Trial Examinertcredited Shannon's testimony. We
fifid" as .did. the ,Trial Examiner, that' Shanahan made the statements
attributed to him by'Shannon:: - • • -
- - Oh February 9, 1942; employee -H. M. Prior wrote the Union that he
had been promoted to. assistant foreman aild requested, a withdrawal
card. Don D. Wilkerson, union representative,-told Prior that under
the union constitution such a card'could be issued only upon his becom-
ing a general, foreman, but that he could drop his membership if he so
desired. ' On.February 20, Labor Relations Director Wiseman wrote
Wilkerson that he knew of Prior's letter and that, since Prior was not
within the classification' covered by the contract, "it will be appreciated
if you immediately act upon'his request.",
On May 20, -1942, C. W. Perelle, the respondent's vice president in
charge of production, sent' a confidential memorandum to William
Renis'on, a supervisor, attaching a list of salaried employees who
were "a part of [his] supervision" and who were "still paying dues
to the Union," and stating that "obviously this is contrary to our
policy." Perelle told Renison to discuss the matter with the em-
ployees affected, and stated : "If the individual does not desire to dis-
continue his affiliation with the Union, he certainly cannot be per-
mitted to retain his present position, but must be transferred back to
a job commensurate with his ability and attitude 'concerning member-
ship in the Union.,,ie
On June 2, 1942, the Union, by K. G. Phillips, representative, filed
a grievance protesting the respondent's taking certain "hourly ,paid
supervisors who came under the jurisdiction of 'the Union and placing
them on the administrative pay roll (a salaried rate of pay)" 17' as
contrary to the contract; protesting the action of Foreman Edward
Stuart of the purchasing department in requesting such employees to
write letters to the Union asking that they be removed from its rolls;
and requesting the return of such transferred employees tc hourly rates.
About a week later, Phillips met with Thomas E. Vance, supervisor in
the respondent's labor relations division. Vance told Phillips that the
action of Stuart had been taken pursuant to Perelle's memorandum,
which represented the respondent's policy. The record is silent as to
whether and how the grievance was settled:
We find, as did the Trial Examiner, that by Shan* ahan's statements
to 'Condon in connection with the latter's presentation of the Hard-
ilian raise tndhhis statements to Shannon regarding the latter's activi-
16 There is no showing that the respondent n as attempting to preserve a neutral attitude
in union affairs by insisting merely that supervisory employees not engage in union activi-
ties which might be regarded as interfering with the rights of non-supervisory employees.
17 Phillips testified, and we find, as did the Trial Examiner, that such transfers were
made without change in the job status of those involved.
CONSOLIDATED AIRCRAFT CORPORATION 709
ties as union committeeman; 18 by the activities of Wiseman and
Perelle, highlighted by the latter's instructions that salaried employ-
ees who did not withdraw from the Union be transferred back to
positions in keeping with their "attitude" toward union membership;
and by the statements made by Liegal, Powell, and Newman to
Fisher,19 the respondent interfered with, restrained, and coerced its
employees in the exercise of their rights under the Act.
Moreover, we find that the respondent's conduct in connection with
the interim individual wage increases, the petitions and notice of
December 13, 1941, the crane operators, the employees hired outside
California, the third shift, and the job classifications, although not a
refusal to bargain collectively with the Union, constituted interfer-
ence with the rights of its employees under the Act. As the duly
designated and recognized bargaining agent of the employees, the
Union was entitled to be notified of and consulted with respect to
contemplated action by the respondent changing employees' terms and
conditions of employment and affecting the contract between the
respondent and the Union. Nevertheless, the respondent, whatever
may have been its intent, repeatedly took such action without notice to
or consultation with the Union, thereby impairing its status and
effectiveness as the bargaining agent of the employees.
We find that the respondent, by its unilateral action in regard to
matters within the scope of its contract with the Union, by the
statements of Superintendent Liegal to Williamson, by the state-
lnents of Foremen Liegal and Powell and Plant Manager Newman
to Fisher, by the statements of Treasurer Shanahan to 'Condon and
Shannon, and by the acts and statements of Labor Relations Director
Wiseman and Vice-President Perelle in requiring employees to give
up their membership in the Union when they were promoted, has
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 de-
scribed in Section I, above, have a close, intimate, and substantial re-
lation 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.
18 At the hearing counsel for the .Board also contended that the respondent interfered
with the union activities of Joseph J. Blake, chairman of the union committeemen in the
home plant during the last half of 1941, and of Edward Barnes, also a union committee-
man. The Trial Examiner found that the record does not support these contentions. The
Union has not excepted to his findings , and we agree.
19 See Section III A 3 ( a), supra.
710 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY -
'Haying found that the, respondent has engaged in and• is ,engaging
in ,certain unfair labor practices, vet shall order it,to cease-and, desist
therefrom and to take certain affirmative action designed to'effectu-
ate the ,policies of the Act.,
Upon the basis of, the-above findings of, fact and upon the entire
record in the case, the Board makes the following : • -
CONcr.usloNS or L.kw
-1: InternationailF:Ass'ociation of Machinists, Aircraft Lodge No.
1125, A. F. L.; is a labor organization, within the meaning of Section
2- (5) of the Act. '
` ' 2. By' interfering with, restraining, and coercing its employees in
the exercise of 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.
3. The aforesaid unfair, labor practices are unfair labor practices
affecting commerce, within the meaningof'Section (6) and (7) -of
the Act.
4. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (3) of'the Act, as alleged in'the complaint
herein.
5. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (5) of -the Act, as alleged in the complaint
herein.
ORDER
Upon•the.basis of the above"findings'of fact and-conclusioris` ofrh w,
and pursuant to Section 16-(c) of the National Labor -Relations Act,
'the National Labor Relations Board-hereby-orders that the respondent,
Consolidated Aircraft Corporation, San Diego, California, and its
officers, agents, successors , and assigns, shall: I •
1. Cease and desist from in any manner interfering with , restrain-
ing, or coercing 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 purposes of collective bargaining
or' other rht tJu fM, I'd or pi otectio''n 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) Post immediately in conspicuous places throughout its Sari
;Diego; California, plant, and- maintain for a period of at least sixty'
(60) consecutive days from the date of posting , notices to its em-
CONSOLIDATED AIRCRAFT CORPORATION 711
ployees stating that the respondent will not engage in the conduct
from which it is ordered to cease and desist in paragraph 1 of this
Order;
(b) Notify the Regional Director for the Twenty-first Region in
writing,. within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
AND IT Is HEREBY FURTHER ORDERED that the complaint be, and it
hereby is, dismissed without prejudice, insofar as it alleges that the
respondent engaged in unfair labor practices, within the meaning of
Section 8 (3) and (5) of the Act.
MR. GERAIm D. RBILLY took no part in the consideration of the above
Decision and Order.