Davis Precision Machine Co.

National Labor Relations Board - Board Decisions

Oct 29, 1945

64 N.L.R.B. 529 (N.L.R.B. 1945)

In the Matter Of PHILIP VANDERNOOT AND PEARL VANDERNOOT, D/B/A
DAVIS PRECISION MACHINE COMP ANY and INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, LOCAL 683, C. I. O.
Case No. 21-C-2435.-Decided October 29 , 19.4.5
DECISION
AND
ORDER
On April 20, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report annexed hereto. No exceptions were filed to the Intermediate
Report, but the respondent requested a hearing for the purpose of oral
argument before the Board at Washington, D. C. A hearing for that
purpose was scheduled for September 20, 1945; however, none of the
parties appeared and oral argument was not held.
The Board has considered the rulings of the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Exam-
iner, except as hereinafter modified.
The Remedy
Having found that the respondents have violated Sections 8 (1)
and (3) of the Act, we must order the respondents, pursuant to the
mandate of Section 10 (c), to cease and desist therefrom. We also
predicate our cease and desist order upon the following findings : The
respondents' whole course of conduct discloses a purpose to defeat
self-organization and its object among their employees. As we have
found, the respondents interfered with, restrained, and coerced their
employees by various acts and statements. The culmination of their
illegal activities, the discharge of Monarch and Dionigi "goes to the
64 N L R B, No. 91.
529
070417-46-vol 64-35
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
very heart of the Act." 1 Because of the respondents' unlawful con-
duct and their underlying purpose, we are convinced that the unfair
labor practices found are persuasively related to the other unfair labor
practices proscribed and that danger of their commission in the future
is to be anticipated from the respondents' conduct in the past.2 The'
preventive purpose of the Act will be thwarted unless our order is co-
extensive with the threat. In order therefore, to make effective the
interdependent guarantees of Section 7, to prevent a recurrence of
unfair labor practices, and thereby minimize industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of
the Act, we shall order the respondents to cease and desist from in any
manner infringing upon the rights guaranteed in Section 7 of the
Act. As recommended in the Intermediate Report, we shall also
order,the respondents to take certain affirmative action designed to
effectuate the policies of the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the • National Labor Relations
Board hereby orders that the respondents, Philip Vandernoot and
Pearl Vandernoot, d/b/a as Davis Precision Machine Company, Los
Angeles, California, their agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America,
Local 683, C. I. 0., or in any other labor organization of its employees,
by discharging or refusing to reinstate any of their employees, or by
discriminating in any other manner in regard to their hire or tenure
of employment or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America,
Local 683, C. I. 0., or any other labor organization, to bargain collec-
tively 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 :
IN. L R B. v . Entwistle Manufactur,nq Company , 120 F ( 2d) 532 , 536 (C C A 4) ;
see also, N . L. B B v Automotive Maintenance Machinery Company , 116 F ( 2d) 350, 353,
(C. C. A. 7), where the Circuit Court of Appeals for the Seventh Circuit observed: "No
more effective form of intimidation nor one more violative of the N L R Act can be con-
ceived than discharge of an employee because he joined a union. . . "
2 See N. L R . B. v. Express Publishing Company, 312 U. S. 426
DAVIS PRECISION MACHINE COMPANY 531
(ii) Offer to Irving Monarch and Joseph Dionigi immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and privi-
leges;
(b) Make whole Irving Monarch and Joseph Dionigi for any loss
of pay that they may have suffered by reason of the respondents' dis-
crimination against them, by payment to each of them a sum of money
equal to the amount which he normally would have earned as wages
during the period from the date of his discharge to the date of the
respondents' offer of reinstatement, less his net earnings during said
period ;
(c) Post at their plant at Los Angeles, California, copies of the
notice attached to the Intermediate Report herein, marked "Appendix
A.1'3 Copies of said notice, to be furnished by the Regional Director of
the Twenty-first Region shall, after being duly signed by the respond-
ents' representative, be posted by the respondents immediately upon
receipt thereof, and maintained by them for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the respondents to insure that said notices are not altered,
defaced, or covered by any other material;
(d) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the respondents have taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Gem qe H O'Brien. L'sq, for the Hoard
Pearlson & Sanger, by Aibei t Peal lson, Esq, of Los Angeles, Calif., for the
respondents.
Ross P. Alt hop, Esq., of Los Angeles, Calif., for the Union
STATEMENT OF THE CASE
Upon an amended charge duly filed on Januaiy 11, 1945, by International
Union, United Automobile, Aircraft & Agricultural Implement Workers of
America, Local 683, affiliated with the Congress of Industrial Organizations,
herein called the Union, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Twenty-first Region (Los Angeles, Cali-
fornia), issued its complaint dated January 11, 1945, against Philip Vandernoot1
and Pearl Vandernoot, doing business as Davis Piecision Machine Company,
herein called the respondents, alleging that the respondents had engaged in and
3 Said notice , however , shall be, and it hereby is, amended by striking from the fist
paragraph thereof the words "Recommendation of a Trial Examiner " and substituting in
lieu thereof the words "A Decision and Order."
1 Vandernoot is variously refei red to as Vandernoot and as Davis in the record.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were engaging in unfair labor practices within the meaning of Section 8' (1)
and (3 ) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act.
Copies of the complaint and notice of hearing were duly served upon the
respondents and the Union With respect to unfair labor practices the com-
plaint alleged in substance : ( 1) that since on or about May 5, 1944, the respond-
ents advised their employees to remove their union buttons and warned them
that they would receive no benefits from the Union ; ( 2) that on or about August
18, 1944, the respondents discharged and refused to reinstate Irving Monarch
and Joseph Dionigi because of their union membership and activities ; and (3)
thereby interfered with, restrained and coerced their employees in the exercise
of the rights guaranteed in Section 7 of the Act.
On January 16, 1944 , the respondents filed an answer denying the alleged
unfair labor practices.
Pursuant to notice , a hearing was held from January 30 to February 1, 1945,
inclusive , at Los Angeles, California , before the undersigned , the Trial Examiner
duly designated by the Chief Trial Examiner . The Board, the respondents, and
the Union were represented by counsel . All parties participated in the hearing
and were afforded full opportunity to be heard, to examine and cross-examine
witnesses , and to introduce evidence bearing upon the issues . At the close of
the Board 's case, and again at the close of the hearing , the respondents moved
to dismiss the complaint . The motions were denied by the undersigned . At the.
close of the hearing , the attorney for the Board moved to conform the complaint
to the proof with respect to such matters as dates, names , and typographical
errors; the respondents made a similar motion with respect to the answer.
Both motions were granted without objection . All parties argued orally on the
record . The parties were afforded an opportunity to file briefs with the under-
signed. A brief has been received from the attorney for the respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINOs OF FACT
I THE BUSINESS OF THE RESPONDENTS
Philip Vandernoot and Pearl Vandernoot, doing business as Davis Precision
Machine Company, have their principal place of business in Los Angeles, Cali-
fornia. They are engaged in the manufacture and sale of precision gauges and
aircraft parts for the United States Army and Navy Air Forces through vari-
ous aircraft manufacturing companies. The respondents, during the 12 months
immediately prior to the hearing, purchased raw materials consisting prin-
cipally of steel to the value of $25,000. The greater part of such raw materials
originated from sources outside the State of California. During the same period
the respondents sold their manufactured products to the value of $100,000, to
Consolidated Vultee Aircraft Corporation, Northrop Aircraft, Inc, Douglas Air-
craft, Inc and California Institute of Technology The products sold and
delivered by the respondents to these organizations are products essential to
their operations. The respondents concede the jurisdiction of the Board.
IT. THE ORGANIZATION INVOLVED
International Union, United Automobile , Aircraft & Agricultural Implement
Workers of America, Local 683, C. I 0, is a labor organization admitting to
membership employees of the respondents
DAVIS PRECISION MACHINE COMPANY 533
III THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion 2
On May 5, 1944, the respondents received a letter from the Union, the con-
tents of which are not disclosed by the record. The Union had previously organ-
ized the respondents' employees, but this organizing activity was unknown to
the respondents. The same day, at about 9: 30 a. in., David Zietz, the respondents'
superintendent, approached Oscar Wolfberg, one of the respondents' employees,
at his work, and asked him what he knew of the Union and who had brought
the authorization cards into the shop. Zietz also asked Wolfberg how he "stood"
on the Union. Wolfberg replied that he favored the Union, Zietz then left
with the remark, "Well, I don't think you can get away with the Union in this
shop because I was a shop steward at one time and the only thing we got out
of it was a vacation We got a lot of promises and had a vacation." A few
minutes later Philip Vandernoot called Wolfberg into the office and asked him
what he knew of the Union; who had brought in the cards, and how he "stood "
Wolfberg told Vandernoot that he favored the Union, whereupon Vandernoot
said to him, "You know where that puts you."
On or about May 15, Zietz entered into a conversation with Emerson Thompson,
one of the respondents' employees, in which he asked Thompson how he felt about
the Union and then told Thompson that he (Zietz) had once belonged to a union
and derived no benefits therefrom.
On May 17, the Board's Regional office conducted a consent election for the
purpose of determining a bargaining representative among the respondents'
employees. On the morning of the election some of the employees appeared at
their work wearing union buttons. This was the first occasion that the Union's
insignia had been worn by any of them in the plant. At about 9: 30 a. in., before
the poll was taken, Vandernoot spoke to Irving Monarch, at that time employed
by the respondents, while he was at his machine, and, pointing at the union
button Monarch was wearing, ordered him to "take off this damn button."
The poll was conducted on a lot adjoining the respondents' premises. At about
4: 30 p. in. Vandernoot appeared at the polling place and ordered Monarch, who was
acting as a watcher for the Union, to leave the lot.
The record is clear that all the above related acts occurred prior to and during
a consent election, conducted among the respondents' employees by the Board's
Regional Office for the purpose of determining a bargaining agent. In the election
the Union was chosen by the employees as their representative.3
The undersigned finds that by inquiring into the union membership and sympa-
thies of its employees; disparaging the Union by referring to the Union's alleged
inability to gain advantages for its members ; and by its expression of hostility to
the Union in ordering an employee to remove his union button, and on the entire
record, the respondents have interfered with, resti ained and coerced their em-
ployees in the rights guaranteed in Section 7 of the Act 4
On May 19, the respondents discharged Monarch, Joseph Berger, and Carl
Anderson without previous notice. Monarch and Berger were union officials. The
following morning the respondents' employees struck because of these discharges.
2 The findings in this section of the report are based on uncontradicted or mutually
corroborative testimony, except as otherwise indicated.
s The results of the election were
Votes cast for the Union----------------------------------------------- 21
Votes against the Union------ ------------------------------------------ S
Challenged ballots----------------------------------------------------- 2
4 Swift and Company, 30 N. L R B. 550 , Botany Worsted Mills, 4 N. L. R B 292
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After a conference between the Union, the respondents, and a representative of
the United States Army, the discharged employees were reinstated without loss of
pay and the striking employees returned to work.
On June 2, the respondents laid off seven employees, allegedly for lack of work.
Monarch was included in this lay-off. The following day, after a conference
between the Union and the respondents, five of the employees, including Monarch,
were reinstated, and the respondents agreed that future lay-offs were to be made
according to seniority
On August 10, the Union presented a contract to the respondents and negotia-
tions thereon were held on August 10 and 11. The conferences closed with an
agreement that the respondents would submit counterproposals within 2 or 3 days
These were never submitted, as far as the record shows
B. The discriminatory discharge of Irving Monarch
Irving Monarch was the Union's shop steward and very active in its behalf.
On August 18, 1944, Monarch began work at 7 a. in. and continued working for
about 55 minutes He then "rang out" his time card, left the plant, and (lid not
return until approximately 11 a in. Just prior to his departure Monarch
informed Joseph Dionigi, one of the respondents' set-up men, in charge of the
operation of Monarch's machine, that he was leaving Dionigi told Monarch
to "go ahead." When Monarch left the plant he was observed through the
office window by David Zietz, the respondents' plant superintendent. Zietz asked
Dionigi why Monarch had left, where he was going, and when he expected to
return. Dionigi replied that he did not know Monarch's reason for leaving, his
destination, or when he would return. At about 9 a. m Vandernoot arrived
at the plant. Zietz informed Vandernoot of Monarch's departure; the two
men discussed the incident; and Vandernoot removed Monarch's time card
from the rack, thereby intending to and in fact discharging him Monarch
returned to the plant, discovered that his time card had been removed from
the rack, and immediately informed Dfonigi that he (Monarch) had been dis-
charged ; he then left the plant. At about 12 o'clock the Union's business agent
and its committee conferred with the respondents' oiiicers and were told that
Monarch had been discharged for leaving the plant without permission, and
that the respondents would not reinstate him.'
The record shows that Dionigi was a lead and set-tip man, responsible for
the mechanical operation of certain machinery. He was also responsible to
some extent for the work of certain of the respondents' employees, among
whom was Monarch. Dionigi testified that on previous occasions he had author-
ized employees to leave the plant, upon their requests to him for such per-
mission and that on a previous occasion he had given Monarch permission to
leave
Zietz testified that only he and Vandernoot had authority to grant employees
permission to leave and that at all the times Dionigi had authorized employees
to leave the plant, while it was true that the request had come through Dionigi,
the latter had first informed Zietz that the employee had made the request,
the reason for the request, where the employee was going, and when he would
return. Zietz further testified that on the previous occasion Monarch had
asked permission to leave, Dionigi had first brought the request to Zietz for
approval. Zietz testified that "it was understood [by the set-up men, Dionigi
included] that if any of the employees wanted to leave it was all right with
me. but I wanted to know before they left so I would know where they had
5 Dionigi was also a member of the Union and on the Union's negotiating committee.
DAVIS PRECISION MACHINE COMPANY 535
gone." Zietz testified that the set-up men brought requests for permission
to leave to him and that no employee had ever come directly to him for per-
mission to leave
There was no rule announced to the respondents' employees orally or in
writing telling them who had authority to grant permission to leave the plant.
Zietz testified :
. . it was understood generally, as it would be in any plant, I assume,
a lead man would have no authority to let any one go out of the plant,
unless the information was related to his superior . . ."
Regarding the alleged rule that only Zietz or he could grant respondents'
employees permission to leave the plant, Vandernoot testified:
Q. How would the employees know about this rule?
A How did the employees know about this rule?
Q Yes, was it written. Did you tell them Did Mr Zietz tell them?
A. Why it is a common fact.
Whether or not Dionigi had authority to give employees permission to leave
the plant, the record is clear that the respondents had never informed its em-
ployees who could give them such permission Diomgi's authority may well
have been limited to the conveying of a request for leave to Zietz for final deci-
sion, but the record does not show that the respondents' employees were aware
of any limitation on Dionigi's authority. Requests for permission to leave the
plant were infrequent, and the granting of permission to leave was hardly more
than a formality. As previously stated, Zietz testified ". . if any of the
employees wanted to go it was all right with me, but I wanted to know before
they left so I would know where they had gone." Monarch had previously left
the plant on permission granted, if not by, at least through Dionigi, and he
surely cannot be bound by the respondents' instructions to Dionigi, not known
to Monarch.
In view of Zietz' testimony to the effect that requests to leave the plant were
never made directly to him, and that when such requests were made "it was
all right" provided he knew where the employee was going, it seems highly sig-
nificant to the undersigned that Monarch was discharged without being asked
to explain his action or disclose his reason for leaving No investigation was
made. Monarch was given no opportunity to present any excuse.
In view of the respondents' previous course of conduct toward Monarch ;
Vandernoot's order to him to remove his union button, and to leave the polling
place; Monarch's two previous discharges; and the respondents' express hostility
towards the Union; the undersigned is convinced that Monarch's leaving the
plant was not the reason but merely a convenient excuse for his discharge.
From the entire record in the case, the undersigned finds that the respondents
discharged Irving Monarch on August 18, 1944, because of his membership in
and activities on behalf of the Union, and that by such discharge and its sub-
sequent refusal to reinstate Monarch the respondents have discriminated in
regard to his hire and tenure of employment and discouraged membership in a
labor organization and thereby interfered with, restrained, and coerced their
employees in the exercise of rights guaranteed in Section 7 of the Act.
• C. The discriminatory discharge of Joseph Dionigi
Joseph Dionigi was employed by the respondents in May 1943 , and was dis-
charged August 18, 1944. At the time of his discharge Dionigi was a set-up
man Dionigi was a member of the Union ' s negotiating committee.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As heretofore discussed , Monarch left his work at the respondents' plant on:
August 18, 1945 and when upon his return discovered that his time card had been
removed from the rack he informed Dionigi that he (Monarch) had been dis-
charged. Dionigi spoke to Zietz about Monarch's discharge, telling him, inter
alia, "You had better get that card in the rack or you are looking for trouble."
Shortly after Dionigi's conversation with Zietz, Vandernoot entered the plant.
Dionigi thereupon shut off his machine and went up to Vandernoot and asked
him why he had discharged Monarch. He also told Vandernoot that he was
leaving the plant at noon ° and stated, "I am going down and turn you in to the
F B. I." Dionigi spoke in a very loud voice. Vandernoot did not answer.
Margaret Arbuckle, one of the respondents' employees, and a union member,
testified that at about 11: 30 a. in., on August 18, Dionigi came to her place of
work and informed her and two other employees that Monarch had been dis-
charged and that the respondents' employees were "to walk out" at noon and not
return to work and that later he returned and told them the "walk out" was set
for 1 o'clock.
Charles Christensen, one of the respondents' employees, and a Union member,
testified that on August 18, he was working with Dionigi and that Dionigi said
to him "we are leaving at 1 p in " Dionigi denied making the statements attrib-
uted to him by Arbuckle and Christensen. The undersigned was impressed by
the testimony of both Arbuckle and Christensen ; considers them to be honest and
forthright witnesses, and credits their testimony.
At 12 o'clock the Union's representatives, consisting of Ross P. Althof, the
Union's business agent, Joseph Berger. one of the respondents' employees,
Dionigi, and Monarch called at the respondents' office and conferred with Van-
dernoot and Zietz regarding Monarch's discharge. During this conference,
Dionigi, who was very angry, said to Vandernoot, "God damn you , I am not
through with you yet. I am going to break you' I have taken enough off you "
Althof tried to quiet Dionigi, several times, but did not succeed Vandernoot
made no reply. The conference closed at about 12: 30 p. m.; the respondents
refusing to reinstate Monarch. At about 12: 50 p. in, several employees came
to Zietz and asked for permission to leave, stating that the respondents' em-
ployees were leaving their work at 1 p. in and that those asking for permission
to leave did not wish to be involved Zietz granted permission to leave to all
those who made such requests At 1 o'clock some of the respondents' employees
left their work and the plant. That afternoon, at about 2 o'clock, a second
conference took place between the respondents' officials, Vandernoot and Zietz,
and the Union, represented by Althof and Berger. A representative of the
United States Army was also present. During the course of this conference,
Dionigi entered the room and stated that the employees who had left were out-
side, and that as it was pay day they wanted to know if their checks were ready.
Zietz thereupon handed Dionigi checks, and availability slips indicating discharge
for 10 employees. Monarch and Dionigi were included among the 10. Althof
advised Dionigi not to give the employees the certificates of availability and
Zietz then gave Althof a list of the employees who were being discharged. With
the exception of Monarch who was already discharged, and Dionigi who was in
reality on vacation, they were those employees who had left their work at
Dionigi was scheduled to leave on his vacation at noon on August 18
' Dionigi testified that during the conference above related he did not say to Vandernoot
"I am going to break you" but that he did say "I am going to break you of those bad habits."
He admitted the other statements attributed to him Monarch first testified that he said
to Vandernoot "I will break you of those bad habits" and later changed his testimony to
say that Dionigi made the statement.
DAVIS PRECISION MACHINE COMPANY 537
1 p. in e Zietz testified that these employees were discharged by the respondents
"for holding up the war effort and walking off the job " s
Dionigi testified that lie first learned of his discharge when the pay checks
were handed him for distribution. Vandernoot testified that the respondents
discharged Dionigi because of "direct insubordination" and for calling an
"unauthorized walk out," and that he made the decision to discharge Dionigi
at 1 p. m. immediately after the "walk-out."
Counsel for the respondents in his oral argument, and again in his brief,
explained that by "insubordination" the respondents meant the use of intem-
perate, abusive, and threatening language to Vandernoot. Dionigi admitted
using such language. With one exception the intemperate, abusive, and threat-
ening language referred to was used by Dionigi at formal meetings between the
respondents and the Union's representatives. No outside persons were present
during these conferences. The only time Dionigi threatened Vandernoot, other
than at a joint conference was in the plant immediately following Monarch's
discharge on August 18.
The respondents did not discharge or even reprimand Dionigi at the time he
threatened Vandernoot during the two conferences preceding the one relating to
Monarch's discharge; he was not discharged at the time he threatened to report
Vandernoot to the F. B. I., immediately following Monarch's discharge ; and
he was not discharged immediately following the use of his threatening and
abusive language during the conference regarding Monarch's discharge on Au-
gust 18. Vandernoot testified that it was after he learned that Dionigi had
instigated a strike in the respondents' plant that he decided to discharge Dionigi.
It is clear from Vandernoot's testimony, and the position of the respondents,
that Dionigi's use of threatening and abusive language was not the sole reason
for his discharge. Another material reason, indeed the principal reason, was
that Dionigi had called a strike of the employees, as above related. Whatever
may be said, one way or the other, as to the calling of strikes in times like the
present, the fact remains that such strikes are not unlawful. Since Dionigi's
language is obviously a valid cause for discharge, we thus have here two causes,
one legal, the other illegal. But unless Dionigi would have been discharged
absent the illegal motivation, responsibility remains," and the burden was on
the respondents to disentangle the legal from the illegal .1 This it has not done.
On the contrary, the undersigned is convinced and finds that Dionigi's action
in calling the strike was the fact which principally motivated the respondents
in dispensing with his services.
The undersigned finds, on the entire record, that the respondents discharged
Joseph Dionigi on August 18, 1944, because of his membership in and activities
on behalf of the Union, and that by such discharge and their subsequent refusal
to reinstate Dionigi, the respondents have discriminated in regard to his hire
and tenure of employment and have discouraged membership in a labor organi-
zation and thereby have interfered with, restrained, and coerced their employees
in the exercise of rights guaranteed in Section 7 of the Act.
8 At a conference between the respondents and the Union the following day, all the em-
ployees except Monarch and Dionigi were reinstated The plant was in full operation on
August 21.
9 Vandernoot testified "We went back and checked those that had actually got up and
walked out."
10N. L. R. B. v. Remington Rand, Inc, 94 F. (2d) 862, 872 (C. C A. 2), cert. den. 304
U. S 576, N L R. B v Stackpole Carbon Co, 105 F. (2d) 167, 176 (C. C A 3) ; Wool-
worth Co. v. N. L. R. B, 121 F (2d) 658 (C C A 2).
11 Ibid.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III above, occurring in
connection with the operations of the respondents described in Section 1 above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and have led and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondents have engaged in ceitain unfair labor
practices, within the meaning of the Act, it will be recommended that they
cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act. '
Having found that the respondents discriminated in regard to the hire and
tenure of employment of Irving Monarch and Joseph Dionigi, by discharging
them on August 18, 1944 and thereafter by refusing to reinstate them as herein-
before set forth, the undersigned will recommend that the respondents offer to
Irving Monarch and Joseph Dionigi immediate and full reinstatement to their
former or substantially equivalent positions. The undersigned will further
recommend that the respondents make them whole for any loss of pay they may
have suffered by reason of the discrimination, by payment to each of them of a
sum of money equal to the amount he would have earned as wages during the
period from the date of his discharge to the date of the offer of reinstatement,
less his net earnings 12 during such period.
Upon the basis of the above findings of fact and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft & Agricultural Imple-
ment Workers of America, Local 683, C. I. 0, 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 respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
3. By discriminating in regard to the hire and tenure of employment of Irving
Monarch and Joseph Dionigi, thereby discouraging membership in International
Union, United Automobile, Aircraft and Agricultural Implement Workers of
America, Local 683, C. I. 0, the respondents have engaged in unfair labor
practices, within the meaning of Section 8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondents Philip Vandernoot and Pearl Vandernoot
12 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 work-
ing elsewhere than for the respondent , which would not have been incurred but for his
unlawful discharge and the consequent necessity of his seeking employment elsewhere. See
Matter of Crossett Lumber Company, 8 N. L R B. 440 Monies received for work per-
formed upon Federal, State , county, municipal , or other work -relief projects shall be con-
sidered as earnings See Republic Steel Corporation v N. L. R. B., 311 U. S. 7.
DAVIS PRECISION MACHINE COMPANY 539
doing business as Davis Precision Machine Company, Los Angeles, California,
their 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, Local 683, C. I. 0., or in
any other labor organization of its employees, by discharging or refusing to
reinstate any of their employees, or in any other manner discriminating in
regard to the hire and tenure of employment
(b) In any manner interfering with, restraining, or coercing their employees
in the exercise of the rights to self-organization, to form labor organizations,
to join or assist International Union. United Automobile, Aircraft & Agricultural
Implement Workers of America, Local 683, C I 0, or any other labor organiza-
tion 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 ef-
fectuate the policies of the Act.
(a) Offer to Irving Monarch and Joseph Dionigi immediate and full reinstate-
ment to their former or substantially equivalent position without prejudice to
their seniority or other rights and privileges ;
(b) Make whole Irving Monarch and Joseph Dionigi each for any loss of pay
they may have suffered by reason of the respondents' discrimination against
them in the manner set forth in the Section entitled "The remedy" above.
(c) Post at their plant at Los Angeles, California, copies of the notice attached
hereto, marked "Appendix A". Copies of said notice, to be furnished by the
Regional Office of the Twenty-first Region shall, after being duly signed by the
respondents' representative, be posted by the respondent immediately upon re-
ceipt thereof, and maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the respondents to insure
that said notices are not altered, defaced, or covered by any other material ;
(d) Notify the Regional Director for the Twenty-first Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the respondents have taken to comply therewith.
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report the respondents notify the said Regional
Director in writing that they will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondents
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) 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, Rochambeau
Building, Washington 25, D. C., an original and four "copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any other
part of the record or proceeding (including rulings upon all motions or objec-
tions) as he relies upon, together with the original and four copies of a brief in
support thereof. Immediately upon the filing of such statement of exceptions
and/or brief, the party or counsel for the Board filing the same shall serve a
copy thereof upon each of the parties and shall file a copy with the Regional
Director. As further provided in said Section 33, should any party desire per-
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) clays from the date of the order trans-
ferring the case to the Board.
Louis PLOST,
Trial Examiner.
Dated April 20, 1945.
APPENDIX A
NOTICE To ALL E MPLOYEES
Pursuant to the recommendations of a trial examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self -organization , to form labor
organizations, to join or assist International Union, United Automobile,
Aircraft & Agricultural Implement Workers of America, Local 683 , C. I. O.
or any other labor organization , 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
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and prig ileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Irving Monarch
Joseph Dionigi
All our employees are free to become or remain members of the above-nained
union or any other labor organization We will not discriminate in regard
to hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
PHILIP VANDERNOOT AND PEARL VANDERNOOT,
D. B A DAVIS PRECISION MACHINE COMPANY,
(Employer)
By -------------------------------------------
(Representative ) ( Title)
Dated------------------------
NOTE: Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the selective service act after discharge from the armed
forces.
This notice must remain posted for 60 days fioiu the date hereof, and must
not be altered, defaced, or covered by any other material.