Federal Engineering Co., Inc.

National Labor Relations Board - Board Decisions

Feb 14, 1945

60 N.L.R.B. 592 (N.L.R.B. 1945)

In the Matter of FEDERAL ENGINEERING COMPANY, INC. AND FEDERAL
ENGINEERING COMPANY, A CO-PARTNERSIIP and LOCAL 157, INTERNA-
TIONAL UNION, -UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (UAW-CIO)
In the Matter of FEDERAL ENGINEERING COMPANY, INC. AND FEDERAL
ENGINEERING COMPANY, A CO-PARTNERSHIP and INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA, INDUSTRIAL OFFICE WORKERS AMALGAM-
ATED LOCAL 889 -(UAW-CIO)
Cases Nos. 7-C-1014 and 7-C-1030, respectively. Decided
Febr.uarry 14,19,14-5
DECISION
AND
ORDER
On August 24, 1944, the Trial Examiner issued this 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 out in the copy of the Intermediate Re-
port attached hereto. Thereafter, the respondents filed exceptions to
the Intermediate Report and briefs. Local 157 and Local 889 did not
file exceptions or briefs.
Pursuant to notice and at the request of the respondents, a hearing
for the purpose of oral argument was held before the Board on Janu-
ary '11, 1945, at Washington, D. C. The respondents appeared by
counsel and participated in the argument. Local 157 and Local 889
did not appear.
The Board has considered the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the respondents' exceptions and briefs, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the modifications noted
hereinafter.
1 The Trial- Examiner found, and we agree, that by statements of
Superintendent Walter Johnson; as more fully set forth in the Inter-
60 N. L. R. B., No. 112.
592
FEDERAL ENGINEERING COMPANY, INC. 593
mediate Report, the respondents engaged in conduct violative of Sec-
tion 8 (1) of the Act. In addition thereto, Plant Manager Dan LeVine
told employee Ralph Reichard, at the time of Reichard's discharge, ac-
cording to Reichard's uncontradicted testimony, that he, LeVine,
"wouldn't have the CIO in his shop." Besides, on or about June 16,
1942, Office Manager Saul LeVine stated to employee Henry Richter,
according to Richter's testimony, in substance that the respondents'
office workers needed no union and that "he [Saul LeVine] would have
no dealings whatsoever with any union." Saul LeVine denied making
such statements to Richter. The Trial Examiner credited Richter's
testimony. Like the Trial Examiner, we credit the testimony of
Reichard and Richter, set forth above. We find that, by the afore-
mentioned additional statements, the respondents interfered with, re-
strained, and coerced the employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
2. The Trial Examiner found, and we agree, that the respondents
were not justified in discharging Ralph Reichard under the terms of
an existing closed-shop contract with the Society. At the time the
Society made demand for the discharge of Reichard upon the ground
that he was active in organizational work on behalf of Local 157,
Reichard was a Society member, paid up in dues, and the Society so
informed Plant Manager Dan LeVine; Reichard had not been ex-
pelled from the Society, no formal proceeding looking toward his ex-
pulsion was pending, and the Society did not represent otherwise to the
respondents. Under the circumstances, Reichard having complied
with the membership requirement of the closed-shop contract within
the meaning of the proviso to Section 8 (3) of the Act, the closed-shop
contract provides no justification for his discharge.' Rather we be-
lieve and find that, in discharging Reichard, the respondents were
motivated by hostility toward the CIO, and that the respondents seek
to utilize the closed-shop contract in order to accomplish their unlawful
purpose.
3. In his Intermediate Report the Trial Examiner recommended
that the respondents be required to reimburse Reichard for any loss of
pay he may have suffered by reason of the respondents' discrimination
against him, by payment to him of 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 to rein-
state him, less his net earnings during such period. Shortly after his
discharge, when the respondents refused to accede to demands for
' Matter of Ansley Radio Corpoi ation, 18 N . L R B 1028 , 1043-1044 , of N. L R B. v.
Electric Vacuum Cleaner Co , 315 U S. 685, 694-695 To the extent that our decisions in
Matter of Taylor Milling Corporation , 26 N L R . B 424 , Matter of United Fruit Company,
12 N L R . B 404, and other like cases are inconsistent with the view herein expressed, -
those decisions are hereby overruled.
628563-45-vol 60-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recognition of a new shop committee and for the reinstatement of
Reichard, the respondents' employees went out on strike, resulting in a
complete shutdown of plant operations from June 2 to June 8, 1942.
In view of the fact that the complaint does not allege that the strike
was caused in whole or in part by any unfair labor practice, our order
should be taken to mean that Reichard shall not be entitled to back pay
for the period of the strike.
4. Our back pay order with respect to Henry Richter, who was in-
ducted into the armed forces of the United States after the date that
he was discriminatorily discharged by the respondents, shall be taken
to mean that the respondents shall pay immediately to,Richter, that
portion of the net back pay accumulated between the date of his dis-
charge to the date of his induction into the armed forces, without
awaiting a final determination of the full amount of his award.
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, Federal Engineering Com-
pany, Inc., and David LeVine, Saul LeVine, Dan LeVine, and Lillian
LeVine.Waller, a co-partnership, doing business as Federal Engineer-
ing Company, Detroit, Michigan, and their officers, agents,_ successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of their
employees by discharging or refusing to reinstate any of' their em-
ployees or by discriminating in any manner with respect 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, join, or assist Local 157, International Union, United Automo-
bile, Aircraft and Agricultural Implement Workers of America
(UAW-CIO), and International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America, Industrial Office
Workers Amalgamated Local 889 (UAW-CIO), 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, 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 Ralph Reichard immediate and full reinstatement to
his former or substantially equivalent- position without- prejudice to
his seniority and other rights and privileges;
FEDERAL ENGINEERING COMPANY, INC. 595
(b) Make whole Ralph Reichard for any loss of pay he may have
suffered by reason of the respondents' discrimination against him by
payment to him of a sum of money equal to the amount which he nor-
mally 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) Upon application by Henry Richter within ninety (90) days
after his discharge from the armed forces of the United States, offer
him immediate and full reinstatement to his former or substantially
equivalent position without prejudice to his seniority or other rights
and privileges;
(d) Make whole Henry Richter for any loss of earnings he may have
suffered by reason of the respondents' discrimination against him by
payment to him of a sum of money equal to the amount which he nor-
mally would have earned as wages during the periods (1) between the
date of his discharge by the respondents and the date of-his induction
into military service; and (2) between the date five (5) days after his
timely application for reinstatement and the date of the respondents'
offer of reinstatement, less his net earnings during these periods;
(e) Post at its plant at Detroit, Michigan, copies of the notice, at-
tached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director of the Seventh Region, shall, after
being duly signed by the respondents' representative, be posted by the
_respondents immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding 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;
(f) Notify the Regional Director for the Seventh Region in writing,
within ten (10) days from the date of this Order, what steps the re-
spondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that so much of the complaint as alleges
that the respondents interfered with, restrained, and coerced their
employees by announcing a raise in wage rates on or about May 17,
1942, be, and it is, hereby dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER Of
the National Labor Relations Board, and in order to effectuate the
policies of the National Labor Relations Act, we hereby notify our
employees that :
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist Local 157, Inter-
596 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
national Union, United Automobile, Aircraft and Agricultural
Implement Workers of America (UA1vV-CIO) and International
Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, Industrial Office Workers Amalga-
mated Local 889 (UAW-CIO) 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 reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination..
RALPH REICHARD,
HENRY RICHTER.
All our employees are free to become or remain members of the
above-named unions 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 mem-
bership in or activity on behalf of any such labor organization.
------------------------------
(Employer )
By------------------------------
,(Representative ) ( Title)
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 from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Max Rotenberg , for the Board.
Hill, Hamblen, Essery, and Lewis, by Mr. Richard Forsyth, of Detroit, Mich.,
and Mr. Leonard A. Keller, of Detroit, Mich., for the respondents.
Mr. Forest C. Fair, of Detroit, Mich., for Local 889.
STATEMENT OF THE CASE
Upon a third amended charge duly filed by Local 157, International Union,
United Automobile, Aircraft and Agricultural Implement 'Workers of America
(UAW-CIO), herein called Local 157, and an amended charge duly filed by
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, Industrial Office Workers Amalgamated Local 889 (UAW-
CIO), herein called Local 889, the National Labor Relations Board, herein called
FEDERAL ENGINEERING COMPANY, INC. 597
the Board, by the Regional Director for the Seventh Region (Detroit, Michigan),
issued its complaint,' dated May 1, 1944, against the Federal Engineering Com-
pany, Inc., herein called the corporation, and Federal Engineering Company,
a co-partnership, herein called the co-partnership, (the respondents are referred
to jointly as "the respondents,") alleging that the respondents had engaged in
and were 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 com-
plaint and notices of hearing thereon were duly served upon the respondents
and upon Local 157 and Local 889.
With respect to the unfair labor practices, the complaint alleges in substance
that: (1) on or about May 24, 1942, the respondents discharged Ralph Reichard
and on June 17, 1942, discharged Henry Richter, and have since refused,to
reinstate them to their former or substantially equivalent positions because they
joined or assisted Local 157 and Local 889, respectively, and engaged in con-
certed activities for the purposes of collective bargaining or other mutual aid or
protection; and (2) the respondents, through their named officers, agents and
employees, through stated acts occurring in January through June 1942, inter-
fered with, restrained, and coerced their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On June 20, 1944, the respondents filed separate answers The corporation in
its answer admits the facts stated by the complaint as to its corporate organiza-
tion. It states affirmatively that it is not engaged in production and has no
employees and hence denies the jurisdiction of the Board. It further denies that
it has engaged in any of the unfair labor practices alleged by the complaint.
The co-partnership admits the facts stated as to its organization and the nature
of its business but denies that it has engaged in any unfair labor practices. It
states as an affirmative defense that Ralph Reichard and Henry Richter "were
discharged because of their incompetence and refusal to properly attend to the
work assigned to them to do by the respondents "
Pursuant to notice, a hearing was held at Detroit, Michigan, on June 20
through June 24, 1944, before Charles E. Persons, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the respondents
were represented by counsel and Local 889 by an international representative
of the UAW-CIO. All parties 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. At the beginning of the hearing
the respondents moved to dismiss the complaint as to the corporation "since it
engages in no business other than the holding of said factory and machinery;
buys no raw materials ; manufactures no product of any kind and does not sell
or distribute any product of any kind * * *" and "has no employees * * *."
This motion was denied without prejudice to the right of the respondents to
renew it at the close of the proceedings. The motion was not thereafter re-
newed. The respondents further moved to sever the consolidated cases con-
tending that "incorporation in a single record of the facts concerning both cases
constitutes or may constitute prejudice carried from one case to the other
and may result in an improper determination of one of said cases, or both."
This motion was denied Respondents moved to dismiss Case No. 7-0-1014 since,
as a letter incorporated in the record shows, the charging union, Local 157,
1 On January 17, 1944, the Board ordered that the cases arising from the charges filed
herein by Local 157 and Local 889 be consolidated.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desires to withdraw its charge 2 This motion was denied. The parties were
duly notified that they had the privilege of engaging in oral argument before
the undersigned. All parties waived such argument. The parties were further
advised that they might submit briefs for the consideration of the Trial Ex-
aminer . No briefs have been received.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS AND THEIR INTERRELATION a
The Federal Engineering Company was incorporated under the laws of the
State of Michigan in 1919 by David M. LeVine and two other individuals From
1919 until July 1940, this corporation functioned as a manufacturing and operat-
ing company. In 1938 the Federal Engineering Sales Company, an equal part-
nership, consisting of David M. LeVine, the father, and his three children, Saul
LeVine, Dan LeVine and Lillian LeVine Waller, was formed to handle the sales
of the corporation and other products. As of July 1, 1940, all active operations
were taken over by the Federal Engineering Company, a co-partnership with
the membership stated above. At this time the name of the corporation was
changed to Federal Engineering Company, Inc. Thereafter, the corporation
acted only as a holding company, owning land, buildings, machinery and equip-
ment which it leased to the co-partnership. The four members of the co-part-
nership own all the stock in the corporation. The directors are David, Saul.
and Dan LeVine. David LeVine is President and Treasurer, Saul is Vice-
President and Dan is Secretary. In the co-partnership, Saul LeVine is office
manager, purchasing agent, and comptroller, while Dan is plant manager. David
M. LeVine has no official title but is in -daily attendance and serves as general
technical adviser. Both the corporation and the co-partnership have their prin-
cipal office and plant at Detroit, Michigan. During the period material in these
proceedings, the plant employed from 175 to 185 production workers and a maxi-
mum of 6 or 7 office workers.
The respondents are engaged in normal times in the production of tools and
dies. During the war they have been engaged exclusively in the production of
tank, plane and ship parts and tools, dies and fixtures for military use. The
co-partnership uses patterns, forgings, engineering work and designing, steels,
tool supplies and various maintenance supplies in the operation of the business.
In the six-month period, December 1943 through May 1944, such purchases
amounted to approximately $120,000.00. A -small portion, estimated to be less
than 5 percent was purchased outside the State of Michigan. A similar amount-
while purchased from suppliers within Michigan, was produced by manufacturers
whose plants are located outside the State of Michigan. During the same six
months period sales and shipments were approximately $750,000.00 in value.
Fifty percent of these were made to war production plants within the State of
Michigan with whom the co-partnership had subcontracts. The remaining 50
percent were made to war production plants outside the State of Michigan.
2 It is well established that the Board 's jurisdiction is not affected by agreements en-
tered into by private parties. The Board acts "not to vindicate a private right, but to
give effect to the public policy as defined by Congress , viz : the prevention of unfair labor
practices which, by causing and increasing industrial strife, obstruct the free flow of inter-
state commerce " N. L. R. B. V. General Motors Corporation , 116 F. ( 2d) 306 (C. C. A. 7).
2 These findings are based on a stipulation of the parties incorporated in the record, on
allegations in the complaint admitted by the respondents in their answers and on testimony
which is uncontroverted.
FEDERAL ENGINEERING COMPANY, INC. 599
• The respondents contend' that the complaint should be dismissed as to the
'corporation since it "engages in no business other than the holding of said fac-
tory'and machinery; buys no raw materials; mar{ufacturers no product of any
kind and does not sell or distribute any product of any kind . . . . has no
employees and has not had any employees for a period of more than 3 years
preceding the date of this motion." The undersigned finds no merit in this
,contention.
The record shows that the corporation and the co-partnership are engaged in
a single enterprise conducted by the same four individuals. It is manifestly
impossible to keep separate the acts of the four partners in controlling the labor
policies of the co-partnership and in the commission of the unfair labor practices,
as found below in this Intermediate Report, from the acts of the same four
individuals when acting as owners, directors, and officers of the corporation'
Moreover, the corporation as the owner of the plant and all its non-liquid assets
is a necessary party to effectuate the policies of the Act. It is essential that the
owners of the plant who control its future and dispose of its property be joined
in these proceedings. Only through such joinder can the reinstatement of those
discriminatorily discharged and the payment of back wages found due them, be
insured.'
H. THE ORGANIZATIONS INVOLVED
Local 157, International Union, United Automobile , Aircraft and Agricultural
Implement Workers of America (UAW-CIO), and International Union, United
Automobile , Aircraft & Agricultural Implement Workers of America, Industrial
Office Workers Amalgamated Local 889 (UAW-CIO), are labor organizations
admitting to membership employees of the respondents.
III. THE UNFAIR LABOR PRACTICES
A. Background and chronology of events
The respondents maintained collective bargaining relations with the Society
,of Tool and Die Craftsmen, herein called the Society, from 1938 to 1942. Agree-
ments were negotiated and executed in 1938,6 1940, 1941, and 1942. The final
agreement, as executed on January 19, 1942, provided for a union shop. Em-
ployees within its coverage were to remain in good standing,with the Society.
4 Dan LeVine gave testimony , credited by the undersigned, reading as follows :
Inasmuch as the partnership and the corporation at various times have the same
problems , certain problems are taken up by both at the same time.
The same witness was asked :
Q. And does your father have something to do with labor relations?
A More or less as a Director of the Board would meet on different problems
In regard to labor or other situations that come up. Ordinarily there is a grievance pro-
cedure set up . . . However , he sets the general policy.
Dan LeVine also described the respondents informality of procedure , testifying that
meetings of the co-partners were held :
Right in the office, or they might even be at home, all come to the same house;
dinner occasionally . Before dinner time we may discuss something . We might be
having lunch together somewhere and discuss something . I want you to realize it is a
-close partnership , a family affair and things can come up anywhere, any time, under
any condition or circumstances.
See Matter of R. M. Johnson and G. F. Sharp , a partnership, d/b/a AAA Dental Labora-
tory, et at., and Dental Mechanics , Laboratory Technicians, Assistants and Helpers Union,
41 N. L. R. B. 263 , 282-3.
° This agreement uas extended through the year 1939 , as shown by a rider attached to
the original.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New employees were required to join that organization within five days of their
hiring. There, had been delay in negotiating this contract The draft first
submitted to the employees had been unacceptable to them and had been sent
back for revision The employees were increasingly dissatisfied with their
representation by the Society and its Chief Steward, Walter Dunham.
After discussion beginning in December 1941, a meeting of dissatisfied employees
was held at the Kendall Hotel in January 1942, soon after the new contract
was signed. Various grievances arising from the Society's Administration of
the contract were discussed An International Representative of the UAW-CIO,
Matthew Hammond,' was present and spoke. He advised that designations of
another representative by a majority of the employees must be secured before
a Board election would be held. UAW-CIO application cards were circulated for
signatures. As one result of this meeting, charges, signed by Hammond, were
filed with the Board on January 22, 1942. The Regional Director notified the
respondents on February 11, 1942, of this action 8
A second meeting of the dissatisfied employees was held at the same hotel in
April or May 1942. Both Hammond and William C. Stevenson, president of
Local 157, were present and addressed the group. These officials advised the
employees present that Local 157 could not intervene during the period of the
existing contract with the Society and that it therefore would be necessary for
them to manage their own affairs.
J. J. Griffin, president of the Society, and other representatives of the Society,
meanwhile approached Dan LeVine, complaining of the activities of the, em-
ployees leading the movement against the Society and demanding that they be
discharged under the provisions of the contract in effect. LeVine replied, as
stated in his credited testimony :
I told Mr. Griffin these men were all members-of-the [Society] and unless
I know definitely they are causing this trouble, it isn't a lot of hearsay and
personal prejudice and bias; I need these men vitally, they are all working
on important jobs, leaders and precision machine operators. I've got to have
them. Unless I could be shown definitely these men were doing these things
they were accused of, I didn't want to and couldn't possible (sic) discharge
them.
No action was taken by the respondents.
On Sunday, May 17, early in the day, three individuals, Tex Slierdell and
Anthony (Tony) Lamoretti, organizers for the Society, and a man identified-in
the record only as the brother of employee Clarence Way, came to the plant
inquiring for Chief Shop Steward Dunham. They were admitted by David
LeVine. Under Dunham's leadership they singled ,out the leaders of the dissi-
dent faction whom they roughly ordered : "Get your box and get the hell out of
here. You are through." 8 The employees so accosted began to pack their boxes
and turn in their tools at the tool crib. In so doing they were somewhat influ-
enced, as employee Mannie Schiff testified and the undersigned finds, by the pres-
ence of David LeVine and his seeming approval of the proceedings. Schiff's
testimony reads :
I looked up and I saw Dave LeVine still standing right a little ways fur-
1ther past the entrance of the shop there. He must have been about 25 feet
7 At the time of the hearing Hammond had become president of Local 157
8 These charges were withdrawn on March 5, 1942.
U This quotation is from the credited testimony of Mannie Schiff, a leader in tool work.
Other employees given similar orders were : Al Latto ; Allen J Wallace, James Gould, and
Reichard. Dunham told Reichard, "Get your tool box and get out."
FEDERAL ENGINEERING . COMPANY, INC. 601
away. I saw him looking right at us, so I assumed that he [Lamoretti]
must be talking with authority since the management were standing right
there. So I put my tools in my box and took my box off the bench and at
this time a number of the employees came over and said "What is going on?"
I told them exactly what had taken place, and they said, "Just a minute, just
a minute. Don't go off like that. After all, we are all in it together just as
much as one another."
In at least one case, however, David LeVine interposed objection to the acts of
the Society agents When employee Allen J. Wallace, a jig bore operator, was
taking his tools to the crib in accordance with Sherdell's instructions to check out,
LeVine advised Wallace, "Well, . . . he can't fire you . Let's go down here
and find out what it is all about." Accordingly they made inquiry of Sherdell
and Lamoretti By this time the employees in the shop were aroused. The
agents of the Society were told positively that those singled out for eviction from
the shop were no more involved in the movement to withdraw from the Society
than were many others So vigorous were their protests that Sherdell was moved
to apologize, saying that the situation had been misrepresented to him. He had
been led to believe that the employees opposed to the Society were few in num-
ber. In the outcome the three agents of the Society, as well as Chief Shop
Steward Dunham, left the shop as ordered by the employees who thereafter
returned to their duties.
As a result of these events the dissident group held a further meeting on or
about May 20 at the UAW-CIO hall 30 At that time it was decided to circulate a
petition. LaVerne Pentland, an employee and a leader in the dissatisfied group
testified, and the undersigned finds, that the petition "said in effect that the
undersigned wish the Company to know that they didn't accept the [Society] as a
bargaining agent." The petition was circulated during the noon hour and was
signed by a large majority of the employees. Undisputed testimony states that
98 percent of the employees signed the petition. At this meeting also UAW-CIO
application cards had been circulated. It was estimated that 90 percent of the
employees signed such cards."
On Sunday, May 24, as discussed in detail below, Reichard was discharged.
The employees protested and engaged in a work stoppage for the remainder of
the shift. After unavailing protest to Dan LeVine, they congregated in the
"barber shopf 12 and sent word to David LeVine that they desired him to come
there and explain Reichard's discharge. David LeVine did not respond to this
invitation . The employees returned to their duties at the beginning of their next
shift.
-
On the'Monday evening following, the employees held a meeting on the grounds
of a neighboring shop This was mainly devoted to discussion of Reichard's
discharge and means to be adopted to secure his reinstatement. Either then or
earlier, the dissident group elected- a committee of 10 as a shop or grievance
committee. On Tuesday morning June 2, at the opening hour, members of the
committee met Dan LeVine and presented two demands. Gould, who acted.as
spokesman, told LeVine that unless he agreed to reinstate Reichard' and to
recognize this committee of ten the employees had determined to strike at 9: 30
a. m. LeVine was angry and applied an approbrious term to the members of
10 The date of this meeting as given by various Board witnesses varied widely The under-
signed adopts the date given by James Gould who acted as chairman He testified, and
the undersigned finds, that " the discussion was more or less what had happened on a Sun-
day [May 17, 1942] in Federal Engineering"
11 Gould so testified
12 The "barber shop" is a room in which castings are ground . It was used for general
meetings of the employees.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the committee, asking if they intended to tell him how to run the shop. He also,
referred to respondent's contract with the Society and the fact that it had some
months still to run, contending that under these conditions he could not grant
the demands made.13
It does not appear that at this time LeVine referred to Reichard's reinstate-
ment or made any definite answer to this demand. Under the stimulus of LeVine's
answer and epithet the men decided to strike forthwith. All the production-
employees left the plant and it remained closed, except for the attendance of'the
office force, and was constantly picketed, until June 8, 1942.
Officials of the Procurement Division of the Army, the Federal Bureau of-
Conciliation and the Michigan State Board of Mediation intervened Several
conferences were held and on June 8 an agreement in settlement of the strike
was reached between representatives of the respondents, the Society and Local
157." The agreement provided that all employees "shall immediately report for
work " ; that an immediate election be held for a new shop committee ; and that
the respondents would immediately reinstate all employees who were on the pay
roll of June 2 if "cleared by the War Department." The final paragraph of the
agreement said: "All parties agree there will be no reprisals, recriminations or
violance, and all parties hereby pledge to devote their full capacities to getting
out production."
The Society continued its efforts to secure the discharge of UAW-CIO adherents
despite the terms of the strike settlement. On the same day the strike was called,
June 2, 1942, it had been arranged that Karl Kruming, at the time secretary and
treasurer of the Society, should be hired by the respondents. He superseded
Dunham and described his function as "to clean out the plant." In collaboration
with President Griffin of the Society, he compiled a list of 10 to 15 employees,
including Reichard's name, whom they charged "were, collecting dues for the
C. I. O. in the shop." Together with Sherdell and Lamoretti, Kruming thereafter
had a conference with Dan LeVine. The Society representatives told Levine
that "those were the men that were causing the trouble in that shop, and those
were the men that should be let out if further trouble was to be stopped." The
Society representatives admitted that the men listed had paid dues enough to
maintain their good standing status. The rules of the Society provided that
membership did not terminate until an individual was three months in arrears-
At the conference LeVine maintained .his earlier position saying: "They would
like very much to end the trouble, but they [the men listed] were practically
all key men, and it would disrupt [the shop] at that time, due to the war effort,"
Although the Society strongly insisted that discharging the men listed was the
only action which would effectively keep the C. I. O. out of the plant, the respond-
ents took no action 15
v LeVine testified as to his answer :
Well, there was only one thing I could tell them. I said that while we were
unbiased and believed in employees having an opportunity to express themselves, that'
that wasn't the time for it, that we had a definite contract, that had until the end
of the year to run unless it was renewed, and that I could tell them, nothing else but
that I would have to abide by the contract
LeVine further testified that he suggested that a new steward and shop committee
might be elected and informed the employees of the importance of the work in process for
the prosecution of the war.
14 Hammond, Stevenson and the ten members of the dissident group's shop committee
signed the agreement for Local 157.
The findings in this paragraph are based on the unassailed and credit testimony of
Kruming Dan LeVine gave testimony which is generally corroborative of the account
given by Kruming.
FEDERAL EATGINEERING COMPANY, INC. 603
A petition had been filed with the Board by Local 157, on June 5, 1942, asking
for Investigation and Certification of Representatives. With the approval of
the Board it was withdrawn on August 3, 1943. After the strike settlement the
newly elected shop committee, all members of which were adherents of UAW-CIO,
represented the employees within the terms of the Society's contract. On Decem-
her 6, 1942, a consent election was held under the Board's supervision. The
UAW-CIO won this election. On March 31, 1943, after negotiation, an agreement
was executed between the respondents and Local 157. This contract was still
in effect at the time of the hearing in these proceedings.
B. The discriminatory discharges
Ralph Reichai d was hired by the respondents on April 29, 1942, as an operator
for a horizontal boring machine, at an hourly wage of $1.70. He participated in
a blanket increase of 5 cents an hour effective May 18, 1942. He was a well
experienced tool and die employee having worked in such shops for 17 years.
He had had 6 years experience on the type of job assigned him at the respond-
ent's plant, three of which were continuous and immediately preceded his hiring
there. Reichard testified that his work had never been criticized by respondents'
supervisors. He further gave unrefuted testimony, credited by the undersigned,
that William Shiflet, a leader in the plant, said of a job done for him by Reichard
.that "it was fine, it couldn't be any better." Foreman Joe LePage corroborated
this, on Reichard's inquiry, to the extent of saying: "I think it must have been
all right, or I would have heard about it." Reichard also took over a precision
boring job in the absence of another operator and completed it to LePage's satis-
faction.'' There is further testimony by leaders Gould and Schiff, credited by the
undersigned, that Reichard did work under their supervision and proved himself
a good workman."
On the day of Reichard's discharge Superintendent Walter Johnson was ques-
tioned by various interested employees about Reichard's work and responded :
"I believe he has done very nice work. I have no complaints to make about his
work." 38
On being hired Reichard answered an inquiry on his file card as to his union
affiliation by entering "C. I. 0." He was told of the union shop contract with the
Society and took the initiative in taking out a membership within the 5 days
period required: At this time he took steps to procure a withdrawal card from the
UAW-CIO. Reichard promptly associated himself with the dissident faction.
He attended the second meeting at the Kendall Hotel and the meeting in the
UAW-CIO hall. As noted above he was one of these singled out for eviction from
the plant by the Society's agents on May 17. However, the record does not show
that he was particularly prominent in the UAW-CIO organizational campaign.
He said of his activities at the union meeting, and the undersigned credits his
testimony, "Me being new there and everything, I stood back on the sidelines."
1e These findings are based on Reichard ' s credited testimony . LePage had left the employ
of the respondent and was not available as a witness.
14 Gould's unrefuted and credited testimony was that Reichard did at least two jobs for
him as a bench leader. He further testified : "The work I got from him was all right, yes.
I would say his work was good." Schiff was a leader on tool work He testified, and the
undersigned credits his statements, that as leader he had given Reichard jobs to do. Schiff
said of Reichard 's work : "I could definitely say that there was nothing wrong. I had no
complaints to make about the work."
16 This quotation is from Schiff 's credited testimony . Gould stated Johnson's answer
as "he thought his (Reichard's) work was satisfactory." Campbell's version was, "He
(Johnson ) said he didn't see anything wrong with his work, he thought his work was satis-
factory, as far as he could see." -
'604 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
On the day of his discharge, Reichard came to work at the usual time. Events
preceding his discharge are quoted from his credited testimony, as follows
A. Well, I had started to work and had my machine running, and I believe
it was about 8 • 30 in the morning, a fellow which I don't know his name-he
worked over on a bench by Jimmy Gould, I believe-cause over to me with a
CIO application card, and he says to me, he says, "What did you do here?
Did you fill this in or leave it blank?" "Well," I says, "As far as I know,"
I says, "It don't mean anything. You can either fill it in or leave it blank."
Q. Was he talking about a particular blank space on the card?
A. Yes. That just took about half a minute, and I turned around and
started to look at the machines. I had a machine running, and a job which
I believe belonged to Mannie Schiff, and I heard Danny LeVine behind me,
and he says to this fellow who presented me the card, the man who pre-
sented me the card, "Let's see that card." ' And the fellow had it in his
shirt pocket then He handed the card to Dan LeVine, and Danny turned
around to me and says, "Yesterday I seen Sou down by the Gordon Mill
handing a fellow something, and lie put it in his pocketbook." I said,"Yes,
I did." A pencil it was It was concerning a couple of tires that I spoke
to him about that I heard lie had, and I asked for his address. Being I
didn't have a pencil-I was up on my tool box-why I asked him to loan
me his pencil and he gave it to me and I wrote down the address and
proceeded back to my machine.
Well, then, Dannie spoke up then and he says, "I have been told you were
sent in here by the CIO and that you are an 'agitator." "And," he says,
"You turn your tools in the tool crib and get out." I says, "Okay " So I
proceeded to do that. I went down to the tool crib, down to the north end
of the shop, turned in my tools, got my checks, came back up to my machines.
Reichard's discharge was soon known by the leaders of the dissident faction,
as well as the employees generally. What then occurred was described in
Reichard's testimony," which the undersigned credits, as follows :
. : . the fellows commenced to mill around me and asked me what, hap-
pened. I said, "Well, lie fired me." "What for?" "He says for agitating,
and I was sent in here by the CIO " "Well," they said, "we are not going
to stand for that. We are going to find out more about it." So they all
started to crowd up around the morgue.2° When Danny LeVine came back
out of the morgue,,they asked him, "Why did you fire Reichard?" And he
says, "Just a minute." He walks back into the morgue and -brings out
this end mill. "Here is the evidence right here." He held- it up. "And,
19 Reichard's testimony is corroborated by several Board witnesses, Thus Pentland testl-
'fled, and the undersigned credits his testimony, that Levine gave as a second explanation
of the discharge that "it was because of his Union activities ; that he had been a shop
steward over at Coleman's, and lie had his record all before him " James Gould's testi-
mony in regard to the discussion with LeVine, which is credited by the undersigned, reads
as follows :
So we all gathered around there at the stairway and talked to Dan and asked him
what it was all about. And he told us that Ralph had beer discharged for union
activities ; showed us an end mill that he had damaged on the job he was working
on, told us that there had been a few complaints about his work, his work hadn't been
satisfactory, and that he was an agitator and he had belonged to the UAW at Cole-
man's, was a shop steward at Coleman's previous to coming to Federal Engineering.
Employee Rudy DeMumbrum, also gave testimony, substantially corroborating Reichard
which is credited by the undersigned.
20 A tool crib where new and especially valuable tools were stored.
FEDERAL ENGINEERING COMPANY, INC. 605
also, I have had complaints on his work, and also frpm the Company on
this one production job he has been doing."
Well, I spoke up right away. I was standing outside of the crowd. I
said, "That is a lie because I was fired for agitating and sent in here by the
Union to organize. And how could you say it was the fault of the end mill
when you hadn't seen the end mill yet, and you had fired me before you
had seen the end mill?" Well, then, the boys spoke up and says, "Yes, how
could you'?" Well, then, he says, "The truth of the matter is that I fired
him on account of agitating, and he was sent in here from the UAW-CIO
to organize."
Schiff's testimony, in general, supports these statements of Reichard. Schiff
testified that the discussion with Dan LeVine and Johnson lasted an hour and a
half. The undersigned credits his further statement as follows: -
I know the [Society] was brought up there and we were asked by Danny
LeVine, and I believe even the superintendent, what, we had against the
[Society]. They said it was a good union They had a good chief shop
steward.
Employee Isaac Campbell also gave testimony substantiating Reichard's ver-
sion of events following Reichard's discharge. He further testified, and the
undersigned credits this uncontradicted testimony, that Dan LeVine declared at
this time that he "wouldn't have the C. I 0 " in his shop.
Dan LeVine's explanation of Reichard's discharge, on first testifying as a
witness for the Board, reads, in part, as follows :
. . on the type of work he was doing lie wasn't using adequate cutters,
and he was leaving his machine continuously. However, we might have
worried along with him a little while longer to try to give him a chance
because there was a definite shortage of boring mill operators, and-half a
loaf was better than none However, inasmuch as we had these complaints
from the Union about him, and inasmuch as he was definitely a trouble-
maker, in order to keep peace and harmony around there and abide by our
contract, we gave the fellow a release.
In later testimony as respondent's witness, Dim LeVine told of the early
incident in which he had accused Reichard of UAW-CIO activity in work time.
LeVine insisted that Reichard gave "Lorento" a card "in the general shape of a
Union card." He also insisted that in the later incident with the unidentified
man on the clay of Reichard's discharge he saw Reichard take a union card
out of his pocket and give it to the man who thereupon started to fill it out.
LeVifie corroborated Reichard as to one matter since he testified that the
unidentified man told LeVine that somebody in the vicinity of his bench "sent
him over to see Reichard." LeVine further stated his information that Reich-
ard had been a Union steward at Coleman's had been checked and found
correct
Since the record establishes the essential fact that Reichard's discharge was
based primarily on his union activities the undersigned does not find it necessary
to examine in detail the allegations of the respondents that Reichard was
inattentive to his duties and used dull cutters or to resolve the conflicts of
testimony thereon 21
21 The respondents attacked the credibility of Board witnesses Reichard , Schiff and
Gould by attempting to show through time slips that Reichard was exclusively engaged on
a production or repeat job, in his last three weeks of employement. Their contention is
that lie could not have worked for other leaders (luring these weeks . The time slips pre-
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'Concluding findings as to Reichard's discharge
The respondents contend that Reichard's activities on behalf of Local 157
during working time furnish justification for his discharge. The Board's policy
as to union activities carried on in working time has been defined recently.'
The Board recognizes that it is "within the province of an employer to promul-
gate and enforce a rule prohibiting union solicitation during working hours."
However, such a rule must not be adopted for a discriminatory purpose and
it must be impartially enforced. It is clear that no formal rule against such
solicitation had ever been established in the respondents' plant. Reichard ad-
mitted answering an inquiry regarding a Local 157 application card during
Sunday work hours when double time was paid. This incident immediately
preceded his discharge. Assuming, arguendo, that he had furnished the uniden-
tified employee an application card, as Dan LeVine alleged, this act, under the
conditions here disclosed, could not constitute justification for Reichard's dis-
charge. It is clear that the employee who had made the inquiry had taken the
initiative, leaving his post of duty and moving across the shop to Reichard's
machine. Nevertheless, he incurred no penalties. Moreover, the Society's
chief steward, Dunham, openly participated in the flagrant Society activities
in work time on the Sunday preceding. Dunham then ordered Reichard to
leave the plant and to terminate his employment. Dunham was openly active
in pointing out other leaders of the dissident group who also were ordered out
of the plant. These inexcusable acts, for which Dunham was largely respon-
sible interrupted the work of the entire plant for a considerable period while
double time pay was accruing. Dunham was not discharged nor does the
record reflect any disciplinary action imposed for his acts on May 17, 1942. By
comparison Reichard's acts, viewed in the worst possible light, were of minor
significance. -
Nor does the undersigned find justification for Reichard's discharge in the
demands presented to the respondents by the Society. Reichard promptly
joined the Society. He paid the initial fees and his discharge occurred too
soon to allow him to fall into arrears. He was never expelled from the Society.
Moreover, he took steps to withdraw from his membership in Local 157. He
attended two meetings of the dissident faction, but he was not prominent
in the discussions held there. He advised would be adherents and was known
to be sympathetic with those working for a change in the union representative.
The undersigned finds his activities consonnant with the "full freedom of
association, self-organization, and designation of representatives of their own
choosing, for the purpose of negotiating the terms and conditions of their
employment or other mutual aid or protection" which is the declared policy
of the Act. The record makes entirely clear that there was wide-spread and
deep-seated dissatisfaction with the Society as the employees' representative.
This dissatisfaction was a major cause of the strike which closed the plant
from June 2 through June 8, 1942. Further manifestations of the employees'
discontent are shown in their election, under the provisions of the strike settle-
ment, of Local 157 members to the new shop committee. These sentiments
persisted for the six months ensuing and resulted in the election of Local 157
sented, however, do not account for 3 hours' work time on Sunday May 24, nor for an hour's
time on Wednesday , May 20, in the preceding week. Moreover , the record presented covers
only 17% hours out of 66, the normal full-time week, in the week preceding. There is,
therefore , no-proven discrepancy in the testimony on this matter by Reichard , Gould and
Schiff.
12 See Matter of Peyton Packing Company, Inc., and Amalgamated Meat Cutters and
Butcher Workmen of N. A., A. F. of L., Local # 606, 49 N. L. R. B. 828.
FEDERAL ENGINEERING COMPANY, INC. 607
is their representative when an election was held under the Board' s super-
vision in December 1942. After the strike settlement the employees accepted
the contract for its duration. The undersigned finds no justification for Reich-
nrd's discharge under the provision of the Society's union shop contract. Reich-
ard fulfilled those provisions In joining the dissident group, and advocating
.a change in affiliation from the Society to Local 157 as a means for retaining the
benefits of unionization while avoiding the dissatisfaction which the employees
manifested with the actions and policies of the Society, Reichard was exercising
the freedom of action guaranteed by the Act and he is entitled to the protection
,which the Act throws around such activities 23
Upon the foregoing facts, in the light of the entire record, the undersigned
is convinced that the basic cause of Reichard's discharge was the respondents'
desire to prevent a defection of its employees to Local 157 and to avoid the
,difficulties which they believed would result from an interruption of their rela-
tions with the Society. Confirmatory of this conclusion is Dan LeVine's dec-
laration made immediately after Reichard's discharge, as found above , that he
"wouldn't have the C. I. 0." in his shop. The effect of Reichard's dismissal would
necessarily be, as the respondents intended, to encourage continued member-
ship in the Society and discourage the defection to Local 157 and the C. I. 0.
Equally the respondents ' action would interfere with, restrain, and coerce the
plant 'employees in a matter of self-organization and with regard to their
forming, joining and assisting a labor organization other than the Society and
their engaging in concerted activities for mutual aid and protection.
After considering the record and the demeanor of the witnesses, the under-
signed concludes and finds that the respondents discriminatorily discharged,
Ralph Reichard and thereafter refused to reinstate him, thereby discouraging
membership in a labor organization. By such action and by the anti-union
statements of Dan LeVine in connection therewith the respondents have inter-
fered with, restrained, and coerced their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Henry Richter was hired by the respondents on April 22, 1942, as a "follow up"
clerk. His duties involved keeping track of orders for patterns and castings
placed with other Detroit firms and making efforts to expedite their delivery ;
similar follow up work on the progress of orders through respondent's plant
with a weekly percentage estimate of progress made, and daily posting of
employee's reports of time spent on the various orders in process. Richter
had had no factory experience. Saul LeVine ordinarily had full control of
office employees. However, since the factory supervisors would be concerned
with Richter's follow up work, Saul LeVine conferred with David and Dan
LeVine before hiring Richter. Dan LeVine expressed doubt as to Richter's
qualifications and noted on his file card: "Doesn't have experience, but will try
to see if he can qualify." Since the need for clerical labor "was very critical,"
Saul LeVine decided to employ Richter, although as he testified, doing so was
"against the judgment of my dad and my brother." He arranged for Richter's
attendance on an evening class in blueprint reading conducted by the Detroit
Public Schools.
Richter came under the immediate supervision of Allan Waller, assistant office
manager and purchasing agent for the respondents. Waller gave him close
supervision and instruction for the first three weeks of his employment. There-
after, Waller judged that he was prepared to carry out his duties with only
23 See Matter of Ansley Radio Corporation and Local 1221 United Electrical and Radio
Workers of America, C. I. 0., 18 N L. R. B. 1028.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incidental supervision. Richter testified 24 that there had been no complaints
about his work. He further gave unrefuted testimony, credited by the under-
signed, to the effect that a "small filing method of knowing exactly what castings
and work was being done by other corporations at any particular moment,"
had been installed by him and had been approved by Dan LeVine as a "swell
idea" and mentioned to David LeVine. Although Waller, Saul LeVine and Dan
LeVine all assailed Richter's work performance, as discussed below, they left
Richter's testimony as to this filing method uncontroverted
At the time of the strike Richter became interested in the UAW-CIO. He
volunteered to organize the office workers and secure their cooperation in the
strike by refusing to pass the picket line. He was advised that participation in
the strike by the office workers was not necessary. They continued to perform
their duties during the strike. Richter had joined Local 157 When the Union
officials discovered that he was an office worker his card and fees were transferred
to Local 889. Richter established relations with James Buckley, international
-representative of Local 889 and turned in the Union application cards and fees
for three other employees in respondents' office. Richter also participated in
,the picketing during off duty hours and conversed with the pickets when passing
the lines in the course of his daily duties. David LeVine observed these'activities
and came to Richter's office asking him what he was doing in the picket line.
Richter replied that he "had to keep on friendly terms with the men in the uiteiest
of the production, and therefore wanted to remain on friendly terms with any and
all sides of the controversy " 25
On June 15, 1942, Buckley sent a letter to the respondents by registered mail.
The Post Office return receipt shows that it was received on June 16, 1942. In
this letter Buckley claimed that Local 889 represented a majority of the office
workers and requested recognition and a conference date "to negotiate a contract
for such employees " The letter had been addressed to Dan LeVine but was
routed to Saul LeVine as the partner charged with administration of the, office.
After receipt of the letter Saul LeVine came to Richter's office and a conversation
ensued, stated in Richter's credited testimony, as follows :
[Levine said] : What is all this union business about -
I replied that it was merely a request for collective bargaining and the right
for the union to represent the workers, in this case the office workers.
He replied, "We do not need any unions to represent us." That if we had
any complaints we could come up and speak to him directly and individually.
I replied that that was a mighty hard thing for individuals to do, as they
could not hardly expect to continue on the job much longer after making any
complaint Therefore, it was necessary for a union to represent us.
He said we did not need any union and he would have no dealings whatso-
ever with any union. Also, he mentioned that we were part of management
and as such needed no union to represent us 2°
24 Prior to the service of the complaint in these proceedings Richter had entered the
service of the United States Navy He was stationed at Camp Rosseani, Port Hueneme,
California Pursuant to an order duly issued and served by the Regional Director, his
testimony was taken by deposition at Los Angeles, California, on June 8, 1944.
25 This finding is based on Richter's testimony David LeVine, although in daily at-
tendance at the factory, was not called as a witness Richter ' s testimony- is thus uncon-
troverted -
20 Saul LeVine denied that he had a conversation with Richter "About this letter and the
Union." In view of the circumstantial character of Richter ' s testimony and the discrepan-
cies and contradictions in Saul LeVine ' s testimony discussed below, the undersigned
rejects LeVine 's denial. -
FEDERAL ENGINEERING COMPANY, INC. 609'
Richter had secured union buttons for himself and the other union adherents
in the office They began wearing them that day. Saul LeVine in his testimony
admitted that they had attracted his attention. He stated that he had noticed
buttons worn by one or,two women clerks and that Charles Lalibn, pay-roll clerk,
did not wear it UAWV-CIO button Dan LeVine testified more frankly regarding
the respondents' knowledge of Richter's UAW-CIO activities. He acknowledged
that they had learned that Richter "was trying to organize the office work-
ers," about a week after the strike and at the time the respondents were
approached by Local 889.27
Buckley telephoned the plant on June 17 and had a conversation with Saul
LeVine Buckley and LeVine in their testimony agree that LeVine refused to
arrange a conterence date Saul LeVine referred to the recent strike stating that
his participation in efforts to settle that controversy had delayed his office work.
On direct-examination LeVine testified further, that he told Buckley, "It would
not be possible for me to attend a conference with him, but that I would sometime
in the future if he desired." When asked under cross-examination : "Did you at
that time tell [Buckley] you were going to meet with him at some later time
concerning the office employees?" LeVine replied: "No, I didn't tell him definite.
I told him I didn't want to take the matter up at the present time Buckley
testified positively that LeVine refused to consider meeting' at any time. Buck-
ley's testimony in point here reads:
Saul LeVine came to the line, and I explained to him what I was trying to
get at, a meeting with the Company regarding the office workers, and their
demands for a contract with the Corporation, and lMr Saul LeVine was very
much upset and he says as far as he was concerned, the number of employees
involved was so small that it didn't matter, it was trivial, and they were
having enough trouble with the factory without getting involved with the
office workers, and if any of them didn't like it, they could quit ; as far as
meeting with me, he was going to have none of it.
I tried to explain to him that I had received no letter, no answer to my
request, and I wondered if he was going to answer. He said there was no
such thing, there wouldn't be no answer to it, it was an answer that was
given to me right then and there. He was rather excited. I tried to tell him
that there being only four employees we could have a show down on cards.
He wouldn't have none of that I tried to get a meeting, a definite (late or
even an indication that lie would meet He said he wasn't having none of
that, as far as lie was concei ned. the matter was going to be dropped right
then and there, and I think he hung up on me.
In resolving this conflict of testimony the undersigned has been influenced by
the fact that Buckley's letter of June 15, as well as a later letter of June 29, 1942,
was ignored by the respondents, that Buckley's testimony is corroborated by that
of Richter quoted above and that the desired conference in fact never did take
27 Excerpts from Dan LeVine's testimony on this matter read as follows :
Well , [ Richter] was talking to certain individuals we found out later were inter-
ested in the other union , that is, the CIO Union , that lie had been talking to those
men at various times and , progressively toward strike and after strike time we real-
ized that he might have been , or must have been conferring on union activities rather
than taking care of the work lie was supposed to be doing
When asked whether the respondents were "of the opinion that Richter might be inter-
ested in the UAW-CIO," he responded
That's right . After this strike, so -called , it must have been about a week or so
later that we found out definitely . . . That lie was trying to - organize the office
workers . . . . I think he approached us, or some one else approached us at the time.
628563-45-vol. 60 40
,610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
place. After considering the entire record and the demeanor of witnesses Buckley
and Saul LeVine and the contradictory character of the latter's testimony, the
undersigned accepts the testimony of Buckley and rejects that of Saul LeVine.
It had been arranged between Buckley and Richter that the latter would call
Buckley after the telephone conversation with Saul Levine and learn the out-
come. He accordingly did so and was told the results of the discussion. Shortly
thereafter, Richter called Buckley again and announced that he had been dis-
charged. Richter's testimony as to the circumstances of his discharge is that,
after talking with Buckley, he had reported to Schiff, Gould and Wallace, in-
dividually, that Local 889 would not be recognized Saul LeVine observed his
conversation with Gould and within 10 minutes came to Richter with a check
for the full week and told him that he was fired. LeVine further instructed
Richter that he was not to work further but was to leave the plant immediately.
Richer, nevertheless, reported his discharge to members of the shop com-
mittee and they conferred with David and Saul LeVine Richter described the
interchange as a "heated conversation" in which he charged the LeVines "with
an anti-union attitude throughout, both in their dealings with the UAW-CIO,
Local 157, and specifically now with our request for union representation."
Richter testified that the LeVines again repeated what Saul LeVine "had told
me originally, that we had no need for a union of office workers, we were a part
of management and not a part of the shop. And they insisted I was being fired
-on merely grounds of being unsatisfactory." At the time Richter demanded that
the reason for his discharge be put in writing but Saul LeVine refused to do so.
Buckley, in his letter of June 29, to Saul LeVine, charged that Richter had been
"discharged solely for Union activities" and, requested an "opportunity to
arrange the reinstatement and payment of lost wages" to him. The respondents
ignored this letter.
The respondents' convention as to the reason for Richter's discharge is de-
veloped in testimony by Waller and Saul LeVine. Waller testified that Richter's
.work had been progressively inaccurate and inadequate, partly due to inexpe-
_rience but more to lack of interest and effort. He testified that on Saturday June
13, Richter refused to wrap some blue prints for mailing and thereafter left
the plant at 2: 39, as his time card shows, on his own motion. Regular closing
time was 5: 30. On Monday Waller reported this occurrence to Saul LeVine who,
as each of them testified, thereupon gave Richter a week's notice and directed
that he cooperate with Waller in straightening out his work and turning data
over to his successor. On Monday and Tuesday, as Waller and Saul LeVine
testified, Richter and Waller conferred to this end. Saul LeVine further testified
that on Tuesday evening Waller reported that he was getting, no cooperation
from Richter. LeVine's testimony was that he then decided to let Richter go at
once and so informed him the first thing on Wednesday morning. Wailer,
although specifically questioned regarding Richter's last week of employment,
voiced no complaint regarding Richter's cooperation. He gave no indication that
he had knowledge of the reason for Richter's summary termination on Wednes-
day,-and said nothing of the complaint on Tuesday evening which Saul LeVine
ascribed to him 2' It is significant that Saul LeVine followed Waller as a witness.
28 The significant excerpts from Waller's testimony read as follows :
Q. Did you see Richter after Monday?
A. Oh, yes.
Q. Did you see him a day or so later 9
A Yes, I saw him because I went down to find out-he was to line me up as to the
status of all matters that he had been handling; there was nobody else to take it over.
Q. Did you talk to him on Monday?
FEDERAL ENGINEERING COMPANY, INC. 611
Questions addressed to Waller suggested that an explanation was desirable as
to the sudden cutting short of the notice allegedly given to Richter.
In resolving these conflicts of testimony the undersigned has remembered the
handicaps resulting from the fact that Butcher's testimony was taken by deposi-
tion allowing no opportunity to observe the demeanor of this witness and from
the further fact that Richter was not available for rebuttal testimony. It is
noted that Richter's testimony makes no mention of a notice of discharge given
him, nor did he notify Buckley, with whom his relations were very close, that
such notice had been given. To the contrary, Richter testified that he protested
to Saul LeVine when discharged telling him "that it was peculiar that I should be
suddenly considered unsatisfactory after I was found to be a union active mem-
ber." There is a serious discrepancy also in Saul LeVine's testimony in that he
first stated that Richter worked a few hours in then morning on Wednesday June
17, while later testifying that he notified Richter of his summary discharge at the
beginning of that day. The record shows that such notice was not given until
after Buckley's conversation with Saul LeVine. Buckley -testified that this
occurred Wednesday afternoon. The discharge immediately, and significantly.
followed that event. The undersigned finds Saul LeVine in error also, as noted
above, in his testimony regarding his interview with Buckley and finds on com-
paring his testimony with that of Dan LeVine that he was not completely frank
in his testimony regarding respondents knowledge of Richter's UAW-CIO activi-
ties. Finally, the undersigned is influenced by the discrepancies between the
testimony of Waller and Saul LeVine regarding Richter's final days in respondents
employ.
After considering the entire record, the anti-UAW-CIO attitude manifested by
the respondents and the demeanor of witnesses Buckley, Saul LeVine and Waller,
the undersigned rejects the version of Richter's discharge given by Waller and
Saul LeVine and accepts that found in testimony by Richter and Buckley. He
is convinced and finds that Henry Richter was discriminatorily discharged, and
thereafter refused reinstatement,, because of his union activity and because he
joined Local 889 for the purposes of collective bargaining or other mutual aid and
protection. By such discharge the respondents have discouraged membership in
a labor organization and have interfered with, restrained, and coerced their
employees in the exercise of the rights guaranteed in Section 7 of the Act.
C Further acts of interference,' restraint, and coercion
The Board's complaint charges that "on or about May 17, 1942, when substantial
interest in [Local 157] was being manifested by respondents' employees, respond-
ents posted a notice announcing a raise in wage rates for the employees, and that
such action amounted to interference, restraint, and coercion. Chief Shop
Steward Dunham, following a suggestiong from the employee§, negotiated a 5-cent
per hour general wage increase effective May 18, 1942. Notice was posted to that
effect by Superintendent Johnson The first notice was found defective and was
removed from the bulletin board at Dan LeVine's directon. A revised notice was
posted that same day which gave Dunham credit for securing the raise. Employees
were scarce at the•time and wage raises occurred at frequent intervals. The
Society was the recognized representative of the employees and Dunham was
A. I talked to him on Monday.
Q. Did you talk to him on Tuesday?
A. I talked to him on Tuesday
Q. Did you talk to him on Wednesday?
A. I don't know whether I saw him on Wednesday or not, but on Tuesday I talked
and I don't remember about Wednesday.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chief Steward of the 'Society. Under these conditions the undersigned finds that
both the granting of a wage increase and crediting Dunham with securing it, as he-
in fact did , were legitimate actions. He finds no merit in this contention of the
Board and will recommend that -so much of the complaint as advances it be
dismissed.
Gould and Schiff gave uncontroverted testimony , accepted by the undersigned,
concerning an incident occurring about May 20, 1943, when they, together with
employee Al Latto, approached Superintendent Johnson with a request to hold
an employee meeting in the plant . Johnson told them that the request would
have to be referred to the LeVines He volunteered the statement : "Why don't
you keep the Union in the shop that you've got ? It's a good Union, . . . I can't
find no fault with it." 20
Reichard testified , and the-undersigned credits his unrefuted statement, that
on another occasion not definitely dated, Johnson said to him , Schiff and em-
ployee Barnes , "You fellows want to get this straight , . . . We have a Union,
here and we are going to keep it ." The employees made no reply
The undersigned finds that by these statements of Superintendent Johnson
to employees Gould, Schiff , Latto, Barnes, and Reichard , and by the discharge
of Ralph Reichard and Henry Richter, the respondents h, *e interfered with,
restrained , and coerced their employees in the exercise of the rights guaranteed
by 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 respondents have engaged in certain unfair labor
practices, the undersigned will recommend that they cease and desist there-
from and take certain affirmative action in order to effectuate the policies of
the Act. '
It has been found that the respondents discharged Ralph Reichard and Henry
Richter for the reason that they engaged in concerted activities or joined and
assisted a labor organization for the purposes of collective bargaining or other
mutual air or protection. It will be recommended that the respondents offer
Ralph Reichard immediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniority or other rights and
privileges he may have It will be further recommended that the respondents
make whole Ralph Reichard for any loss of pay he may have suffered by reason
of his discriminatory discharge by payment to him of a sure of money equal to,
the amount he normally would have earned as wages from the date of his
discharge to the date of the respondents' offer of reinstatement, less his net
earnings 30 during said period.
20 This quotation is from Gould's testimony. Schiff's version was that Johnson said:
"Let's cut all this controversy short. We are quite satisfied with this Union that is in the
shop right now." Latto did not testify.
25 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 unlawful discharge
and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett
FEDERAL ENGINEERING COMPANY, INC. 613
Inasmuch as Richter has been inducted into the military service of the United
States and is,, accordingly, not available for immediate reinstatement, it will be
recommended that the respondents, upon application by Richter within forty (40)
clays after his discharge from the armed forces of the United States, offer him
reinstatement to his former or a substantially equivalent position without preju-
dice to his seniority or other rights and privileges. It will be further recommended
that the respondents make Richter whale for any loss of earnings he may have
suffered by reason of the respondents' discrimination against him by payment to
him of a stun of money equal to the amount he would normally have earned as
wages during the periods (1) between the date of his discharge by the respondents
and the date of his induction and (2) between a date five (5) days after Richter's
timely application for reinstatement and the date of offer of reinstatement by the
respondents less his net earnings 31 during these periods,
CONCLUSIONS OF LAw
1. Local 157, International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America (UAW-CIO), and International Union,
United Automobile, Aircraft and Agricultural Implement Workers of America,
Industrial Office Workers Amalgamated Local 889 (UAW-CIO), are labor organ-
izations within the meaning of Section 2 (5) of the Act.
2. Federal Engineering Company, Inc., is an employer within the meaning of
Section 2 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Ralph
Reichard and Henry Richter, thereby discouraging membership in a labor organ-
ization, the respondents have engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8 (3) of the Act.
4 By interfering with, restraining and coercing their employees in the exer-
cise 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.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6 The respondents have not interfered with, restrained, and coerced their
employees by announcing a raise in wage rates on or about May 17, 1942.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law the under-
signed recommends that the respondents, Federal Engineering Company, Inc.
and David M. LeVine, Saul LeVine, Dan LeVine and Lillian LeVine Waller, a
copartnership doing business as the Federal Engineering Company, and their
officers, agents, successors and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in any labor organization of their employees by
discharging or refusing to reinstate any of their employees or by discriminating
in any manner with respect to their hire or tenure of employment or any term
or condition of their employment ;
Lumber Company and United Brotherhood of Carpenters and Joiners of America, 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 be
considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U S. 7.
11 See footnote 29, supra.
614 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
(b) In any other manner interfering with, , restraining , or coercing their em- -
ployees in the exercise of the right to self-organization , to form, join or assist
' Local 157 , International Union , United Automobile , Aircraft and Agricultural
Implement Workers of America (UAW-CIO) and International Union, United-
Automobile , Aircraft and Agricultural Implement Workers of America, Indus-
trial Office Workers Amalgamated Local 889 (UAW-CIO) or any other labor
organization , to bargain collectively through representatives of their own choos-
ing and to engage in concerted activities for the purposes 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 Ralph Reichard immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other rights.
and privileges;
(b) Make whole Ralph Reichard for any loss of pay he may have suffered by
reason of the respondents discrimination against him by payment to him of 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 respond-
ents' offer of reinstatement , less his net earnings 92 during said period ;
(c) Make whole Henry Richter for any loss of earnings he may have suffered
by reason of the respondents ' discrimination against him by payment of a sum
of money equal to the amount he normally would have earned as wages during.
the periods (1) between the date of his discriminatory discharge by the respond-
ents and the date of his induction into military service; and ( 2) between a date,
five (5 ) days after Richter ' s timely 93 application for reinstatement and the date
of respondents ' offer of reinstatement , less his net earnings 94 during each of these
periods ;
(d) Post immediately in conspicuous places throughout their plant in Detroit,
Michigan, and maintain for a period of at least sixty ( 60) consecutive days,
notices to their employees stating: (1) that the respondents will not engage ih
the conduct from which it is recommended that they cease and desist in para-
graphs 1 (a) and ( b) of these recommendations ; (2) that the respondents will
take the affirmative action set forth in paragraph 2 (a), (b), and ( c) of these
recommendations ; and (ii ) that the respondents ' employees are free to become
and remain members of Local 157, International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America (UAW-CIO), and
International Union, United Automobile , Aircraft and Agricultural Implement
Workers of America, Industrial Office Workers Amalgamated Local 889 (UAW-
CIO); or any other labor organization they may wish to join , and that the re-
spondents will not discriminate against any employee because of his membership
or activity in any labor organization ;
(e) File with the Regional Director for the Seventh Region on or before ten
(10) days from the date of the receipt of this Intermediate Report, a report in
writing setting forth in detail the manner and form in which the respondents
have complied with the foregoing recommendations. -
It is recommended that so much of the complaint as alleges that the respond-
ents interfered with , restrained , and coerced their employees by announcing a
raise in wage rates on or about May 17, 1942, be dismissed.
32 See footnote 29, supra.
83 As provided in Section V of this Intermediate Report.
31 See footnote 29, supra.
FEDERAL ENGINEERING COMPANY, INC. 615
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondents notify said Regional Di-
rector 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, effective November 26, 1943, any
party or counsel for the Board may within fifteen (15) days from the date of
the entry of the order transferring the case of the Board, pursuant to Section
32 of Article II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington, D C., an original and four copies of a statement in writ-
ing 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 lie relies upon, together with the original and four copies of a brief
in support thereof. Immediately upon the filing of such statement of excep-
tions and/or brief, the party or counsel for the Board filing the same shall serve
a copy thereof upon each of the other parties and shall file a copy with the
Regional Director. 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 within ten (10) days from the date of the order transferring
the case to the Board.
CHARLES E. PERSONS,
Trial Examiner.
Dated August 24, 1944.