Gardner-Denver Co.

National Labor Relations Board - Board Decisions

Sep 6, 1944

58 N.L.R.B. 81 (N.L.R.B. 1944)

In the Matter of GARDNER-DENVER COMPANY c nd UNITED STEELWORKERS
OF AMERICA, LOCAL UNION No. 3029
Case No. 17-C-1089.-Decided September 6, 1944
DECISION
AND
ORDER
On May 4, 1944, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent, Gardner-
Denver Company, had engaged in and was engaging in unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set out in the copy of the Intermediate
Report attached hereto. Thereafter the respondent filed exceptions
to the Intermediate Report and a brief in their support. 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 Intermediate Report, the exceptions
and brief of the respondent, and the entire record in the case; and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following modifications :
1. The salient facts may be stated briefly : On August 10, 1943, em-
ployee Hilda Body, a member of the Union, quit her employment
rather than accept a reduction in her piece-work rate. That same day,
the Union persuaded Body to report for work the next morning and
appointed a committee to confer with the" management about the
reduction in Body's rate. The management refused to negotiate with
the union committee and refused to allow Body to resume work. A
member of the Union's committee reported this to employee Hilda I.
Johnson, a member of the Union. On August 11, Johnson was in-
structed to perform Operation 13, the work that Body had performed,
but refused to comply with this direction for the stated reason that as
a member of the Union she had pledged herself not to perform Body's
work until the dispute over the piece-work rate for that work should
be adjusted. On reiterating her position, Johnson was told by her
foreman that she would "be justified in laying off." The next morning,
after having conferred with a representative of the Union, Johnson
58 N. L . R. B., No. 15.
609591-45-vol. 58-7 81
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applied for reinstatement , expressing a willingness to perform Oper-
ation 13 or any other work desired of her . On August 13, 1943, John-
son again applied for reinstatement on the same terms but the respond-
ent has not put her back to work , and has taken the position that it
will not reemploy her for the reason that it has a policy never to rehire
a person discharged for refusing to perform a work assignment.
For the reasons expressed in Matter of Pinaud, Inc., 51 N. L. R. B.
235, we do not accept the Trial Examiner 's conclusion that the re-
spondent discriminated against Johnson, in violation of Section 8
(3) of the Act, on August 11, 1943.
2. We find, however , as did the Trial Examiner , that in rejecting
Johnson's application for reinstatement on August 13, 1943, and in
thereafter adhering to the position that it would never reemploy her,
the respondent has discriminated against Johnson in violation of
Section 8 ( 3) of the Act. Accordingly, we shall order the respondent
to reinstate her with back pay from that date. The reasons impelling
us to this conclusion are as follows : Johnson's refusal to perform
Operation 13 was, as the respondent knew, in furtherance of the
Union's endeavor to secure reinstatement for Hilda Body with an
adjustment of her piece-work rate . In refusing to perform Operation
13 until this dispute was settled , Johnson was attempting to assist
the Union , of which she was a member, in attaining this objective.'
Section 7 of the Act guarantees employees "the right to * * *
assist labor organizations , * * * and to engage in concerted
activities , for the purpose of collective bargaining or other mutual
aid or protection." Johnson's action constituted lawful assistance
to her Union within the meaning of Section 7; it was a part, more-
over, of the lawful concerted activities that found their initial ex-
pression in the Union's endeavor to secure Body's reinstatement.
Hence, in refusing to perform Operation 13, Johnson was exercising
rights guaranteed her in Section 7 of the Act, and the respondent
could not lawfully discha"rge or refuse to reinstate her merely because
she had exercised those rights . Compare N. L. R. B. v. Mackay Radio
e€ Telegraph Co., 304 U. S. 333.
This is not to say, however, that on August 11 respondent had to
acquiesce in Johnson 's refusal to perform Operation 13. By refus-
ing 'to obey the respondent 's direction , Johnson assumed a position
analogous to that of employees who go on strike because of a labor
1 The respondent 's contention that no labor dispute existed on August 11, when Johnson
refused to perform- Operation 13, because Hilda Body had already quit her employment
rather than accept a reduction in the piece -work rate for Operation 13 ignores these super-
vening facts : namely, (1) that on August 10, the very day when Body quit her employ-
ment, the Union persuaded her to apply for reinstatement ; (.2) that the Union appointed
a committee for the purpose of securing Body's reinstatement and of effecting an adjust-
ment of her rate; and ( 3) that the management refused to treat with this committee.
These circumstances plainly gave rise to a labor dispute under the broad definition of that
phrase in Section 2 (3) of the Act.
GARDNER-DENVER COMPANY 83
dispute not caused by unfair labor practices. In such a case the
employer may insist that the striking employees do his bidding or
leave the plant, and if they refuse to obey his direction, he is privi-
leged to replace them in order that he may carry on his business.
The Mackay case supra, 304 U. S. at 345. But where the striking
employees apply for reinstatement on his terms before the employer
has exercised his privilege of replacement, he may not deny them
reinstatement merely because they went on strike. When Johnson
applied to the respondent for reinstatement on August 13, expressing
a willingness to perform Operation 13 or any other work desired of
her, it was the respondent's duty to put her back to work since it
had not replaced her. Nor was the respondent absolved of this duty
by its policy not to reemploy a person discharged for refusing to
perform a work assignment.2 For, Johnson's refusal to perform
Operation 13 was, as has been noted, protected by Section 7 of the
Act, and no policy of management may lawfully be applied in
derogation of rights guaranteed employees by 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 respondent, Gardner-Denver Company,
Denver, Colorado, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discharging, refusing to reinstate, or in any other manner dis-
criminating in regard to the hire and tenure of employment of its em-
ployees, because they engaged in concerted activities or other mutual
aid or protection, and thereby discouraging membership in a labor
organization;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Steelworkers of America,
Local 3029, affiliated with the Congress of Industrial Organizations,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which will effectuate the
policies of the Act :
(a) Offer to Irene Johnson immediate and full reinstatement to her
former or a substantially equivalent position, without prejudice to
her seniority and other rights and privileges;
2 We are satisfied that such was the respondent 's policy.
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole Irene Johnson for any loss of pay she may have
suffered. by reason of the respondent's discrimination against her, by
payment to her of a sum of money equal to that which she normally
would have earned as wages from August 13, 1943, to the date of
respondent's offer of reinstatement, less her net earnings during said
period;
(c) Immediately post in conspicuous places throughout its plant,
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating: (1) that the
respondent will not engage in the conduct from which it is ordered to
cease and desist in paragraph 1 (a) and (b) hereof; (2) that the
respondent will take the affirmative action set forth in paragraph 2 (a)
and (b) hereof; and (3) that the respondent's employees are free to
become or remain members of United Steelworkers of America, Local
3029, affiliated with the Congress of Industrial Organizations, or any
other labor organization, or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, and
that the respondent will not discriminate against any employee because
of membership in or activity on behalf of that organization, or because
he engaged in concerted activity for the purpose of collective bargain-
ing or other mutual aid or protection;
(d) Notify the Regional Director for the Seventeenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
Additional Opinion of MR. GERARD D. REILLY :
Inasmuch as the concurring opinion of the Chairman would in-
dicate that the decision in the Pinaud case is not as clear as it might
have been, a word of clarification seems to be appropriate at this
time. I
In the Pinaud case, the issue before the Board was whether or not
the severance of an employee from the pay roll amounted to a dis-
criminatory discharge. Operations in the respondent's plant had
been crippled by a strike of production employees over certain de-
mands which it was not an unfair labor practice to refuse to grant.
The employee in question reported for work while the strike was in
progress, not being a member of either the union or the bargaining
unit involved in the strike. Nevertheless, this employee refused to
perform certain additional duties necessary to the completion of
various unfilled orders which the Company was attempting to com-
plete, but instead insisted upon performing. only her customary rou-
tine. A majority of the Board held that under the circumstances
the employer was privileged, as an incident of an employer's right
to repla _ e economic strikers, to give this employee an election either
to work as instructed or to quit the premises.
GARDNER-DENVER COMPANY, 85
There is nothing in the Act which forbids an employer to carry
on his business during the pendency of a strike not occasioned by un-
fair labor practices. On the contrary, the Supreme Court has held
that "where there has been no unfair labor practice and yet a cessa-
tion of work occurs, the employer is free to replace the employee or
employees refusing to work." 3 Clearly it would render this right
nugatory if employees could decide for themselves what work they
wished to do while a strike was in progress and'yet remain in a pay _
status. It appeared to us that this was the, very thing which the
complaining employee in the Pinaud case sought to do. So viewed,
we felt the Pinaud case did not establish a discriminatory discharge
in violation of the Act.
In the instant case, Johnson refused to perform the work of a
fellow employee who had quit because of a dispute over the piece-woak
rate for the operation. Johnson attributed as her reason for the re-
fusal that as a member of the Union she had pledged herself not to
perform this work until the dispute had been adjusted. By refusing,
to obey the respondent's direction, Johnson assumed a position anal-
ogous to that of employees who go on strike over issues unrelated to
unfair labor practices. In such cases, as we have found, an employer
has the right to require the employee to perform the work assigned or
to leave the premises. Inasmuch as Johnson elected the latter course,'
the respondent was privileged to replace-her. Thus, the two cases are
not legally distinguishable. Had Johnson not applied for reinstate-
ment on the respondent's own terms, no discrimination would have
occurred at all. However, since the respondent had not replaced her
at the time of her abandonment of the strike, it had a duty, under
Section 7 of the Act, to reinstate her upon such application. Its refusal
to do so was accordingly discriminatory.
Separate Opin ion Of CHAIRMAN HARRY A. MILLIs :
I concur in the result reached by my colleagues in this case. Noth-
ing in this concurrence, however, should be deemed as a recession from
my dissenting position in the Pinaud case, for I consider the cases
quite distinguishable. In the Pinaud case the extreme penalty of
discharge was invoked against an employee who refused to participate
in her employer's attempt to discourage concerted activity of his
employees. In effect the employee there declined to relinquish a
position of neutrality as between the strikers and the employer; her
discharge, which was final, called for the usual remedy which we
apply in such cases. In the instant case Johnson placed herself on
strike to strengthen the Union committee's position in its negotiations
over the reinstatement of Body. In so doing she became liable to be
8 N. L. R. B. v. Mackay Radio d Telegraph Co, 304 U. S. 333.
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replaced; no replacement was made and hence her application for
reinstatement, under well-known principles, should have been honored
by the respondent.
INTERMEDIATE REPORT
Mr. John A. Weiss, for the Board.
Mr. Robert G. Bosworth, of Denver, Colo., for the respondent.
Mr. John C. Monarch, of Denver Colo., for the Union.
STATEMENT OF THE CASE
Upon a charge filed August 16, 1943, by United Steelworkers of America, Local
Union No. 3029, herein called the Union, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Seventeenth Region
(Kansas City, Missouri) issued its complaint dated February 19, 1944, against
Gardner-Denver Company, herein called the respondent, alleging that the re-
spondent at its plant in the City of Denver, State of Colorado, had engaged in
and was engaging in unfair labor practices affecting commerce within the mean-
ing 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 ac-
companied by notice of hearing thereon were duly served upon the respondent and
the Union.
In respect to the unfair labor practices, the complaint, as amended at the
hearing, alleged in substance that on or about August 11, 1943, the respondent
discharged one Irene Johnson and thereafter failed and refused to reinstate her
because she assisted the Union and engaged in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection in that Johnson
refused to perform the work of Hilda Body, another employee, who was "off the
job at the time as the result of a current labor dispute, and that by such con-
duct the respondent engaged in and was engaging in unfair labor practices,
within the meaning of Section 8 (1) and (3) of the Act.
The respondent's answer, dated February 25, 1944, admitted the discharge and
refusal to reinstate said Irene Johnson, but denied that such discharge and
refusal to reinstate was for the cause alleged in the complaint and denied the
commission of any unfair labor practices.
Pursuant to notice, a hearing was held on March 3, 1944, at Denver, Colorado,
before the undersigned Trial Examiner, duly designated by the Chief Trial
Examiner. The Board and the respondent, were represented by counsel. The
Union appeared by its official representative. Full opportunity was afforded all
parties to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues. Counsel for the Board and respondent argued
orally at the close of the hearing. The respondent alone filed a brief.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Gardner-Denver Company is a Delaware corporation engaged in business at
Quincy, Illinois, La Grange, Missouri, and Denver, Colorado. At its plant in
Denver, the only one here involved, the respondent is normally engaged in the
manufacture and sale of mechanical equipment, including loaders, hoists, tie
tampers, concrete or paving breakers, rock drills, drill sharpeners, line oilers,
GARDNER-DENVER COMPANY 87
drill steel and wagon rigs. Since the beginning of the present war emergency
it has been engaged in manufacturing various airplane parts and accessories and
minor airplane assemblies.
During the year 1942, the respondent purchased, in the conduct of its business,
materials of a value in excess of $1,000,000 and manufactured and processed such
materials into finished products. Approximately 75 percent of the materials so
purchased was procured from points outside the State of Colorado and was
imported to its place of business there. Approximately 96 percent of its finished
products was sold and shipped to points outside the State of Colorado. The
respondent's business in relation to interstate commerce for the year 1943 was
proportionate to its 1942 business. The respondent did not contest the jurisdiction
of the Board.
II. THE ORGANIZATION INVOLVED
The United Steelworkers of America, Local Union No. 3029, affiliated with the
Congress of Industrial Organizations, is a labor organization admitting to mem-
bership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The discharge op Irene Johnson'
1. The developments prior to Johnson 's discharge
The Union started organizing at the plant in May 1943 . On July 9, 1943, it
petitioned for an investigation and certification of representatives
.2 In August
1943, there was in the plant a unit of the Drill Department known as G . C. C., in
which there were about 8 employees on the day shift. Four of these employees
were working on one part which was being made under contract for the General
Controls Corporation ; the others were working on another part. Each of the
first four employees performed a separate operation on the same part. Employee
Hilda Body, one of the four, was performing an operation known as Operation
13; Irene Johnson performed Operation 10; Mildred Eble performed Operation
3; and Margaret Granstrom performed the other operation . All were union
members ; Body was a steward and wore a steward ' s button. Johnson wore a
union button on the lapel of her uniform.
On August 10, 1943, Leadman Louis Ambrose told Body, who was on a base
pay plus bonus determined by piece work , that her job price was to be cut 22
cents S Body replied that she would quit rather than take the cut. Ambrose
told her to see Edward McMahon, foreman of the Mill and Drill Departments.
She later went to McMahon and told him that she would quit if the price were
cut, and McMahon replied, "All , right." Body finished the day. When she left
the plant she met John C. Monarch , the Union ' s representative , and told him
that she had quit. He expressed disapproval and told her to be at the union
meeting that night.
A regular union meeting was held that night, and among others present were
the four named employees of the G. C. C. unit. The matter of Body's wage
1 Also identified in the record as Hilda I. Johnson.
2 An election was held on November 2, 1943, the Union was certified by the Board on
November 12, 1943, and a contract was signed on February 11, 1944.
No charge was made that this cut was an unfair labor practice. Testimony was given
to explain that the cut was made in fixing a permanent price as a result of a time study
after the operation had been performed under a calculated or temporary price , and that
such cuts were not unusual in such instances . This cut was intended to take effect when
the order that was on the machine was completed, but Body was not informed when it
was to take effect. Rates on the other operations had been cut a few days before.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cut and her quitting were discussed, and, as a result, it was agreed that Body
should return to the plant the following morning and go to her machine as if
nothing had happened, and that if she were approached by the foreman she was
to state that, upon advice of the Union and as an assistance to the war effort,
she had reconsidered and was willing to go back to work under protest on the
threatened rate cut. At the same meeting a committee of union members was
designated to look into the Body matter and try to settle the dispute. This
committee was composed of employees Fred Scram, president of the local union,
who was named chairman of the committee; Boyd Wilson, a shop steward, Floyd
Cunningham, and Body. It was also agreed by the union members that they
"would stick with" Body and "back her up." The testimony was not clear as
to the purpose of the committee, that is, whether they merely intended to get
Body back on the pay roll or whether the rate reduction was the subject for
the committee action. From all the evidence, the undersigned infers that the
committee intended to take up the subject of the rate cut either as part of the
effort to have Body rehired, or if she were rehired, as a separate grievance.
On August 11, 1943, Body appeared at her machine in the plant, dressed in
her regular uniform, ready for work at the starting time At 7 a. in., starting
time, Foreman McMahon approached Body, who told him that the Union had
asked her to return to work. McMahon told Body that she could not work,
whereupon she went downstairs to wait for'the aforementioned committee to
meet with management. Boyd Wilson notified Committee Chairman Scram that
Foreman McMahon had refused to put Body back to work. The committee
then sought to talk with McMahon, who told them he would see them later.
Scram, Wilson, and Cunningham then went to see Assistant Superintendent Carl
Lucking and told him they were appointed as a committee by the Local Union
to talk about the "affair of Mrs. Body." Lucking told them they would have
to see Superintendent Carl Anderson. Body joined the other committee mem-
bers and they went to Anderson's office. Assistant Secretary Ivan S. Carpenter,
who has charge of personnel management at the plant, followed them into
Anderson's room. Scram told Carpenter that they were a committee appointed
by the union membership to try to settle this dispute, to get a readjustment
of the wage rate.' Carpenter, being under the impression- that dealing with
a committee from the Union, even about one of its own members, before it
had been recognized as the bargaining representative would amount to recogni-
tion, and, fearing the consequences of a hasty recognition in view of the fact
that another union was apparently attempting to organize the plant,` refused to
talk to the committee. Scram made the suggestion that they talk the matter
over "as man to man or employee to employer," but Carpenter still refused.'
As an alternative, however, Carpenter suggested that they form a committee
composed of both union and non-union members from the department. Scram
testified that he replied, "How are you going to find those non-union members,
4 This finding is based in part on testimony of Wilson and in part on testimony of
Carpenter . This credited testimony was more specific than Scram 's testimony that he
repeated to Carpenter what he had told Lucking, and the undersigned believes that it
more accurately reflects the facts.
6 The evidence shows such activity on the part of the International Association or
Machinists.
6 Carpenter testified that in spite of this suggestion he still regarded the committee as
representatives of the Union because they were officers and stewards of the Union and
that if they had been merely members and had not made the statement that the Union
had requested them to come, he would have talked to them. His refusal to talk to the
committee was not alleged in the complaint to be an unfair labor practice nor was it so
contended by Board counsel in his oral argument. No resolution of minor conflicts in
testimony is necessary , therefore.
GARDNER-DENVER COMPANY 89
when, in fact, there wasn't any in the department?" Carpenter denied that
anyone informed him that there were no non-union employees in the department
and could not recall whether or not Scram asked the first part of the quoted
question. The committee then retired and Body left the plant'
2. The circumstances of Johnson's discharge
On the morning of August 11, 1943, Foreman McMahon discussed with Lead-
man Louis Ambrose,' the question of who should take over Operation 13, Body's
former operation McMahon had Ambrose discuss the matter with the three
remaining women in the unit, Eble, Grandstroin, and Johnson. Ambrose asked
them which one of them was going to take over Body's operation. Johnson
spoke up and said that she "had made an oath in . . . [her] union that Hilda
Body was off work on the dispute of the cut, and ... [she, Johnson] refused
to take" that operation. Grandstrom likewise said that she would not take it.
Shortly after this, Johnson observed the, committee, which had gone to take up
the Body matter with management, return, and Body go to the locker room.
Johnson then spoke with Wilson, one of the shop stewards, to learn the result
of the meeting. He told her they were unsuccessful. Johnson told Wilson she
would probably be asked to take Operation 13, and Wilson advised her to find
out what the attitude of the rest of the girls in that unit was. The three
women waited for a time to see if Body would return, and when she did not,
they discussed the matter and, according to Johnson's testimony, " . . . we
discussed , that we would not take the operation, that we didn't want to cause
any disturbance or cause a strike of any sort; but we three would agree not
to take the operation as long as it was under dispute, and that Hilda [Body]
wasn't the reason for it." Meanwhile Ambrose had returned to consult with
McMahon and informed him that Operation 10 was ahead of schedule whereas
Operation 13 was running behind o McMahon then directed Ambrose to tell
Johnson, who was on Operation 10, to take Operation 13. Ambrose returned
and told Johnson that McMahon said she was to take Operation 13. Johnson
told Ambrose that she refused to cko so,. and Ambrose told her to tell McMahon.
Johnson went to McMahon and told him that she could not take that operation
because they had taken an oath or pledge to the Union not to take a job that
was under dispute on a wage cut. McMahon told Johnson that she should not
feel that way about it because he just wanted her to take the job for a few
days until another employee, a Mrs. Stackhouse, who was on leave at the time,
returned the first of the following week. Johnson said she. still refused to
take the operation. McMahon replied that she did not have to stay on the
operation if she would just take it for a few days, but Johnson said, "No, I
wouldn't violate the pledge that I made . . . " McMahon then told her to return
to her own job and think the matter over and he would talk to her again.
Johnson returned to her own work, and McMahon reported the matter'to As-
sistant Superintendent Lucking, repeating to him what Johnson had told him.
Lucking told McMahon that, if Johnson continued to refuse, "it would amount
to a dismissal." McMahon sent for Johnson and asked her if she had recon-
sidered. She replied that she still refused to take the operation. McMahon
explained that Johnson's operation was ahead of the rest and that he did not
feel that it was an injustice to ask her to take Operation 13. Johnson said
About 10 days later, Body made application for reemployment and was rehired.
s Ambrose was in military service and did not testify. He admittedly had supervisory
status
8 Operation 13 was more difficult than most of the operations in the G C C. unit, and
mechanical difficulties were being encountered which tended to keep it behind schedule.
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she was pledged not to take it and that she still refused, and asked if he
wanted her to lay off. McMahon told Johnson, according to her uncontradicted
testimony , that she would "be justified in laying off ." Thereafter McMahon
made out a termination slip for Johnson . 10 On this slip , the reason for termina-
tion was stated , "Refused to run operation assigned "
When Johnson had left, Ambrose apparently asked Eble to take Operation 13,"
because she went to McMahon to talk to him about it. According to McMahon,
Eble appeared reluctant to take the operation, but he succeeded in getting her
to take it for the remainder of the week
At 7 a. in. the next day, August 12, 1943, Johnson, after consulting the union
representative, returned to the plant and spoke to McMahon. He asked her if
she would like to work. S'be told him that she was willing to go back to work
and that should would take any job he had, but that it would be under protest.
McMahon answered that her termination had gone in at noon. the day before and
that he could not do anything about it, but that if she cared to wait until 8 a. in.,
when Mr. Lucking would arrive, he would see him. Johnson did not wait,
however. That afternoon she returned for her pay but did not at that time
ask for reemployment.
On August 13, Johnson again returned, saw Lucking, and told him that she was
there upon the advice of the Union and that she was "willing to work, that there
was a war, in the aid of the war effort.... [she] wanted to work, but that .. .
[she] would still be working with them under protest on Hilda Body not being
-there." Lucking replied that he could not do anything about it, but that they
would see Mr. Carpenter. They went to Carpenter's office. While Johnson was
saying that she wanted to go back to work but that it would still be under "protest
in the dispute on the cut," Carpenter interrupted and said, "Do you know your
walking off the job was an act of sabotage?" 12 When Johnson made no reply to
this, Carpenter told her she could see Mr. George 12 and tell him she was available
for reemployment. Johnson went to George's office and told him, according to her
testimony , that Mr. Carpenter said she "was available to be rehired ." George
testified that he had no recollection of such a statement by Johnson, although
it might have been made ; that he could remember seeing Johnson only once
during that period and that was when she checked out on August 12; that at
no time after her dismissal did, Mrs. Johnson ask him for reemployment ; that,
if such a statement about being available to be rehired had been made, he
would have considered it "idle talk" rather than an application for reemployment ;
that he would not have made any memorandum of it if such a statement had
been made but would have just kept it in his head until someone might be
needed ; and that he would not have rehired Johnson in any event in view of the
negative recommendation by the foreman as hereinbelow set out. The under-
signed credits Johnson's testimony that she told George that Carpenter said she
was available for reemployment . After leaving George, Johnson went to speak
to McMahon , in his office , but, according to Johnson , "he walked out."
I
10 It was stipulated that McMahon had authority to hire and fire. In the matter of
hiring, however , it was explained that his part was limited to approval of the applicants
after they had been interviewed by the Employment Manager who had procured someone
as the result of the foreman's requisition.
" Mildred Eble was sick on the day of the hearing and did not testify As previously
stated, Ambrose was in military service and was not available to testify.
12 This finding is based on Johnson's testimony , which the undersigned credits. Car-
penter testified that Mrs . Johnson merely asked for reemployment but said nothing about
its being under protest In view of his interruption it is likely that Carpenter heard just
the first part of her statement.
13 Raymond A . George , employment manager at the plant.
GARDNER-DENVER COMPANY 91
B. Concluding findings
The respondent adduced evidence to show that Johnson's case was dealt with
as an ordinary case of insubordination and that the respondent, in dealing with
it, was not aware of any union activity or other concerted activity connected
therewith. However, the undersigned is convinced from events above related,
that the respondent was well aware of the fact that Johnson's conduct was a
result of the Body dispute on which the union committee had sought to confer
with the respondent. Lucking, whom McMahon consulted before he made out
Johnson's termination slip, was one of those present when the committee sought
to discuss the rate cut on Body's operation. Lucking, George, and McMahon
had been the customary ones to deal with employee grievances before the ap-
pearance of the Union. Had the case been regarded by the respondent as a mere
case of insubordination, the undersigned believes that the matter would never
have been brought before Anderson and Carpenter and that Essig would not
have been consulted 14 McMahon knew that Body was a union member and the
undersigned believes and finds that McMahon knew that Johnson's refusal to
take Body's operation was an integral part of the Union's activity in regard
to the current labor dispute.
The testimony on behalf of the respondent raised the contention that Johnson
had not made an application for reemployment because she had not in so many
words stated to George, the employment manager, that she was applying for re-
employment. The undersigned regards Johnson's statement to George, that
Carpenter, the personnel manager and assistant secretary, had said to tell him
that she was available to be rehired, as a sufficient application if an application to
George were necessary. Furthermore, the undersigned is unable to believe the
testimony to the effect that Carpenter and the other officials had no control
over George's discretion in the matter of reemployment, and it is therefore
found that the application which Johnson clearly made to Lucking and Car-
penter was sufficient. In any event the respondent in its answer admitted that
it refused to reinstate Johnson and in its brief took the position that, if Johnson
had applied, it would have refused to reemploy her as a matter of policy.
The respondent's principal contention is that it had a policy of long standing
never to rehire anyone who had been discharged for refusal to do assigned
work. A day or two after the termination of the employment of Body and John-
son, McMahon filled in forms of information for the employment file. On the
statement for Johnson's file, after data on the period of employment and type
of work, appeared the following: "Why was he terminateRefused to run
operation assigned. Ability-Excellent." Remarks-Was a4 steady reliable
worker. Would you rehire in your dept?-No." 19 McMahon testified that
his only reason for answering the final questions in the negative on Johnson's
record was because of the foregoing policy not to rehire employees discharged for
refusal to do assigned work. The respondent's record indicated that, of 106 dis-
charges during the past 3 years, 9 employees other than Johnson had been dis-
charged for refusal to do•assigned work and that none of the 9 had been re-
employed. The test of the existence of such a policy would be by its applica-
tion to cases where employees, discharged for refusal to do assigned work,
14 Carpenter testified that prior to the time when any union was active in the plant,
grievances between employees and the respondent were handled by Lucking, George, and
the foreman . Essig testified that when the Johnson case came up , he was consulted by his
subordinates and was asked , "Should we take Mrs. Johnson back?"
15 This was the highest rating given.
19 On Body's employment file form these respective questions were answered : Why was
he terminated-Quit ; Ability-Fair ; Remarks-Was not satisfied with price on job ,
Would you rehire in your dept Yes.
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had asked reemployment and had been denied it. The evidence did not satis-
factorily disclose whether anyone so discharged had actually applied for
reemployment"
However, even if it be conceded that the policy existed, the question remains
whether such a policy may properly be applied to a case where the refusal to do
assigned work is the result of concerted employee activity. Where employees
go on a strike, which, in effect, is a refusal to do assigned work, the employer
has no right to discharge its employees simply because they refused to work.18
While Johnson's conduct was not a strike in the ordinarily accepted sense of the
term, her refusal to do the work assigned to her was not a matter of individual
insubordination but was a phase of the current labor dispute concerning terms
and conditions applicable to that particular job. Accordingly, the respondent,
being aware of that`fact, as has heretofore been found, had no right to discharge
Johnson.19 In view of the fact that Johnson's operation was ahead of schedule
and that she would not perform the operation that was behind schedule, the
respondent would have been warranted in laying Johnson off until she was willing
to do such work as was assigned to her.20
The undersigned is convinced that the respondent's officials, in deciding to
discharge Johnson, were not consciously violating the Act. Further, the evi-
dence indicates that the respondent's policy is to comply with the provisions of
the Act n But the respondent's ignorance of the law or lack of intent to violate
the Act constitutes no defense.22 Where, as in Johnson's case, an employee's
conduct which is the alleged ground for discharge is, to the employer's knowledge,
a part of lawful concerted activity and not ordinary insubordination, the dis-
charge of such employee necessarily interferes with and discourages concerted
activity, which the Act is designed to protect.
When Johnson returned on August 13, 1943, applied for work, and announced
her willingness to do any work assigned to her, the respondent was under obliga-
tion to give her employment if it was available. The vacancy left by Body's
resignation was not permanently filled until August 16 Eble took Operation 13
from August 11 to 14. Therefore Johnson's and Eble's operations were both
idle for that period. On about August 16, Stackhouse, who had been on leave, and
one Carrabella, who had been performing Operation 13 on the night shift, filed
14 Essig testified that the respondent had never taken back any such discharged employee
who had asked reemployment , although he did not have in mind any specific case of rejec-
tion of such an application . George gave similar testimony , but mentioned no case where
an application for reemployment had been made by such a person.
18 N. L. R. B v . Mackay Radio if Telegraph Co., 304 U. S. 333
1° Matter of'The Niles Fire Brick Company, 30 N L R. B 426, enforced in 128 F (2d)
258; Matter of Mt Clemens Pottery Company and S. S Kresge Company, 46 N. L. R. B.,
714; Matter of Pinaud, Inc., 51 N. L. it . B 235; Matter of United Biscuit Company of
America, 38 N L. it. B. 778 , enf'd as modified 128 F. ( 2d) 771 ; Matter of Harnischfeger
Corporation, 9 N L. it. B. 676.
20 Mt Clmens Pottery and P2naud cases, supra.
21 The respondent introduced in evidence a written statement which had been read by
Essig at a regular foreman ' s meeting on June 26, 1943 , because of the existence of union
activity This statement explained the legal right of employees to "self -organization ;
forming, joining , or assisting labor organizations , and concerted activity for the purpose of
collective bargaining," explained that "interference with those rights by the Company
is a violation of the law," and instructed the foremen how to conduct themselves. The
total absence of any evidence of any anti -union statements or other independent 8 (1)
conduct indicates that the foremen obeyed these instructions
22 N. L it. B. v. Thompson Products , 130 F. ( 2d) 363, enf'g as modified 33 N. L. R. B.
1033 ; N L. R B v. Burry Biscuit Corp ., 123 F. ( 2d) 540 ; N. L. it. B. v. Hudson Motor Car
Co, 128 F. ( 2d) 528.
23 In fact it did have such effect , because Eble , who had been a party to the agreement
not to take Operation 13, did, after Johnson's discharge , reluctantly take it.
GARDNER-DENVER COMPANY 93
the Body and Johnson vacancies, Eble returning to her own operation. Since
Stackhouse and Carrabella were old employees, their positions, in turn, would
have to be filled. Hence, it is clear that from August 13, the date of Johnson's
unqualified application for work, to August 16, 1943, at least, there was avail-
able employment. Therefore, the undersigned concludes and finds that, by dis-
charging Irene Johnson on August 11, 1943, and by refusing her reemployment
thereafter, the respondent discriminated against her because of her concerted
activity for the purposes of collective bargaining, and other mutual aid and pro-
tection, within the meaning of Section 8 (3) of the Act. By discharging and
refusing to reinstate Johnson for the aforesSid reason, the respondent has inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7, and thereby engaged in unfair labor practices within
the meaning of Section 8 (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRAOTICM 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
Since it has been found that the respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent, by discharging and by refusing to rein-
state Irene Johnson, discriminated in regard to her hire and tenure of employ-
ment. Had the respondent merely suspended Irene Johnson on August 11, 1943,
as it had a lawful right to do, it would have been obliged to reinstate her on
August 13, 1943, on the date of her application and offer to perform any work
assigned her. Under the circumstances, the undersigned believes that to effec-
tuate the policies of the Act Irene Johnson should be restored to the position she
would have been in had the respondent acted lawfully.
At the time of the hearing there was only one employee in the G. C. C. unit
because the work under the contract for the General Controls Corporation was
just about completed. No evidence was offered, however, to show that those
who had been in the G. C. C. unit had been laid off for lack of work nor even
that those machines were idle.24 On the other hand Board's counsel did not
offer proof that Johnson was capable of other types of work. However, from
the fact that McMahon considered Johnson capable of performing Operation 13,
which was different from Johnson's operation, the undersigned infers that John-
son would be capable to adapting herself to other drilling work. The G. C. C.
was a part of the Drilling Department and not a separate department, and there
was no evidence that the number of employees in the drilling department had
been reduced. It will be recommended, therefore, that the respondent offer to
Irene Johnson immediate and full reinstatement to her former or substantially
equivalent position, without prejudice to her seniority or other rights and
privileges, and make her whole for any loss she may have suffered by such unlaw-
ful discharge, by payment to her of a sum of money equal to the amount which
she normally would have earned as wages from August 13, 1943, to the date of
24 Asked if there was not just one person in that department now, McMahon replied,
"Yes, sir ; working on that type of work."
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent's offer of 'reinstatement, less her net earnings 2G during such
period 2e
Upon the foregoing findings of fact, and upon the entire record in the case, the
undersigned makes the following :
CONCLUSIONS OF LAW
1. The United Steelworkers of America, Local Union No. 3029, is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to, the hire and tenure of employment of Irene
Johnson, the respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (3) of the Act.
3 By interfering with, restraining , and coercing its employees in the exercise
cf the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
4 The aforesaid unfair labor practices are unfair labor practices -affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Gardner-Denver Company, Den-
ver, Colorado, its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discharging , refusing to reinstate , or in any other manner discriminating
ir. regard to the hire and tenure of employment of its employees because they
engaged in concerted activities or other mutual aid or protection and thereby
discouraging membership in a labor organization ; --
(b) In any manner interfering with, restraining, or coercing its employees in
the exercise of the right to self-organization, to form, join, or assist labor organ-
izations, 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 effec-
tuate the policies of the Act.
(a) Olter Irene Johnson immediate and full reinstatement to her former or
substantially equivalent position without prejudice to her seniority or other
rights and privileges;
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 else-
wwhere 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 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. 1
2e A question is raised as to whether Johnson exerted sufficient effort in seeking reem-
ployment following her discharge in view of the fact that she filed no application with the
United States Employment Service, although she did "inquire several places ," and 'she
did secure other employment on November 17, 1943. The undersigned believes that the
failure to file application with the United States Employment Service does not, in itself,
indicate willful incurrence of loss so long as other efforts to find employment were made,
as was the case here. The facts in the instant matter are distinguishable from Ohio
Public Service Company, 52 N. L. R. B. 725.
GARDNER-DENVER COMPANY 95
(b) Make whole said Irene Johnson for any loss she may have suffered by
reason of the respondent's discrimination against her, in the manner set forth in
the Section entitled, "The remedy" above, less her net earnings Z' during said
period ;
(c) Post immediately in conspicuous places in its plant and maintain for a
period of sixty (60) consecutive days, notices to its employees stating: (1) that
the respondent will not engage in the conduct from which it is recommended that
it cease and desist in paragraphs 1 (a) and (b) hereof; (2) that the respondent
will take the affirmative action set forth in paragraphs 2 (a) and (b) hereof,
and (3) that the respondent's employees are free to become or remain members
of United Steelworkers of America, Local 3029, affiliated with the Congress of
Industrial Organizations, or any other labor organization of their own choosing,
or to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and that respondent will not discriminate against
any employee because of membership in or activity on behalf of such organiza-
tion, or because he engaged in concerted activity for the purpose of collective
bargaining or other mutual aid or protection;
(d) Notify the Regional Director for the Seventeenth Region in writing within
ten (10) days from the date of the receipt of This Intermediate Report what steps
the respondent has taken to comply therewith;
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring respondent 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 to 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 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 objections) 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 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 ten (10)
days from the date of the order transferring the case to the Board.
JAMES R. HEMINGWAY,
Trial Examiner.
Dated May 4, 1944.
21 See footnote 25, supra.