Illinois Tool Works

National Labor Relations Board - Board Decisions

May 12, 1945

61 N.L.R.B. 1129 (N.L.R.B. 1945)

In the Matter Of ILLINOIS TOOL WORKS and AMALGAMATED MACHINE,
TOOL & DIE LOCAL 1114-UNITED ELECTRICAL, RADIO & MACHINE
WORKERS OF AMERICA, C. I. O.
Case No. 13-C-21417.-Decided May 12, 194.5
DECISION
AND
ORDER
On July 3, 1944, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent had
engaged in, and was engaging in, certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in a copy of the Intermediate Report
attached hereto. Thereafter, the respondent and counsel for the
Board filed exceptions to the Intermediate Report and brief in support
of their exceptions.
The Board has reviewed the rulings on motions and bn objections
to the admission of evidence made by the Trial Examiner at the hear-
ing, and finds that no prejudicial error was committed. The rulings
are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, except insofar
as they are inconsistent with our findings and order hereinafter set
forth.
1. We agree with the Trial Examiner's conclusion that the respond-
ent engaged in unfair labor practices within the meaning of Section
8 (1) of the Act. We base our finding to this effect upon the re-
spondent's following acts and statements, as well as its unlawful lay
off of employee McKenna, as found by the Trial Examiner, in which
finding we concur, and its discriminatory discharge of employee
Marsich, as found below :
(a) In March 1943, Superintendent, Wicks asked employee Wa-
^singer if he had attended a certain union meeting and how many men
had "signed up" at that meeting. In April 1943, General Foreman
Biemeck asked six employees if they had signed union cards and also
asked one of them if he thought "it would do [him] any good";
61N L . R. B, No. 188.
1129
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Assistant Foreman Rowe told employee Johnson that he was not to
"talk Union" at the plant;"' Manager Irwin told employee Marsich
that if statements in union bulletins were "to cause any trouble to
too many workers, he would fire more union men"; and Manager
Irwin told employee McKenna, without any further explanation, that
he (Irwin) could "not meet with any person to represent another"
and "would meet only with individuals in connection with their own
grievances." 2
(b) The respondent inaugurated a rule against solicitation which
was unduly restrictive of legitimate union activities.3 In its notice
to employees of March 5, 1943, the respondent prohibited, without
limitation as to time, "collections of any sort" in "any of the shop or
office departments," except for certain purposes. Collections for a
union are not among the stated exceptions. This notice, reasonably
construed, would prohibit union dues collections, for example, on the
respondent's premises during non-working hours. In its booklet to
the employees of May 14, 1943, the respondent prohibited, under the
penalty of discharge, and without limitation as to time, "solicitation
of any kind or the circulation of petitions" without the express per-
mission of the respondent's personnel manager. Also, the record
discloses that prior to February 1944, some of the respondent's super-
visors plainly advised employees that there was a rule against union
solicitation during non-working hours,4 while other supervisors, in
discussion with employees concerning the rule, did not make it clear
that they could solicit during non-working hours.5 While General
' The record discloses , and we find, that union discussion , as distinguished from solicita-
tion as such , was not prohibited by the respondent ' s rules, and, further, that discussions
by employees, during working hours, on other matters unrelated to their work , were not
prohibited by the respondent
' The latter finding is based upon McKenna's testimony , which we credit.
' There is no showing that the rule prohibiting union solicitation during non -working
hours was necessary in order to maintain production or preserve discipline at the plant.
Matter of Republic Aviation Corporation , 51 N. L. R. B. 1186 , and Matter of Le Tourneau
Company of Georgia, 54 N. L. R. B 1253 , enf'd , Republic Aviation Corporation v. N L
R B., N L R B. v. Le Tourneau Company of Georgia , 65 S Ct 982,
' Thus, in the fall of 1942 , after the distribution of the first leaflet by the Union, Gen-
eral Foreman Mulder told employees Friedman and Marsich that there was to be no union
solicitation at any time . Also , according to the testimony of employee Martin, which we
credit, as did the Trial Examiner, Mulder , on January 8, 1943 , warned Martin that any
solicitation on company property, even during non-working hours, called for instant
dismissal.
i Thus, there were the discussions between employee McKenna and Manager Irwin around
May 1 , 1943, and between McKenna and General Foreman Mulder shortly after May 6,
1943, which are set forth in full in the Intermediate Report . Also , according to the uncon-
tradicted testimony of employee Johnson, which we credit , Assistant Foreman Rowe, in
April 1943, told Johnson that "there would be no soliciting" without limiting the prohibi-
tion to working time
we also note that in its letter to the employees of April 23 , 1943, the respondent pro-
hibited " the solicitation of union memberships on the company premises and during work-
ing hours" [ emphasis supplied ] We also note that, according to the uncontradicted testi-
mony of employee Kalter , which we credit , General Foreman Kuhr , in the fall of 1942, told
Kalter, employee Kamysz, and another unidentified employee , that they were not to solicit
on company premises and company time, The record discloses that , in view of the Inclu-
ILLINOIS TOOL WORKS 1131
Foreman Mulder, in February 1944, told employee McKenna that the
rule did not restrict solicitation during non-working hours, no gen-
eral announcement of such interpretation was made to the employees.
We find that the foregoing statements and acts of the respondent,
as well as its unlawful lay-off of McKenna, and its discriminatory
discharge of Marsich as found below, were integral parts of a course
of conduct by the respondent which interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.6
2. We do not agree with the Trial Examiner's conclusion that
Marsich was discharged on April 30, 1943, because he solicited for
the Union during working hours, and not because of his union mem-
bership and legitimate upon activities. The Trial Examiner's con-
clusion is predicated upon the fact that, as disclosed by the record,
the respondent, on the day of the discharge, was advised by employee
Kraus that Marsich had been "after him" that morning to join the
Union and that "that is the third or fourth time that has happened,"
coupled with the fact that in November 1942 Marsich had been warned
by the respondent against soliciting on its premises at any time and
told that he would be discharged if "caught again."'
However, while the information given the respondent by Kraus
was to the effect that Marsich, on the occasion in question which pre-
cipitated the discharge," had actually solicited him to join the Union,
there is at least some question as to whether Marsich had, on that
occasion, in fact violated the respondent's no-solicitation rule. Ac-
Sion of the word "and," at least some of the employees were uncertain as to whether union
solicitation at the plant during non -working hours was exempted from these general
prohibitions t
6 The Trial Examiner found that the respondent ' s letter of April, 23, 1943, to the em-
ployees was not violative of the Act, even when viewed in the light of the respondent's
other unfair labor practices We find it unnecessary to pass upon this question, particu-
larly since no exception to that finding has been taken by the Union or by counsel for the
Board. -
7 There is no showing that the respondent i% as apprised of the details of the alleged solici-
tation on the two or three prior occasions generally referred to by Kraus in his afore-
mentioned statement to the respondent , nor did the respondent question Marsich concern-
ing them. Marsich admitted at the hearing that he had solicited for the Union during
working hours for some period of time , but that he had ceased doing so 2 weeks prior to
his discharge. However, except for Kraus' afore -mentioned statement to the respondent
on the date of Marsjch ' s discharge , it is clear that the respondent had no knowledge of
Marsich's activities in that regard Even at the time, in November 1942, when Marsich
was warned by the respondent against soliciting on its premises at any time , there is no
showing that the respondent had definite knowledge that Marsich had been soliciting dur-
ing working hours Thus, General Foreman Mulder testified that, prior to that warning,
no one had told him that Marsich was soliciting for the Union , and that he merely
"assumed " that Marsich was doing so because he was observed "wandering around the
department." While the record discloses that, upon receiving the warning, Marsich ad-
mitted to Mulder that he had been soliciting , it is not clear that he admitted soliciting
during working hours
8 We note that when Mulder advised Marsich that he was being discharged because he
solicited union membership , Marsich inquired when "this was supposed to have taken
place," and that Mulder replied "today," obviously referring to the incident on the morning
of the discharge.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cording to Marsich's uncontradncted testimony, which we credit, he
merely asked Kraus "if lie signed a union card" and did not ask him
to join the Union." The record discloses, and we find, as did the Trial
Examiner, that Assistant General Foreman Fabish, on January 8,
1943, told employee Martin, in the presence of General Foreman Mul-
der, that it was not necessarily a violation of the respondent's rule
to ask an employee "Did you ever' join a Union," or "Do you think
you might join the Union [at] some future time," and that it is when
an employee is asked "Will you join the Union" that the rule is
violated.10 The record further indicates, and we find, that the con-
versation between Marsich and Kraus was initiated by the latter,
and that Marsich did not-stop working during the course of that con-
versation. It is contended, however, that regardless of what was
actually said by Marsich to Kraus, or the actual circumstances sur-
rounding their conversation, the respondent had the right to rely
upon the information given to it by Kraus as to what had occurred.
However, as the Trial Examiner himself recognizes, the respondent's
investigation of the incident was plainly unfair and incomplete, the
respondent having refused to listen to Marsich's version of what had
taken place.11 Had the respondent made a fair investigation of what
had occurred, it might have concluded that there was no real viola-
tion of the rule, or that, because of the other extenuating circum-
stances mentioned above, it would impose a lesser penalty or none at
all. 'In any event, the respondent's failure to conduct a fair investi-
gation, viewed in the light of its attempt to prohibit all solicitation
for the Union at the plant, even during non-working hours, as well
as its general antipathy to the Union, as found above, evidences the
respondent's eagerness to rid itself of an outstanding union adherent
and indicates that the real motive for the discharge of Marsich was
the respondent's anti-union animus.72
That Marsich's discharge was motivated by the fact that he was
an outstanding union adherent is further evidenced by the explana-
tion given by Manager Irwin for the disparity of treatment between
Marsich, who was given the extreme penalty of discharge for his
alleged act of solicitation, and employee Kamysz, who was merely
° Employee Herman, who worked near Marsich's machine, and who overheard the conver-
sation, testified that Marsich asked Klaus, "Did YOU loin the Union''' The record dis-
closes that Marsich did not offer Kraus an applicati(vi card
0 Upon the entire record, we credit Martin's veision of what was said to bun by Fabish
and Mulder on January 8, 1943.
"Nor , as already indicated , did the respondent question Marsich as to his alleged solici-
tation of Kraus on the two or three prior occasions generally referred to by Kraus in his
aforementioned statement to the respondent on the day on which Marsich was discharged.
1' Cf Shell Oil Co. v N L R B, 128 F (2d) 206 (C C A 5) , American Smelting and
Refining Co v N L R It, 128 F (2d) 345 (C C A. 5) ; Matter of May Department Stores
Co , d/b/a Famous-Bair Co , 59'N L R B 976
0
ILLINOIS TOOL WORKS 1133
laid off for a few days for violating the no-solicitation rule.13
Irwin's explanation of the disparity of treatment was that "Marsich
was a bold type. He had a mind of his own and we knew it. We
would ask him to stay by his machine but it didn't make any differ-
ence. He just seemed to run himself rather than conduct himself
as we wished"; that in deciding upon the penalty to be imposed for
the infraction of a rule, the respondent takes into consideration "the
willingness [of an individual] to do what is right," and "if he is
willing to do what is right, why, we won't be as tough with him as
if we knew that he doesn't care"; and that the respondent could rely
on a promise by Kamysz to discontinue the objectionable conduct,
more so than it could on one by Marsich, because Kamysz "had been
quite a nice little fellow. In other words, when we asked him to do
something, why, he would usually do it but Marsich was more bold.
He would do it out in the open, you might say, and Kamysz would do
it on the sneak if he done it at all."
However, except for the occasion about 51/2 months prior to his
discharge, when Marsich was seen by the respondent "wandering
quite a bit around the department," the respondent adduced no cred-
ible or convincing evidence in support of the accusations made by
Irwin against Marsich that he refused "to stay by his machine" and
that he was insubordinate and obstinate, or that his conduct was
reprehensible in any other respect. Moreover, the record affirma-
tively establishes that Marsich had been in the respondent's employ
for at least 4 years, that his work was very satisfactory, that he had
an excellent production record and was one of the most skillful and
experienced employees in his department, and that, with one or two
exceptions, his average earnings exceeded those of the other em-
ployees in his department. The combination of the foregoing cir-
cumstances, coupled with Irwin's characterization of Marsich, which
is otherwise unexplained, as a' "bold type" who "would do it out in
the open" and who "had a mind of his own," as well as the record
as a whole, convinces us, and we find, that Irwin's dislike of Marsich,
which culminated in Marsich's discharge, was based upon the fact
23 That there was a real disparity of treatment between these two employees is further
evidenced by the facts that : (1) only one warning against solicitation was given to Mar-
sich, as compared Rith two or three such warnings given to Kamysz , (2) the warning to
Marsich was given 51/2 months prior to his discharge, while all of the warnings to Kamysz
were given within 1 month prior to his lay-off, and (3) there was a clear admission by
Kamysz to the respondent, immediately prior to his lay-off, that he had solicited during
working hours, while these was no such admission by Marsich at the time of his discharge
We note that Marsich's discharge occurred approximately 1 week after the respondent's
letter of April 23 to the employees, which stated that union solicitation on "company
premises and during working hours " would be ground for dismissal . However, the record
discloses that prior to Iiamysz's lay-off, the respondent had also warned employees that
they would be discharged for such activity.
639678-45-vol 61-73
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Marsich was one of the most outspoken and active union ad-
herents 14 at the plant 16
In view of all of the foregoing, and upon the entire record, we find
that the respondent discharged Marsich because of his union mem-
bership and legitimate union activities, in violation of Section 8 (3)
of the Act.
The Remedy
Marsich testified that on May 13, 1943, he secured new employment,
at which he was engaged at the time of the hearing, and that he did
not wish to be reinstated to his former employment with the respond-
ent. Accordingly, and consonant with our usual practice, we shall
not order such reinstatement, and we shall order back pay for the
period from the date of Marsich's discharge to the date on which he
secured his new employment.
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, Illinois Tool Works, Chi-
cago, Illinois, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Amalgamated Machine, Tool &
Die Local 1114-United Electrical, Radio & Machine Workers of
America, affiliated with the Congress of Industrial Organizations, or
in any other labor organization of its employees, by laying off, dis-
charging, or refusing to reinstate any of its employees, or in any other
manner discriminating in regard to their hire or tenure of employ-
ment, or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Amalgamated Machine,
Tool & Die Local 1114-United Electrical, Radio & Machine Workers
• of America, 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
^ is Among other things , Marsich was a member of the Union 's Organizing Committee and
a shop steward , of which the respondent had knowledge , and was also a member of the
Committee which, in April 1943 , requested to meet with the respondent to discuss the dis-
charge of a certain union member.
ii while Kamysz was also active on behalf of the Union and was also a member of- the
Union's organizing committee , it appears that Marsich was a more outstanding union pro-
tagonist and, being a much older employee , and having the type of personality described by
Irwin, as contrasted with Kamysz ' s more timid and docile personality , was apparently
regarded by the respondent as a much more dangerous union adherent than Kamysz. In
evaluating Irwin's aforementioned estimate of Kamysz , as contrasted with Marsich, it is
significant to note that Kamysz, upon his return to the plant following his lay-off, com-
pletely disassociated himself from the Union.
ILLINOIS TOOL WORKS 1135
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 the Board finds
will effectuate the policies of the Act :
(a) Rescind immediately its rule against solicitation insofar as
it prohibits union solicitation at its Chicago, Illinois, plant during
non-working hours;
(b) *Make whole Thomas McKenna for any loss of pay he may
have suffered by reason of the respondent's discrimination against
him, by payment to him of a sum of money equal to the amount which
he normally would have earned as wages from May 4, 1943, the date
on which he was laid off, to May 7, 1943, the date on which he was
reinstated, less his net earnings during such period;
(c) Make whole Victor Marsich for any loss of pay he may have
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to the amount which he
normally would have earned as wages from April 30, 1943, the date
of his discriminatory discharge, to May 13, 1943, the date on which
he secured his new employment, less his net earnings during such
period;
(d) Post at its plant at Chicago, Illinois, copies of the notice at-
tached hereto, marked "Appendix A." Copies of said notice, to be fur-
nished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, as amended, be, and it
hereby is, dismissed insofar as it alleges that the respondent's lay-off
of Adam Kamysz was violative of the Act.
NLRB 576
(9-1-44)
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 :
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Amalgamated Machine, Tool &
Die Local 1114-United Electrical, Radio & Machine Workers of
America, affiliated with the Congress of Industrial Organizations,
or any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection. All our employees are free to become or remain mem-
bers of this union, or any other labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
We will make the employees named below whole for any loss of pay
suffered as a result of the discrimination against them.
THOMAS MCKENNA.
VICTOR MARSICH.
We will rescind immediately our rule against solicitation insofar as
it prohibits union solicitation during non-working hours.
ILLINOIS TOOL WORKS,
By
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. Robert T. Drake, for the Board
Garner, Carton & Douglas, by Mr. Erwin W. Roemer, of Chicago, Ill. ; Messrs.
Jay Tomlin and Frank England, of Chicago, Ill , for the respondent.
Messrs Ernest DeMaio and Thomas McKenna, of Chicago, Ill , for the Union.
STATEMENT OF THE CASE
Upon a third amended charge, filed February 21, 1944, by Amalgamated
Machine, Tool & Die Local 1114-United Electrical, Radio. & Machine Workers
of America, affiliated with the Congress of Industrial Organizations, hereinafter
called the Union, the National Labor Relations Board, hereinafter called the
Board, by its Regional Director for the Thirteenth Region (Chicago, Illinois),
issued its amended complaint dated February 22, 1944, against Illinois Tool
Works, hereinafter called the respondent, alleging that the respondent had
engaged in and is 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.
In respect to the unfair labor practices, the complaint alleges in substance
that from about August 1942 to the date of the complaint the respondent warned
its employees not to solicit for unions on company property, warned them that
union activity would injure their status with the respondent in reference to
their relations with their Selective Service Board, questioned them regarding
their union affiliations, disparaged the Union , warned employees that union
ILLINOIS TOOL WORKS 1137
activities in other plants had resulted unsuccessfully for employees of such
plants, requested its employees to bargain concerning grievances individually,
advised its employees that complaints and grievances could be handled success-
fully on an individual basis, singled out individuals active in the Union to
warn them against solicitation for the Union, encouraged and requested the
employees to supply it with information concerning the activities of the Union ;
and on or about November 16, 1942, and May 4, 1943, laid off respectively
Adam Kamysz and Thomas McKenna, and on or about April 30, 1943, dis-
charged Victor Marsich, because they had joined and assisted the Union and
engaged in concerted activities for the purpose of collective bargaining and
other mutual aid and protection, and that by such conduct the respondent had
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, stated orally at the hearing, admitted the discharge
of Victor Marsich, but denied that it was for the cause alleged in the complaint
and denied all other allegations of unfair labor practices.
Pursuant to notice duly given to the respondent and the Union, a hearing
was held on March 6 to 10, inclusive, 1944, at Chicago, Illinois, before the under-
signed Trial Examiner, duly designated by the Chief Trial Examiner. The
Board and the respondent were represented by counsel and the Union by lay
representatives. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all
parties. The respondent made a motion for a bill of particulars and for a con-
tinuance on the ground of surprise. The motion for a continuance was denied
and the motion for a bill of particulars was granted in part
At the close of the hearing, counsel for the Board and the respondent argued
orally before the undersigned, and thereafter the respondent filed a brief.
Upon the foregoing, upon his observation of the witnesses, and upon all the
evidence, the undersigned makes the following :
FINDINGS OF FACT
1. THE 13USINESS OF THE RESPONDENT
Illinois Tool Works is an Illinois corporation with its principal place of busi-
ness in Chicago, Illinois,' where it is engaged in the manufacture, sale, and dis-
tribution of cutting tools, saws, bits, gears, measuring machines, and other
machine tools During the year 1943, it purchased for use at its Chicago plant,
metals and materials in excess of $100,000, of which more than 25 percent in
value was shipped to the plant from points outside the State of Illinois. During
the same time the respondent sold finished products of a value in excess of
$200,000, of which more than 25 percent in value was transported from that
plant to points outside the State of Illinois 2 The respondent admits it is en-
gaging in commerce within the meaning of the Act
U. THE ORGANIZATION INVOLVED
Amalgamated Machine, Tool & Die Local 1114-United Electrical, Radio &
Machine Workers of America, affiliated with the Congress of Industrial Organ-
1 The Kamysz and McKenna lay-offs were charged as violations only of Section 8 (1) of
the Act.
2 The respondent also operates plants at Elgin, Illinois, and Toronto, Canada. The
charges in this case involve only the Chicago plant.
2 The facts on commerce were taken from the complaint, paragraphs 2 and 3 which were
admitted by the answer.
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
izations, is a labor organization admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. The promulgation and enforcement of the rule against solicitation
The Union began organizing at the plant sometime during the spring or sum-
mer of 1942, but it did not start an open campaign until the first week of Novem-
ber in that year when it distributed its first printed leaflet' stating the aims of
the Union and inviting -applications for membership on a blank form printed
thereon. On this leaflet were printed the names of 17 employees ` as members
of the organizing committee. After the distribution of this leaflet the members
began wearing their union buttons The solicitation campaign at the outset
was widely carried on in the plant during working as well as non-working hours.
Charles J. Irwin, factory manager, testified that complaints came to him from
foremen and other employees about the continuous solicitations of the men while
they were at work, and about a month after the Union started passing out its
circulars they asked him if he could not do something about it.' "They asked
me if I didn't have power enough to stop it. I said, `I can stop anything'."
Within a few days after the appearance of the Union's first leaflet, super-
visors began to warn members of the organizing committee against solicitation.
Employee Francis James Martin, Jr., who was on the third shift (12 midnight
to 8 a. m.) testified that shortly before 8 o'clock one morning after the distribu-
tion of that leaflet, Chester Kuciel, then foreman of that shift, in company with
Horace Francis Travis, an instructor of new men and assistant to Kuciel, came
to his machine, holding -the aforementioned Union leaflet in his hand, and in-
formed Martin, ". . . there is a new rule. The men are not to leave their ma-
chines except at the regular times to get equipment and work and when you have
to." Kuciel testified that he had not had to warn Martin because "he was a
pretty steady worker, always stuck to his machine." Kuciel had apparently
forgotten the incident, however, because Travis testified that about that time
Kuciel had told him there had been some soliciting going on and that he was
going to warn the parties that were doing it while they were working, that
Kuciel asked him to go along, and that they "made a kind of tour" and warned
Martin and employee Walter Zalenka, among others, not to solicit on the ma-
4 Employee Francis James Martin, Jr., referred to it as the first. There was some indi-
cation in the testimony that there had been other bulletins issued before this, but, for the
sake of identity, the above leaflet will be herein called the first.
6 When the first union leaflet was printed, the names of 18 employees were listed on the
organizing committee Sam Giardini's name was the eighteenth, and before distribution
of the leaflet he requested that his name be not included. Since his name had already
been printed, it was deleted by a printed block. One of the leaflets on which Giardini's
name had not been so obliterated came to the hands of General Foreman Mulder. The
latter, who explained that he and Giardini were accustomed to kidding each other, went to
Giardini, and, according to Mulder's testimony, said, "Sam , you don't stack up so good
with the union because you have been blacklisted, you have been written off the com-
mittee here ; what's the trouble?" When Giardini denied it was his name, Mulder bet him
a coca cola on it and asked employee Thomas McKenna to decide the bet. McKenna, one
of the committee, told Mulder he won. McKenna testified that it was a friendly bet and
the undersigned finds that Mulder did not intend it, nor did any employee regard it, as
intimidation or restraint, and that it was not a violation of the Act. It is evident, how-
ever, from this incident and others, that the supervisors were in possession of copies of this
leaflet and knew the names of the employees on the organization committee.
9 The undersigned finds that Irwin was referring to bulletins prior to the one designated
by Martin as the first.
ILLINOIS TOOL WORKS 1139
chines.' Kuciel admitted having warned Zalenka. Martin, who had been em-
ployed in June of that year, testified that prior to Kuciel's statement, there had
been no announcement to such a rule.8
Irwin testified that sometime in the fall of 1942 after the Union began to
pass out leaflets, he got tired of having individual talks with the assistant
foremen who came to him and told him the employees were seeking advice on
the Company's attitude and on whether their jobs would be jeopardized if they
signed a card ; so he had Tomlin write a note to every assistant foreman and
every head foreman to meet with him in the cafeteria in the plant. In this
meeting, according to Irwin's testimony, he explained to the assembled foremen
and their assistants that they were a part of management and that they
could not stop anyone from organizing, told them what they could say, what
they could not say, how they could act, and how they could not act regarding
organization, explained his interpretation of soliciting and that they would not
allow soliciting during working hours but that on a man's own time, regardless
of where he was, he had the right to solicit, and he had Tomlin read them
sections of the Act.9
Two or three days after the initial leaflet was distributed by the Union, em-
ployees Louis N. Friedman and Victor Marsich were summoned to the office of
Raymond G. Mulder, general foreman of the Cutter Department, who told
them according to the testimony of Friedman and Marsich, that there was to
be no union solicitation at any time. Marsich testified that Mulder said they
had been soliciting and that if they were caught again they would be fired.
Friedman testified : "I asked him, `How about our own time?' He said, `Not
whatsoever.' And I asked him, `How can we organize the fellows if you
,don't give us any time? . . .' and he says, `Well, I don't have tot tell you
where, there is bowling alleys, there is taverns, anywhere you meet, but out-
side the plant.'" Mulder was not questioned about this specific incident, but
testified that he had cautioned Marsich along with a few other boys about
soliciting on company property, during working hours, about "a month or
more" before Marsich was discharged, as hereinafter related,10 and that he had
never told anyone that solicitation in the lunch room was prohibited nor that
it was prohibited in the locker room on a man's own time. The undersigned
finds that the conversation occurred as related by Friedman and Marsich.
° Zelenka was in military service and abroad at the time of the hearing.
The next day Martin went to the tool crib to get a piece of equipment and was exchang-
ing "small talk" with the attendant when, about 30 seconds after Martin had got his equip-
ment, Travis appeared and according to Martin's testimony, said in a loud voice, "Have
you got all you want, Martin?" and took him by the elbow and steered him across the aisle.
Martin testified he had never seen that done to anyone else and it had never happened to
him before
° It is difficult to place the exact time of this meeting in view of the vagueness of the
memory of witnesses as to the time. Irwin testified that it was a month or two after the
leaflets were being handed out in front of the plant, but he did not state when that was
He also testified that it was "way before " Kamysz was laid off. Tomlin volunteered hiA
opinion as being that it was in the latter part of the summer of 1942 Irwin testified that
Foreman Raymond Mulder was present at the meeting Mulder gave no testimony as to
this meeting but testified that he attended foremen ' s meetings for his department only.
Fabish recalled the meeting, and thought it was earlier than Tomlin placed it. The under-
signed finds that such meeting was held in the summer of 1942, but from evidence of
statements of supervisors herein related he believes that the foremen either were not suffi-
ciently instructed or that they did not remember their instructions.
10 Marsich was discharged on April 30 , 1943. Since Mulder did not testify to more than
one warning for Marsich, the undersigned believes and so finds that the incident testified
to by Mulder was the same as that testified to by Friedman and Marsich and that it
occurred in November 1942.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A few days after Friedman's conversation with Mulder, Friedman, according
to his testimony, on his way to his locker one morning at about 7 or 8 minutes
beford 8 o 'clock, his working hours being 8 a. in to 4 p. in., asked employee
Tommy March and some of the boys "if they got gravy last night."" Emil E
Johnson, superintendent of the night shift, who was standing nearby, ran up
to Friedman and said, "No union solicitation" or "No union soliciting ." Fried-
man was not asked whether or not March and the others were working at the
time, but the inference, from the question about "last night" and from the fact
that the night shift did not end until 8 a. in. is that they were. The under-
signed finds, therefore, that, if the incident occurred as related,' it might in-
dicate a suspicious nature on the part of Johnson but it did not make out a
case of interference on the employees' free time
At approximately the same time of the month Ben Kuhr, general foreman
of the Hob Department, called into his office employees Adam Kamysz, William
Kalter, and an unidentified employee, and according to Kamysz, "said he seen
me loafing around the shop, he knows there is union activities going on, if I am
doing any of it. He says I should try to cut it out or else he will take further
action." Kalter testified that Kuhr told them they could not solicit on company
premises and company time, but that he did not understand that he had the right
to solicit on the premises at times when he and the party solicited were not
supposed to be working until it was explained at a subsequent union meeting.
About January 8, 1943, at a little past 8 a. in, the end of the third shift
on which Martin worked, according to Martin's testimony, he was notified
that Mulder wished to see him. When Martin reached Mulder's office, where
Mulder and his assistant, Fabish, were, Mulder, according to Martin, said he
called him to notify hire and warn him that "any solicitation on company
property meant instant dismissal." Martin asked if that referred to any solicita-
tion during an employee's non-working hours, "and specified entering and leav-
ing the plant, washing up after work, changing clothes in the locker and at
lunch with other employees who also were not working." According to Martin,
Mulder replied that it did 13
11 "Gravy" means a good job at a good price , according to Friedman The employees
are paid a minimum guarantee called their day rate, plus incentive pay determined by a
piece rate
12 Johnson denied ever having cautioned or spoken to anyone about soliciting union
memberships
n Mulder was called as the Board ' s first witness and testified that the respondent had a
rule against solicitation of any kind . He testified as follows
Q Has that ever been published?
A I believe it was, although I wouldn't say definitely.
Q How did you learn about the rule?
A. Well , being a foreman , I would naturally know the company policy
Q Who informed you?
Q Well, my boss, Mr Irwin.
Q When did he first give you this information?
A Oh, I wouldn 't know. ,
Q. You don't recall the exact wording of that rule , do you?
A. Not the exact wording, no.
Q. What I want to know is whether or not the rule is against solicitation at any
time on company property or company time on company property?
A. Well , you see, that is a tough one, because we have, we did at that time and
we still have a split lunch hour In fact our cafeteria has capacity for a few people
and we stagger our lunch hours . A man might be on his own time and still go into
another department where these other men work Do you follow me on that?
Q It might be on the man's own time , but someone else ' s working time?
A. That is right
In view of Mulder's statement about the difficulty in interpretation 'of the rule in view of
the split lunch period, it seems not unlikely that he may, in the period when he first gave
ILLINOIS TOOL WORKS 1141
Martin also testified that he asked hypothetical questions to determine what
was regarded as solicitation, as, whether it was solicitation to discuss the union
in answer to a question, or to ask a man for information so as to understand his
question and answer him Mulder or Fabish replied, according to Martin, that
it was not, so long as "you don't ask him to join the Union." Questions such as,
"Did you ever join a union?" or "Do you think you might joint the union in some
future time?" were said by Fabish (according to Martin) not to be necessarily
solicitation since they might be prompted by requests for information ; but that
"Will you join the Union?" was solicitation. Martin testified that the section
of the interview that dealt with what constituted solicitation covered "at least
twelve minutes out of a two and a half hour talk " Martin concluded the con-
versation by saying that he would follow his own conscience in respect to solicit-
ing for union membership during lunch. Mulder and Fabish admitted having
a conversation with Martin at about the time stated but denied that it lasted
for 21/2 hours, and Mulder testified that he had told Martin that "for solicitation
on company property during working hours the penalty was dismissal " Fabish
testified that Mulder told Martin that soliciting on company time was not per-
mitted. Mulder and Fabish did not recall the hypothetical questions which Mar-
tin testified he asked, and Fabish testified that the whole conversation was "very
short." Fabish also denied that he did any talking himself and denied that
Mulder said that solicitation during the lunch hour meant instant dismissal
Martin appeared to be an earnest and conscientious person and impressed the
undersigned as an honest and straightforward witness 14 The undersigned be-
lieves that as much of the conversation as was related by Martin took place
substantially as related. His statement that the whole conversation lasted 21/2
hours appears extravagant, but none of the three witnesses was examined or
cross-examined in any detail about the length of the conversation to determine
how they estimated the time. Witnesses frequently make poor estimates of
time, distances, and the like when not examined closely about them, and while
the undersigned believes that Martin extravagantly estimated the time, he does
not believe that that affected his credibility as to what was stated in the con-
versation Martin was a member of the organizing committee and, as such,
appeared to have been deeply concerned about the interpretation of the no-solici-
tation rule. For this reason the undersigned believes that he would have been
impressed by the discussion and would likely have remembered it in greater
detail than would Mulder or Fabish"
warnings, have found it simpler to explain the rule as applying to all time on company
property Asked at the time he was on the witness stand for the respondent what his
interpretation would have been as applied to the lunch period, which was paid for, Mulder
testified, "Well, from the action we took on it I would say that was practically the man's
time because we never endeavored to enforce the rule during that period." This answer
leads to the inference that no announcement was made about solicitation being permitted
at such time, for if Mulder had had occasion to give an interpretation before, he would not
have had to make a deduction from action taken or withheld Travis testified that he
had never been instructed as to whether the rule against solicitation was applicable to the
lunch period The same problems that existed as to the split lunch period would have
also existed as to the beginning and end of shifts since the next shift was due to begin
without interruption at the end of the previous shift. There was no evidence, however,
that anyone had been reprimanded or disciplined for soliciting in the lunch room, nor,
except for Friedman's testimony above, was there any evidence that even suggested that
the rule was enforced in the plant during times before and after a man's shift.
A Martin had a university education
15 On January 9, 1943, the day following the foregoing conversation, Ernest DeMaio,
general vice president of the Union, wrote a letter to the respondent's president, stating
that employees of the respondent who were members of the Union had brought to his
attention the fact that they had been threatened by foremen and superintendents that
they would be subject to instant dismissal if they solicited for union membership on their
1142 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Prior to March 5, 1943, the employees had been given no written instructions
regarding prohibitions against solicitation of any kind 19 On about that date
the following notice was posted.17
NOTICE
Effective at once no collections of any sort will be permitted in any of the
shop or office departments for anything except Community Fund, U. S. 0.,
Red Cross and the sale of tickets to employee affairs such as the company
picnic, parties, and athletic events. In these cases these collections must
be first approved by management.
On about April 23, 1943, a form letter signed by President Smith was sent
to employees, reading as follows :
An effort is being made to induce our employees to join a labor union
and to place their affairs in its hands. You are entirely free under the law
to join a labor union or not, as you see fit. The question for you to con-
sider is whether you will be better off in a labor union or out of it.
The policies of our company in relation to its employees are well known
to our older employees. Under these policies, we of the Illinois Tool Works
have enjoyed pleasant and cordial relations down through the years; and
only recently we won the much coveted Army and Navy "E" pennant, which
was a direct result of our continued cooperative efforts. For the benefit
of newer employees, we believe it will be helpful to re-state the policies that
have guided us in the past.
You and every other employee of our company will be treated the same,
whether you belong to a labor union or not, concerning all matters in-
volving your relations with the company, including your wages, hours, condi-
tions of employment and promotions. It has not been and will not be
necessary for you or any other employee to join a labor union in order
to work here and to enjoy the same pay and other privileges as any other
employee who works here.
The "Wage Stabilization" laws and the President's "Wage Stabilization
Orders" apply to you just the same whether or not you belong to a labor
union.. We intend to continue our policy of doing everything in our power
to maintain wages, hours, continuity and conditions of employment in our
plant. We know that our rates of pay now compare favorably, and in some
cases are higher, than those that prevail for comparable workers in other
privately financed and competitive plants in our community.
You may present your own grievances, if you have any, directly to your
supervisor or any officer of the company at any time ; and they will be con-
sidered promptly and fairly. There is no need for anyone in our plant to
own time on company property . He related a decision of the War Labor Board in which
an employee , who had been discharged for soliciting for union membership on his lunch
hour , had been ordered reinstated with back pay, suggested that the matter be taken up
with the supervisory staff, and concluded that he would appreciate the president's com-
ments at his earliest convenience.
16 Irwin testified that there had been a notice posted prior to that date but was vague
about the time of posting and the contents . No one else testified to having seen it. Tomlin
apparently did not recall any prior to that date, although he remembered one before April
23, 1943, and the notice itself , if there was one was not produced
17 Irwin was the only one to testify to the posting of this notice . When asked if it had
been posted , Irwin testified , "Tom [McKenna ], you will have to answer that I am pretty
sure it was ." The form was the type used for bulletin board notices, and it is reasonably
certain that employees knew of the subject matter of the notice. The undersigned finds
that it was posted.
ILLINOIS TOOL WORKS 1143
pay anyone else to obtain a fair and prompt consideration of any complaint.
The solicitation of union memberships on the company premises and dur-
ing working hours is prohibited. Violation of this rule will be considered
sufficient ground for dismissal.
This letter is being written to each employee so that all our employees
may know the policies which underlie our relations, and to promote the
continuance of the friendly relations that have been traditional at the Tool
Works.
On or about May 14, 1943, the Company published and distributed an em-
ployees' booklet entitled "You and Your Company."
. Among many other subjects dealt with therein was one entitled "Reasons for
Discharge." The fourteenth reason was, "Solicitation of any kind or-the circu-
lation of petitions without the express permission of the Personnel Manager."
Tomlin testified that the rule against solicitation had existed long prior to
the time when any of the foregoing statements of the rule were published, al-
though he was uncertain whether it had been expressed in writing prior to the
letter of April 23, 1943. However, if it had been expressed in writing, it was
probably of the character. of the notice of March 5, 1943, the prohibition against
collections, according to Irwin's testimony. The prohibition of collections, as
stated in the March 5 notice, and of solicitations as stated in the booklet "You
and Your Company" was, in part, the result of frequent solicitation for funds
for retiring foremen, "for deaths of our own employees and deaths in the fam-
ilies of our employees, sometimes marriages, or engagements, any of the many
occasions that might occur in anyone's social life which his friends and asso-
ciates want to help him celebrate," according to Tomlin's testimony. With the
object of showing discrimination, Board's counsel elicited considerable testimony
as to the prevalence of such practices on company time. After the war started,
solicitations for presents and parties for men departing for armed service in-
creased until the number became so great they could not treat all alike, and
only the favorites were so honored. In an effort to make many of these collec-
tions unnecessary the respondent had, some years before, adopted a group in-
surance plan covering sickness, accident, and death, and it adopted a policy of
sending flowers to' homes of employees where there had been a death. Despite
the rule, collections continued to be made during working hours. The rule
against collections was less assiduously enforced than the rule against solicita-
tion, although there was evidence that on one occasion Irwin spoke to foremen
about a violation of the no-collection rule and on another occasion Tomlin told
some employees that it was "against company policy." No penalty was at-
tached to the rule or its enforcement. The evidence indicated that the collec-
tions for social events were either for a special individual among his associates
or for parties and athletic events open to all.
Even after receipt of the letter of April 23, 1943, the employees were appar-
ently uncertain as to whether they would be permitted to solicit during their
free time in the plant. Martin felt that the inclusion of the word "and" in the
rule there stated made it ambiguous. If the rule was intended to prohibit solici-
tation in the plant only during working hours, the word "and" was certainly
not needed, but it is unlikely that it was included as a trap for the unwary.
Further cause for doubt may have arisen, however, from the wording of the
fourteenth "Reason for Discharge" in the booklet "You and Your Company"
which made no mention of the time during which solicitation was prohibited.
About May 1, 1943, pursuant to a request McKenna had made to President
Smith for a conference to discuss the discharge of Victor Marsich, which is
hereinafter related, McKenna met in the library or conference room with Irwin,
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tomlin, and Smith, and perhaps Mulder. During this talk the question of
solicitation and the interpretation of the rule came up. McKenna did not recall
exactly how the conversation came up. Irwin gave an account of the manner
in which it was raised. Regarding the Marsich discharge, Irwin told McKenna
that Marsich could come in himself to discuss that. McKenna, according to
Irwin's testimony, said, "'Well, you know Marsich was supposedly fired for
soliciting . . . and you know that I do it.' . . . I [Irwin] said, `When?' He
said, `During noon hour and during the evening.' I said, `Well, you are still
here aren't you?' He said, `Yes."' McKenna testified that he raised the ques-
tion of solicitation on company property. "I told Mr. Irwin ... I had solicited
and was constantly soliciting union membership in the locker room, in the lunch
room, on my own time, not on company time, and it was my understanding such
solicitation was legal under the Wagner Labor Relations Act Mr. Irwin asked
me the question, 'Do you love your wife?' I answered, 'I do.' He said, 'If you
love your wife, don't do it any more, because if you do you might get caught,
you might get fired.'" Irwin and Tomlin gave a slightly different version of
this part of the conversation Irwin continued, after the portion of this testi-
mony above set forth, "Then I said to Mac, I said, 'Mac, do you love your wife?'
He said, 'I sure do.' I said, 'Well, then, for your wife's sake don't do what
Marsich did,' and that is what brought up the soliciting He said, 'Well, you
know you have got a rule on soliciting and what is that rule?' I said, 'Well,
just what do you think it is?' He said, 'Well,' he said, 'I should think it would
be that you cannot solicit on working hours, or company time, but during the
periods like lunch and in the locker room you can.' I said, 'Well, didn't you
just tell me that that is what you are doing and you are still here?' I said,
'Now, let me answer that question. You asked me can you solicit on your own
time? I am telling you yes and no If you are on your own time and some-
body else is not, then you can't solicit, but if the one that you are trying to get
to join the union is on his own time just go ahead.' " Tomlin's account of this
conversation was less detailed, but in view of the partial but vital conflict in
McKenna's and Irwin's testimony, Tomlin's is also quoted : "Well, Mr. McKenna,
as I recall it, said that he wanted to talk about the Marsich case, because he
understood that Marsich had been discharged for soliciting on company time
and working hours and that he didn't think Marsich had been doing that. Mr.
Irwin informed him of the certainty that we had as to the facts of what Marsich
had been doing and, as I recall it, Mr. Irwin said further to Mr. McKenna that-
well, he told him the story that has been related 18 about soliciting. McKenna
said he, had been soliciting in the lunch hour and in the locker rooms and in
the lunch room and Mr. Irwin-" At this point respondent's counsel inter-
rupted to ask whether McKenna had asked Irwin if that was permissible under
the company rule. Tomlin answered that'he had, and "He [Irwin] said that it
was permissible in the locker rooms and in the lunch room and he went on to
the loving question, as to whether or not Mr. McKenna loved his wife and Mr.
McKenna replied that he did and Mr. Irwin said, 'Well, then, if you do, don't
do what Marsich did."' While the undersigned noticed that Irwin had
a tendency to give argumentative and indirect answers when he was on the
stand, he does not believe that Irwin was trying to be evasive ; he believes
rather that it was characteristic of him to answer questions in such a man-
ner. Irwin had many opportunities during his testimony to make the facts
appear more favorable to him than they were, and he made no attempt to
18 Apparently Tomlin was referring to McKenna 's testimony , since, at this point, Irwin
had not yet testified about it.
ILLINOIS TOOL WORKS 1145
seize upon them. The undersigned regarded McKenna, Tomlin, and Irwin all
as honest witnesses and he believes that the conflict between McKenna's testi-
mony on the one hand and Tomlin's and Irwin's on the other, is attributable
not only to the fact that memory of exact words becomes dull with lapse of time,
but also to the fact that the meaning which the words have for, or the interpre-
tation placed. on the words by, either the speaker or listener tends to become
a part of the statement itself when the words are repeated later. In view of
this, the undersigned believes that, as the conversation took place the day after
Marsich's discharge, it was quite probable, and he finds that Irwin did warn
McKenna not to do as Marsich did. McKenna could easily have transposed these
words in view of his belief that Marsich had not solicited on working time.
That part of Irwin's relation of the conversation in which Irwin answered
McKenna's question by asking another question, and in which he gave the argu-
mentative answer, "Well, didn't you just tell me that that is what you have been
doing and you are still here?" sounds characteristic of him, and the undersigned
finds that that part of this conversation took place substantially as related.' The
undersigned believes that, while Irwin may have intended to convey to McKenna
the understanding that solicitation was permitted during non-working times,
he did not do so, and finds specifically that Irwin did not at that time explain
it clearly nor in the language testified to by Irwin in the last sentence of his
testimony quoted above, and that McKenna left with the impression that he was
soliciting in the locker room and lunch room at the risk of getting caught. This
conclusion is fortified by events hereinafter related 19
On May 6, 1943, a conciliator named Wahl or Wall, apparently of United States
Department of Labor, visited the plant in connection with two discharges and
the respondent's letter to its employees, and discussed with Smith, Irwin, and
Tomlin the interpretation of their rule against solicitation. 20 Smith testified
that they "explained" the respondent's policy on union solicitation to Wahl and
showed him a copy of "the letter," presumably referring to the letter of April
23, 1943, as set out above. Irwin testified : "So the conciliator came out and sat
with Mr. Smith in his office and Tomlin and I was there and he said, `Mr. Smith,
is this interpretation of your soliciting rules correct?' And he called them off
and Mr. Smith said, `Yes, that is right'."
McKenna learned of the conciliator's visit and that Smith had stated that
solicitation would be permitted on company property on the employees' own
time ; so he went to Mulder's office and told Mulder that this was the first they
had heard of any representative of the company having said that and asked
Mulder to check and find out if it was true "that there was this change in the
rule." Mulder agreed to do so A few hours later McKenna returned to Mulder's
office and, according to McKenna," . . . he told me . . . that he had checked
and that there had been no change in the rule that solicitation would not be
permitted, that the rule still stood that solicitation would not be permitted on
company property at any time." Mulder told McKenna that he had received
the interpretation from Irwin rather than from Smith. Mulder's recollection
of the incident was not too vivid. He remembered that McKenna had come to
him to ask him "if I could clarify that statement." "What he wanted was the
19 The undersigned finds further basis for this conclusion from Smith's testimony that
"Charlie Irwin expressed it in his own words and . . . he told McKenna to all intents and
purposes that soliciting would not be permitted on company time and on the company
premises."
2° When Wahl discovered that the Union had not yet been recognized , he stated that be
had no further business there, but they discussed for a short time thereafter the respond-
ent's policy on union solicitation.
e
1146 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
management 's viewpoint on that ," rather than Mulder's interpretation . Mulder
testified that he went to see Irwin who " told me [Mulder ] that this statement
meant exactly what it said , that there was no solicitation on company property
during working hours." Mulder did not remember whether Irwin went into
-detail on it. Irwin testified that when Mulder came and asked him for "the
right interpretation ," he, Irwin, asked , "'Wasn't you in the office the other day
when I give McKenna the interpretations of our rules?' and he [Mulder] said,
`Yes.' I says , `Well, can't you go out there and give it to him again ?' `Well,'
he said, `but he wants it from you ' I said, `All right , tell him this ' and I told
him what to tell him again . . . that on his own time soliciting is yes and no ;
no if he is talking to someone that is working ; yes if the one that he is talking
to is on his lunch time" or not working. Again there are slight but important
discrepancies in the three accounts . Again the undersigned believes that the
differences are accounted for by the fact that none of the witnesses remembered
exactly what was said but that each remembered it in the light of his own un-
derstanding of the meaning of the words used. The undersigned believes and
finds that Irwin told Mulder substantially what he testified he did, that Mulder
reported to McKenna that the rule meant what it said, i. e . as it was stated in
the letter of April 23 , but that Mulder did not go into greater detail, and that
McKenna, being in doubt as to the meaning of "company time" or "on the com-
pany premises and during working hours ," probably interpreted Mulder's reply
to mean that there was to be no solicitation from the time of the starting bell
to the time of the quitting bell.
In any event , the respondent did not see fit to make any general announce-
ment as to what constituted "company time ." Because of this, because of the
earlier explanation of the rule by Mulder as applying at all times in the plant,
and because of the issuance shortly after these conversations of the booklet
"You and Your Company," stating that solicitation of any kind without the ex-
press permission of the personnel manager was cause for discharge and making
no limitation as to time , the undersigned finds that the employees at large were
of the belief that they were not privileged to solicit in the plant at all.
In January 1944 McKenna again asked Mulder for an interpretation of the
no-solicitation rule. Mulder again went to Irwin and Irwin told him the
answer was still the same and that he knew "what to give him ." Mulder
testified that he "went back and . . . gave it to Mae" McKenna , on cross-
examination , testified that Mulder on this occasion told him that solicitation
would be permitted "in the event that the wprker who made the solicitation
was on his own time and the person he was soliciting was on his own time, that
is, in the locker rooms before work, in the lunch room during the noon hour,
or also in the plant during the noon hour , so long as both parties were not at
work . . ." The undersigned finds that Mulder stated the rule substantially
as testified by McKenna . No general announcement of such interpretation was
made, however.
2 Questioning of employees about union membership and activity
Russell M. Wicks, superintendent of the respondent's Elgin plant was, in March
1943, working at the Chicago plant as an assistant to Irwin. In that month,
employee William Wasinger, who had been hired by Wicks to work in the Elgin
plant, was, as a result of a transfer, also working at the Chicago plant. Wasin-
ger testified that in the latter part of that month, Wicks, who was in Irwin's
office, sent for him; that Irwin was not present, that Wicks asked him whether
he had attended a certain union meeting, to which he replied in the affirmative ;
ILLINOIS TOOL WORKS 1147
that Wicks asked how many men signed up at the meeting, and that he replied,
, . none that I seen signed up there, they all signed up previously." Was-
inger then testified that, as he was leaving, Wicks said, "Well, whenever
you are ready to get down to something, I am always willing to listen."
Wasinger replied that Wicks might have to wait a long time and walked out 2'
Wicks admitted having had a conversation with Wasinger at his desk in the
office at that time, but his account differed in some respects. He testified that
he had not sent for Wasinger to talk about the Union ; that there had been a
conversation about other matters before the subject of the Union came up
While he did not expressly deny having raised the subject, he made it appear
that Wasinger volunteered the statement about having been to the union meet-
ing, but he admitted that he had asked "how many of the fellows had signed
up" and that Wasinger had replied "none signed up but they had signed up pre-
viously." He denied having invited Wasinger to make any further reports.
His reason for asking the question about how many signed up at the union
meeting he stated as curiosity "to see how the union was getting along " Re-
gardless of whether Wicks called Wasinger to his office for the express purpose
of questioning Wasinger about the Union, the undersigned believes that Wicks
did raise the subject as Wasinger testified. In view of Wicks' curiosity about
how the Union was getting along, it is reasonably inferable that he made the
closing statement as testified by Wasinger and the undersigned so finds
In April 1943, John C. Biemeck, general foreman of the stamping division,
sent for about 6 employees, among them Walton Thomas Spacko, Philip Neu-
bauer, Casimir Panfil, and Fred Goebel, asked them if they had signed union
application cards, and told them they did not have to reply if they did not want
to. They all replied that they had. Spacko was the only one who testified
that more was said than that. After he answered the foregoing questions
according to Spacko's testimony, Biemeck asked him "if I thought it would do
any good, do me any good" He continued : "I told him I had not been to a
meeting and at that time I didn't know, would find out. So he told me, figured
there was somebody in the department looking for a steward's job to make a
little side money on. That was all that was said." 22 Biemeck admitted that
he had sent for the men and asked them whether they had signed the cards, and
stated his reason to be "just personal curiosity. There were a lot of activities
going on through the department and I just wanted to find out what it was all
about " He was not asked about the statement testified to by Spacko. He
testified that he called these particular employees in because he had contacted
them more than some of the new men and that he made no use of the information
he had obtained. The undersigned credits all of the foregoing testimony as to
this incident. It is found that by Wicks' and Biemeek's questioning of the em-
ployees and by Biemeck's disparagement of the Union, the respondent has inter-
fered with, restrained, and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
21 Wasinger was laid off or discharged on April 17, 1943, and the Union filed a charge
with the Board on April 30, 1943, alleging, among other things, that the respondent had
discriminatorily discharged Wasinger. No complaint was issued on this charge and
Wasinger was not included in the second amended charge nor in the original or amended
complaint.
22 Spacko also testified that Biemeck said he thought he [Spacko] was foolish. The
undersigned has made no finding on this because he was in doubt from the evidence as to
whether Spacko mean that these were the very words that Biemeck used or that this was
Biemeck's attitude as disclosed by his other words. But the undersigned does find that
Biemeck indicated such an attitude,
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Warning employees against "union talk"
Shortly after April 17, 1943,23 employee George C. Johnson,,whose work bench
is adjacent to the office of Foreman Ed Sharp and that of Sharp ' s assistant,
Elmer Rowe, was having a conversation at his bench with an employee from
another department who stopped to ask Johnson what kind of oil to use on his
washing machine, when Rowe rapped on the window and called him into his
office. In the presence of Sharp and his clerk, Rowe, according to Johnson's
testimony, said that Johnson was "talking union to that man out there" and
that he would have to stop. Johnson told Rowe to call the other man in to find
out what they were talking about. Rowe said, according to Johnson, that he
heard Johnson talked union. Johnson said, "As far as talking union, yes I have
talked union," and explained, "We talked about different subjects all through
the shop. Everybody talked union. I couldn't get out of it, nobody else can."
Johnson also testified he was told by Rowe that "there would be no soliciting"
and that he (Johnson) understood that that applied to the time he ate lunch with
other employees in the boiler room although the rule, as he understood it, pro-
hibited only solicitation during that time and not "union talk." Rowe did not
testify. The undersigned credits Johnson's testimony. By telling Johnson he
would have to discontinue "union talk," Rowe went beyond the scope of the rule
against solicitation and by that, as well as by failing to limit his statement of that
rule to working time, the respondent interfered with and restrained its em-
ployees in the exercise of their rights as guaranteed in Section 7 of the Act.
4. Miscellaneous instances of alleged interference, restraint and coercion
Board's counsel sought to prove that the respondent discriminated against
employee Walter Zalenka by denying him draft deferment because of his union
membership . The only evidence of this was Zalenka's unsworn memoranda of
his conversations with Foreman Kuciel and Night Superintendent Emil Johnson
and Martin's testimony of conversations with Zalenka in which Zalenka, had
repeated his conversations with Kueiel and Johnson 24 The evidence adduced by
the respondent disclosed that the respondent had adopted a policy of asking
deferment for men who had been with the respondent for a certain length of
time., At the time of Zalenka's request for deferment the period of time was
1 year, and at that time Zalenka had not been with the respondent for that lentgh
of time.25 Alleged statements by Johnson, if proved, would have been derogatory
to union organization and designed to influence Zalenka to abandon the Union.
Johnson denied having made any such statements, although he admitted having
talked to Zalenka at the time stated in Zalenka's written statement and told him
22 The month of this occurrence was first stated by the witness to be May and later was
given as June but was said to have been shortly after Wasinger was laid off . Wasinger's
lay-off had been fixed as April 17.
24 As previously stated, Zalenka was abroad in the armed services at the date of the
hearing. One memorandum , which Martin testified Zalenka handed to him on November
21, 1942, related the warning which Kuciel gave Zalenka on the occasion testified to by
both Travis and Kuciel . The memorandum included two statements which Travis did not
relate and one which Kuciel -%as specifically asked if he had made and which he denied.
["Tex, there can be no soliciting during working hours , that includes lunch time because
,you are paid for that The next time your ( sic) cauqht you'll have to start looking for
another job ." ( Italics supplied to indicate the uncorroborated portion ) ] Because neither
of the two statements was made by Kuciel in his warning to Martin, according to Martin's
own testimony , and because neither Travis nor Kuciel testified that they were made, the
undersigned makes no finding thereon.
21 The respondent had asked defernient ,for 7 members of the Union' s organizing com-
mittee.
ILLINOIS TOOL WORKS 1149
he was not eligible for draft deferment because he had not beeii there long enough.
He also testified that Zalenka was in his office for not more than 2 minutes and
that this was the only time that he spoke to Zalenka. In view of Johnson's denial
and the fact , that the respondent had no opportunity to cross-examine Zalenka,
the undersigned finds the evidence inadequate to establish the fact sought to be
proved by Board's counsel . The undersigned finds that the respondent did not
discriminate against Zalenka with respect to his draft deferment.
About April 19,1943, employee Thomas McKenna sought to arrange a conference
between a committee of the Union and Irwin to discuss the discharge of William
Wasinger , a Union member
:s At first Irwin set a time for the meeting, and
McKenna notified the committee members thereof , but later in the day Irwin
called McKenna to his office and told him that he had investigated , found that
the discharge was a lay-off for lack of work, that there was nothing to discuss,
and that he could not meet with any person to represent another but would meet
only with individuals in connection with their own grievances . Irwin asked him
why he and the committee should want to discuss someone in a foreign depart-
ment. According to Irwin, McKenna replied, "Well, you know, Chuck , I am very
much interested in the union , I am doing all I can to organize around here."
Tomlin was present and he spoke up and said, according to Irwin, "'Well, what
are you doing that for?' Me [McKenna] said , `I want to make the Illinois Tool
Works the best place in the city to work in .' And Tomlin said, `What is the
matter with it now?' He said, `I have to say it is a pretty good place but there
are things that could be corrected around here .' " 27 At the conclusion of the
conversation , McKenna went to Mulder and Fabish and asked permission to
notify the committee members, who were in other departments , that the confer-
ence with them had been called off. Fabish said he could do so but that he would
have to accompany McKenna, and they went together to notify the committee. No
reason was given as to why it was necessary for Fabish to accompany him and
McKenna testified that it was not customary for Fabish to accompany him when
he went to other departments on company business . Fabish was not questioned
about this incident.28
Since Fabish did not explain his purpose to McKenna , his conduct is subject
to more than one interpretation . He may have been accompanying McKenna
to see that he did not tarry to talk about the Union ; to see that the news of the
called-off conference did not result in any serious interruption of work; to see
that McKenna would not run into difli uculties with supervisors of other depart-
ments who might think he was wasting time ; or for other reasons . The evidence
is not strong enough to support an inference of an improper motive and the
undersigned finds that Fabish's conduct was not interference , restraint, or
coercion.
For the purpose of proving anti-union statements by the respondent , evidence
of statements made by rate -setter Charles Jordon to Friedman was introduced
by the Board . Board's counsel argued that Jordon should be considered as
speaking for management because of the fact that he was able to increase or
2° Tomlin testified that Irwin had met with a group of employees in February 1943, to
discuss a discharge but that he did not meet with them as a union delegation. Marsich
testified that he was a member of that committee, which included also McKenna, Friedman,
and another
27 This was part of a conversation, the balance of which will be related hereafter in con-
nection with McKenna's lay-off.
28 Fabish testified to an occasion in 1942 or 1943 when McKenna was called into his office
by Mulder to, be warned about union solicitation, that McKenna had asked why he was
being warned, and that Mulder had replied that he had been observed doing quite a bit of
moving around.
639678-45-vol. 61-74
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decrease the earnings of employees by the rates he fixed on piece work . Jordon
appeared to have no supervisory power. As to his control over the earnings of
employees , Jordon testified that when he sets the rates on a job, he does not
know what employee will get the job, and that he would not know after the
rate was set unless a complaint were made to him through the foreman that
the rate was set too low , and then he might go to the man to see if he was handling
the job in the manner regarded as the most expeditious, but that the foreman is
the one who determines whether the work should be done as suggested by the
rate setter . In view of the foregoing, and the fact that Friedman himself did
not regard Jordon as a supervisor , the undersigned finds that Jordon was not a
supervisor . While Jordon's work is related to managerial functions , the under-
signed believes , and so finds , that his statements about the Union are not attribu-
table to management by virtue of his position as rate setter . Furthermore, the
undersigned finds that Jordon was merely expressing a personal view in response
to a query by Friedman and that Friedman understood it as such rather than
as being an official expression of the respondent.
5. The lay-offs
(a) Kamysz's lay-off
On November 17, 1942, about a week after Kamysz had been warned by Kuhr
about solicitation, at about 8:30 a. m., near the beginning of Kamysz 's shift,
Kuhr called Kamysz into his office and told him he would have to lay him off
for 2 weeks because he had not heeded the warning not to solicit. A fey days
after he was laid off, Kamysz returned and spoke to Irwin, telling him of his
financial difficulties and of the illness of his wife and child. Irwin consulted
Kuhr and Tomlin and they decided to reduce the penalty and let him return.
Kamysz promised he would not solicit any more during working hours. In all,
Kamysz was off for 5 days. After his return he refused to have anything more
to do with the Union. Kamysz testified that,'both before and after having been
warned by Kuhr, he had solicited during working hours, and Irwin testified that
Kamysz so admitted to Kuhr before his layoff 29 and to him at the time Kamysz
sought to reduce the lay-off period 3° From all the evidence the undersigned
21 Kuhr did not testify.
Si Counsel for the Board sought to show that Kamysz was laid off for soliciting on his
own time and that he was reinstated before the expiration of the 2 weeks ' lay-off because
of an understanding that Kamysz was going to give up union activity Willard Kalter, an
employee with whom Kamysz was living at the time of his lay-off, testified that, after
Kamysz ' s lay-off„ Kamysz told him he was laid off for soliciting in the locker room
Kamysz testified that the day before his lay-off he had gone across the aisle "trying to ket
names" and was passing out union buttons to anyone that would wear them and he "was too
close to his boss 's office " He also testified ' that he was "supposed to" have been seen solicit-
ing in the locker room, too, but he did not indicate whether he was or was not in the locker
room on his own time. Kamysz testified that if his production was not up to his day rate,
he would not leave his machine , but that if he figured he was a little ahead ( because of his
piece rate ) he would move around soliciting union memberships "on my own time " The
undersigned infers that he meant that if he had produced enough to earn his base pay,
he regarded the rest of the time as his own, even during working hours, since from that
point on he was paid only for what he produced. In view of the fact that during that time
others would be working to make their base pay or to exceed it and in view of the fact
that the respondent was producing as much as possible for the war effort, the undersigned
is unable to adopt such an interpretation of what constitutes an employee ' s free time
McKenna testified that after Kamysz's lay -off, Kamysz told him he did not wear his union
button any more because he was reinstated on condition he would not wear the button.
Since Kamysz did not testify to this and since there was no direct evidence of such a condi-
tion being imposed by management , the undersigned does not feel justified in basing a find-
ing on such secondary evidence . Even if Kamysz did make such a statement to McKenna,
ILLINOIS TOOL WORKS 1151
rinds that the lay-off of Kamysz and the reduction of his lay-off period did not
constitute interference, restraint or coercion within the meaning of Section 8
(1) of the Act.
(b) McKenna's lay-off
McKenna was one of the editors of the union's bulletins. On about March 12,
1943, the Union published and distributed at the plant a bulletin listing rates
of pay by job classifications, which the Union supposedly had in its contracts
with two plants which were in some respects competitors of the respondent.
These rates were represented to be minimum guaranteed day rates and readers
were invited to compare them with "low classifications of day rate" at the
respondent's plant. Comparative piece rates were not given, but the bulletin
suggested that "low day rate levels ALWAYS act as drags on piece rate levels
in the long run." The bulletin also stated that the Union was strongly op-
posed to "the practice of quitting ITW for `greener pastures' to which so many
indispensable workers have yielded in the recent past . . " that quitting
evaded the issue, "which is-MAKING ITW THE BEST SHOP IN THE CITY
TO WORK FOR !" For one of the companies, Service Tool, Die & Manufactur-
ing Company, the bulletin listed not only minimum but also maximum rates
For the other, Midwestern Tool Company, minimum rates only were listed, with
the notation that there was no set maximum on any job
On about April 19, 1943 (the day on which McKenna had asked for a confer-
ence concerning Wasinger's discharge) while McKenna was in Irwin's office to
be informed that Irwin would not meet with a union committee as heretofore
related, Irwin suggested to McKenna that the Union might "go a little further
if they would be a little more truthful in the pamphlets that they hand out."
McKenna said he was sure that they were truthful because, he was one of the
editors. Irwin asked the names of the other editors, but McKenna stated that
he could not give their names unless he got their permission. Irwin asked
what McKenna thought should be done if there were mistruths in the bulletins
and McKenna replied that a correction should be published. Irwin then had
Tomlin produce data which they had secured on the wage rates at the two con-
cerns ' for which the Union had published rates as above stated, and Irwin
showed it to McKenna, calling his attention to discrepancies. McKenna said
he would look into the matter. 0
The following day, Irwin called McKenna in and reminded him that he had
said he thought inaccuracies ought to be "retracted,"u and then said, "All right,
1 want these retracted and I want it done just about as fast as it can be done •"
He explained to McKenna that the publication of those figures in the union
bulletin had "disrupted the morale to some extent," that he [Irwin] had pro-
cured the correct figures and turned them over to the foremen, and that "a
whole lot of our employees now know the right figures but I think the union
ought to tell them that they made a mistake," and he asked McKenna to take
care of the matter. According to McKenna, Irwin said he would hold him re-
I
Kamysz may have been fabricating an excuse to foreclose any further discussion There
is no doubt that Kamysz's lay-off gave him a dread of further penalties, but under all the
circumstances related, the undersigned is unable to infer that Kamysz ' s fear was the con-
sequence of an application of a rule beyond the bounds allowed by law.
81 This data was in the form of an employee ' s handbook of the Midwestern Tool Company,
which contained a copy of the Union's contract with that company, and notes on the rates
at Service Tool & Die Manufacturing Company, both of-which Irwin had procured from
these respective companies on the same day that the union bulletin appeared.
"Irwin and Tomlin testified McKenna said "retracted ." McKenna was emphatic that
he never agreed to a retraction but did agree that "corrections" should be made.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sponsible as one of the editors 33 Between that time and April 28, McKenna in-
vestigated and discovered the following errors and explanations therefor:
The figures on wage rates at the Service Tool and Die Manufacturing Com-
pany had been obtained from a signed copy of the Union's contract with that
company, but the Union had, in April 1943, been negotiating for an increase in
wages and had penciled in after the starting rates and minimum rates a list of
maximum rates which the Union and company had tentatively agreed on for
the next contract, but the figures ultimately were not used. The result was that
the editors of the bulletin mistakenly assumed that the penciled figures were
part of the contract and erroneously included them along with the minimum
rates which were correctly copied. The minimum rates were those for qualified,
workers and not for beginners. The figures contained in the union bulletin on
Midwestern Tool Company had been obtained by the editors from a copy of a
letter which the Regional War Labor Board had written to that company an-
nouncing approval of an application for adjustment of rates. They errone-
ously assumed that these were minimum rates.
On April 28, McKenna reported to Irwin that he had discovered errors and
that corrections would be published "within the next four or five days, shortly,"
as McKenna testified, or in "the next bulletin" as Irwin testified McKenna said.
On or about May 1, 1943, when McKenna met with Smith, Irwin, and Tomlin in an
effort to discuss Marsich's discharge, Irwin raised the point that no retraction
had yet been published and that unless a retraction were published he would
have to release McKenna. Irwin then handed to McKenna a typed statement of
a proposed retraction 34 McKenna told Irwin that a publication with the correc-
tion would be published early'the next week.
On or about May 4, the Union distributed another bulletin, in which no correc-
tion of rates appedred. McKenna testified that the correction had been planned
as a part of this bulletin, which was to have been in two parts but that for some
reason the second part, containing the corrections, was held up. When this bulle-
tin, without the corrections, came to Irwin's attention on May 4, he had Mulder
lay McKenna off until a correction should be made On May 6, the Union dis-
tributed a bulletin, containing corrections but not according to the suggestion,`
and on May 7, Mulder telephoned McKenna and called him back to work. Irwin
testified, "We were not entirely satisfied with it [the correction as printed], but
nevertheless, we told Ray [Mulder] . . " to call McKenna back.
Irwin testified that his reason for wishing a retraction was to overcome the
disturbing effect which the March 12 bulletin had on the employees," and that he
33 McKenna did not agree to assume such responsibility.
34 This read "We wish to correct some erroneous impressions that were created by some
rates quoted in one of our bulletins a few weeks ago We quoted a minimum rate schedule
for the Midwestern Tool Company ; actually these rates are the very maximums this com-
pany may pay if they so desire. The minimum starting rate in the plant is 55 cents an
hour for the first month
"We also quoted some minimum and maximum rates for Service Tool & Die Manufac-
turing Company . The maximum rate schedule we quoted does not exist in the plant. The
minimum rates we quoted are instead the going rates for full-fledged tradesmen in the occu-
pations listed." As far as they go these facts were true , but McKenna testified that his
investigation showed that Midwestern Tool Company did not at that time have anyone
working under the 55-cent rate.
35 Heading this bulletin was a "flash" about McKenna 's suspension.
16 Irwin testified • "Never before had the men got together in bunches after starting time
and talked about a thing as they did about this , not only talked about it for five minutes
but talked about it for half an hour The assistant foremen and foremen had trouble get-
ting them to work. They wanted to know, 'Is this true ?' Or, 'What is this thing? If
that is the truth, what is the Illinois Tool Works going to do about it 9 ' How could the
ILLINOIS TOOL WORKS 1153
did not do anything about it until April 19, because he did not know "what to do"
but, when he found out that McKenna was one of the editors, he thought, "Now I
have got a way to have this thing straightened out."
Irwin's interest in a truthful representation of facts is understandable, and in
asking for a correct statement of facts he was acting reasonably. However, his
request could not be converted into a demand with threat of individual punish-
ment for an act that was clearly part of the Union's concerted activity 37 McKen-
na's participation in that activity and in the unintentional, though negligent,
misstatements was not unlawful conduct which would justify individual pun-
ishment 3s
6. Conclusions on interference, restraint and coercion
The sum of the evidence indicated that the respondent preferred nonunioniza-
tion. Its expression of this preference to the employees, however, was not put
in form of strong anti-union language. That fact and the careful wording of the
letter of April 23 (which hardly concealed the respondent's leaning, however),
indicated that the respondent was attempting to follow the legal advice it was
receiving. The respondent's witnesses testified that a no-solicitation rule had
existed at the plant for some years before the Union appeared, and it was testified
that the rule was designed to curb promiscuous solicitation of funds for social
and charitable purposes which had grown to such proportions as to have become
a nuisance. Before March 5, 1943, and even afterward to a lesser extent, such
solicitations were taking place. Meanwhile, a rule was verbally announced that
no solicitation would be permitted for the Union. The undersigned believes that
when this rule was first enforced it was intended to be limited to company time,
and some supervisors, passing the rule along without explanation, stated the rule
in a way which could not be criticized. Others, either because they had not
comprehended their instructions or because they placed their own interpretation
on the rule, informed the employees that the rule applied at all times in the plant,
or even, as in Rowe's case, extended it to "talking union."
From the outset this rule was assiduously enforced. In many cases warnings
by foremen were given to employees who had been seen away from their work
and were merely suspected, not known, to have been soliciting for the Union.
If solicitation for a union were in nature analogous to collections of funds for
charitable and social purposes, a contrast might be drawn between the manner
of enforcing the respective rules Since collections for social and charitable pur-
poses are usually not attended with the degree of persistence frequently used
in solicitation for unions nor with the resultant controversies frequently attend-
ing union solicitation, the undersigned feels that an unsatisfactory basis for com-
parison exists. The rule against collections was not even stated-to be ground
for discharge unless it was to be considered as merging with the rule against
solicitation in the statement of grounds for discharge in the employees' handbook
of May 14, 1943, making discharge the penalty for any unapproved solicitation:
Prior to May 14, 1943, other solicitations than union solicitation were apparently
foremen answer those questions ? So they [the foremen, presumably ) had to come in and
get their instructions. Well, they got their instructions and then things went along a
little smoother."
37 Matter of Peter Casper Kohler Swiss Chocolates Company, Inc, 33 N L R B 1170 at
pp. 1178-80, Matter of Fein's Tin Can Company, Inc., 23 N L R. B. 1330 at pp 1354-9,
Matter of Berkshire Knitting Mills, 17 N. L. R. B. 239 at pp 261-2, 268-9, and 46 N. L.
R. B. 995 at pp 979-80, enf'd as mod ., 139 F. (2d) 134 (C C A 3)
is It is not meant to suggest that union employees would be protected by the collective-
activity cloak against punishment for publication of legally defamatory matter.
.1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not included in the respondent's rule and the rule itself may to that extent be
criticized, but this in itself does not indicate discriminatory enforcement. The
undersigned has found that prior to April 23, 1943, the employees were not uni-
formly advised that the rule was inapplicable to their non-working time in the
plant. And if that letter of that date corrected their misunderstanding, the four-
teenth cause for discharge as published in the employees' handbook on May 14,
1943, recreated it. Nothing thereafter was published to rectify such misunder-
standing, nor did any employee receive a complete verbal interpretation of the rule
before 1944. The undersigned finds that the statement of the rule as made by
Mulder and Rowe, and the ground for discharge as published in the employees'
handbook, "You and Your Company" was unduly confining as was Rowe's warning
to Johnson to stop "talking union," and he finds that thereby, by the questioning
of respondent's employees about union affiliation and organization by Wicks and
Biemeck, by the lay-off of McKenna for union activity, by Biemeck's disparage-
ment of the Union, and by Irwin's statement to Marsich as hereafter related, that
he would fire more union men if the union bulletins caused trouble, the respondent
has interfered with, restrained and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
While certain statements in evidence, such as Irwin's, that the rule prohibiting
union solicitation was adopted to protect the majority of the workers, arouse
the suspicion that the rule was adopted for the purpose of frustrating the
union, it is noted that although Irwin could have meant protection from union
doctrines, he could also have meant protection against interruption of work
on company time It is clear that such solicitation was going on widely during
working hours before the rule was adopted ; so a legitimate reason for adopting
the rule existed. While the respondent strictly enforced the rule, there was no
Evidence that anyone was disciplined for soliciting during the employees' free
time.
The respondent's letter of April 23, 1943, to each of its employees contains in
itself no threat of reprisal, yet it definitely reveals the respondent's preference
and subtly informs the employees that as respects wages and presentation of
grievances a union could not offer any betterment The, sentence, "It has not
been and will not be necessary for you or any other employee to join a labor
union in order to work here and to enjoy the same pay and other privileges as
any other employee who works here," emphasizes one side of the argument.
Other statements constitute an argument against the unions However, the
letter does indicate that equal treatment will be accorded to union and non-union
members and this would dispel any suggestion of coercion. By the standard
of the American Tube Bending Company decision,39 the letter is not coercive.
While there are here more circumstances indicating the respondent's attitude
toward union organization than just the letter, and while such a letter as this
is to be considered in relation to the total setting, the undersigned believes that
as part of that total setting evidences of lack of discriminatory design should
not be disregarded Requests for draft deferment were made for a number of
known and active union members. Base pay rates were increased for such
prominent union, men as McKenna and Friedman during 1943.4° The rancor
which frequently accompanies opposition to unions was not evident. On all the
$9134 F. ( 2d) 993, setting aside 44 N L . R. B. 121, cert. den. 64 S. Ct . 84. The under-
signed regards the facts in N. L. R. B. v. M . E. Blatt Company, 143 F. (2d) 268 (C. C. A 3),
cert . denied 65 S. Ct. 35, as distinguishable , since in that case the Court placed emphasis
on a statement to employees which omitted to say that the employees might join a labor
organization and still remain in respondent's employ.
40 Martin was likewise given increases but the record does not show the dates.
ILLINOIS TOOL WORKS 1155
circumstances, the undersigned concludes and finds that, while the letter of
April 23 did not conceal the respondent's partiality, it was not coercive.
By laying off Adam Kamysz, the undersigned finds, the respondent did not
interfere with, restrain, or coerce its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. The discharge of Marsich
Victor Marsich was first hired by the respondent, in January 1937, but was
laid off and he returned to work in April or May 1939. From August 1939 until
the date of his discharge in 1943 he worked at a lathe in department 2, General
Foreman Mulder's department. There he acquired some degree of skill, and
his earnings in 1943 averaged about $152 an hour. He joined the Union in
July or August 1942, but was not active until November. His was one of the
17 names on the Organizing Committee in the union leaflet that was issued
early in November 1942. After that leaflet was published, the union members
began to wear their buttons. Marsich was named by the committee as one of
the six or eight stewards.
As previously stated, Mulder called Marsich and Friedman into his office in
November 1943, to warn them about solicitation for the Union" At that time
Mulder told Marsich that if they were caught again they would be discharged.
On that occasion Marsich admitted to Mulder that he had been soliciting.92
And at the hearing, Marsich admitted that he had solicited union memberships
on working time after the warning as well as before,'3 but testified that he had
not done so for 2 weeks before his discharge because vacation pay'i did not
start until May 1, and he had "laid low," apparently so as not to jeopardize
his chance of getting it I
"Friedman testified Mulder said , " I don ' t want to be hard on you fellows , but I am
giving you warning that no solicitation at any time " Mulder testified he had warned
Marsich because the latter had been seen wandering around the department and Mulder
assumed he had been soliciting and he "thought it only fair to caution him about company
policy. " The date of this warning is taken from Friedman ' s testimony . Mulder testified
that he warned Marsich and a few others "a month or more" prior to Marsich's discharge.
Fabish testified that Marsich "was warned at least once that I know of" and estimated the
time as 2 months before Marsich ' s discharge Because Mulder , Fabish, and Marsich testi-
fied to no other than one warning, the undersigned concludes and finds that they were
talking about the same incident . Friedman set the time of the warning as a few days
after the issuance of the union leaflet naming the organizing committee . Irwin testified
that Mulder had warned Marsich 4 days before Marsich was discharged because Marsich
had solicited a man in the maintenance department Irwin testified he was so informed
by the foreman LMulder] on the day that Marsich was discharged Since Mulder gave no
testimony about such an incident, the undersigned concludes that Irwin was mistaken as
to the time of the warning and that Mulder reported to Irwin on that day the incident
testified to by Mulder, Marsich, and Friedman
42 Marsich testified • "Furthermore , on company time , I say as far as I am concerned, I
am on piece work, I am on my own time " The undersigned has already found that the
no-solicitation rule was properly enforced during working hours regardless of the method
of pay
41 Marsich testified* "It would have been maybe two or three months before I did
solicit union membership . I have had lots come up to my machine and ask for a card to
sign and leave it right there In fact I always had union literature right on my box. Any-
body could see it. Nothing to hide." The evidence disclosed that the respondent was not
aware of Marsich 's soliciting during working hours after he had been warned, and the
undersigned finds that it received no information to such effect except that which was
related on the occasion of his discharge Marsich testified that he never left his machine
for the specific purpose of soliciting but that conversations about other subjects frequently
"wound up on union conversation."
4; The employees were permitted to take one week's pay instead of a vacation if they
wanted to work through their vacation time
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the morning of April 30, 1943, employee Mike Kraus,41 whose duty it was
to put lubricant in the machines, stopped at Marsich's machine. While he
poured the fluid in, Kraus, as was sometimes his custom, carried on a conversa-
tion with Marsich. Kraus started the conversation by mentioning that a man
in the hob department had been drafted, and the talk eventually reached the
subject of the Union. Marsich, according to his testimony, asked Kraus "if he
signed a union card,"" and received Kraus' reply that he was just a common
laborer and could not see that it would benefit him. Marsich did not stop
working to carry on his conversation.
That noon employee Michael Benker told Irwin, according to the latter's testi-
mony, "Why, do you know what Mike Kraus told me this morning? .. . Marsich
is always after him to join the Union, he was after him again this morning."
Irwin called in Kraus, who confirmed Benker's statement, adding, according to
Irwin, "Yes, that is the third or fourth time that has happened " Mulder testi-
fied that Irwin called him in, asked him if he knew about any solicitations in his
department, and when he replied that he did not, Irwin presented him with
the facts as related by Kraus. Irwin told Mulder, according to the former, "I
think you had better go out and let this man go. You have warned him, I under-
stand, yet he is pretty bold, he doesn't act like the rest of the union boys Might
as well let him go." Irwin did not call Marsich in, and he testified that he did
not know whether or not Marsich continued to work while he was talking to
Kraus. Mulder did not talk to Benker or Kraus, but at least half an hour before
4 :00 p. in., quitting time, that day Mulder called Marsich to his office, .and told
him they had "definite proof" that he was soliciting union membership and
that he would have to let Marsich go. Marsich denied the charge and told
Mulder to bring in any one who had accused him of it, but Mulder refused to do
so. Marsich asked when "this was supposed to have taken place," and Mulder
replied, "Today." Marsich said that it must have been Mike Kraus, because he
was the only one he had talked to on the subject of the union that day. Mulder
replied, according to Marsich, that he "couldn't say anything" Marsich
returned to find out if he would get vacation pay, and he talked to Irwin about
his discharge. Marsich asked Irwin to bring in the person that had accused him,
but Irwin refused to do so.47 During the conversation, the subject of union
bulletins came up and evidently Marsich intimated that future issues might
contain matter distasteful to Irwin, for the latter remarked, according to Mar-
sich's testimony, which Irwin did not deny, and which the undersigned credits,
that "if it was to cause any trouble to too many workers he would fire more
union men."
Even if Marsich's question to Kraus as to whether he signed a union card or
joined the union were, in view of his use of the past tense, conceded not to con-
stitute solicitation, Irwin's informant represented it to Irwin as solicitation,
and Irwin so believed it. In the absence of other circumstances, it could not
be said that Irwin acted discriminatorily in discharging Marsich even if the
4e Also spelled Krause in the transcript. Kraus was deceased at the time of the hearing.
4e Employee Verno Herman, who worked back of Marsich, and who overheard the conver-
sation, testified that Marsich asked Kraus, "Did you join the union?" Marsich did not
offer an application card to Kraus Herman testified that Marsich and Kraus "kidded once
in a while about the Union."
47 Considerable evidence was adduced to show that Kraus had been a gambling solicitor.
This evidence was sufficient to convince the undersigned that Kraus had been selling
gambling tickets, but the evidence did not establish knowledge on the part of the respondent.
When Irwin learned of the charge through a union bulletin he had Foreman Bill Sterns
make an investigation and Sterns reported that there was no truth to it. The extent of
Sterns' investigation was not shown and Sterns did not testify.
ILLINOIS TOOL WORKS 1157
information he acted on had been entirely false. It is doubtful whether it can
be said that Irwin acted entirely without prejudice. Had he been entirely un-
prejudiced he would likely have been willing to hear Marsich's explanation and
would have been willing to give Marsich the right to confront his accuser. He
might even have taken into account the fact that Marsich's production was not
interfered with by his conversation with Kraus,` and he might have limited the
penalty to that which was imposed on Kamysz, who received a 2 weeks' layoff,
which was reduced to 5 days. Irwin was asked to explain, this difference in
treatment and he testified : "Kamysz was warned, I think, three times. Marsich
was warned that I know of twice, but Marsich was a bold type. He had a
mind of his own and we knew it. We would ask him to stay by his machine
but it didn't make any difference" He just seedbed to run himself rather than
conduct himself as we wished." If Irwin was prejudiced in this case, as evi-
denced by the disparity of treatment between Kamysz and Marsich, the state-
ment just quoted would indicate that the prejudice was one based on person-
ality rather than union membership. Because the respondent discharged
Marsich for violation of its rule against solicitation during working hours, hav-
ing cause to believe that Marsich was guilty of such violation, and on all the
evidence the undersigned concludes and finds that Marsich was not discharged
because of his union membership or his legitimate union activity.
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
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 statement of the rule prohibiting solicitation as
stated on page 35 of the respondent's book, "You and your Company," unduly
confines the right of the employees as guaranteed in Section 7 of the Act. It
will, therefore be recommended that the respondent be ordered to rescind the
rule insofar as it prohibits union activities in the plant on non-working hours
and that the respondent post notices to that effect.
41 Asked whether his objection was to the interference with production which would come
about from such a conversation or whether his objection was just to solicitation for the
Union, Irwin replied, "That is right. He had been warned several times if he don't want
to work for the Illinois Tool Works the way we want him to work, then, he ain't going to
work there " Asked if his objection would have been just as strong if he had been informed
that Marsich had, under the circumstances, been soliciting for a dance rather than for the
Union, he replied, "We never put up a notice we thought was not eligible, but we do put up
a notice soliciting for the union wasn't `Kosher,' and we just fired our guns " The last part
of this statement suggests that Irwin regarded the notice that had been sent to the em-
ployees in the letter of April 23 as the gun which was fired, and the fact that Marsich was
discharged just a week later indicates that Irwin had decided to back this warning up with
strong action
w Irwin admitted that he had not seen Marsich away from his machine but was just
"taking the foreman's word for it that he was away from his machine more than he should
be." This presumably had reference to the occasion for Mulder's warning to Marsich which
the undersigned has fixed as occurring in November 1942
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has oeen found that the lay-off of Thomas McKenna constituted an unfair
labor practice. It will therefore be recommended that the respondent make
whole said McKenna for any loss of pay which he suffered by reason of his
being laid-off by paying to him a sum of money equal to the amount which he
normally would have earned from the time of his lay-off to the time of his
reinstatement, less his net earnings 60 elsewhere during said period.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Machine, Tool & Die Local 1114-United Electrical, Radio &
Machine Workers of America, C. I. 0, is a labor organization within the mean-
ing of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act
3 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. The respondent has not discriminated with respect to the hire and tenure
of employment of Victor Marsich.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Illinois Tool Works, a corpora-
tion, its officers, agents, successors and assigns shall :
1. Cease and desist from interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Amalgamated Machine, Tool & Die Local 1114-United
Electrical, Radio & Machine Workers of America, C. I. 0, or any other labor
organization, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protdction as guaranteed in Section 7 of the Act.
0 2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act :
(a) Rescind immediately the rule against solicitation insofar as it extends
to the employees' non-working time ;
(b) Make whole in the manner set forth in the section headed "The Remedy"
above Thomas McKenna for any loss of pay he has suffered by reason of his
lay-off, May 4 to 7, 1943, less his net earnings during said period ; 51
(c) Post immediately and in conspicuous places throughout its plant in
Chicago, Illinois, and maintain for a period of sixty (60) consecutive days from
the date of posting, notices -to its employees stating (1) that the respondent
will not engage in the conduct from which it is recommended that it cease and
10 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent which would not have been incurred but for his unlawful
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 Worke + s 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.
51 See fotnote 50, Supra.
ILLINOIS TOOL WORKS 1159
desist in paragraph 1 of these recommendations; (2) that the respondent will
take the affirmative action set forth in paragraphs 2 (a) and (b) of these recom-
mendations, and (3) that the respondent's employees are free to become or
remain members of Amalgamated Machine, Tool & Die Local 1114-United
Electrical, Radio & Machine Workers of America, C. I. 0, and that the respon-
dent will not discriminate against any employee because of membership in
or activity on behalf of that organization ;
(d) Notify the Regional Director for the Thirteenth 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 herewith.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
respondent to take the action aforesaid.
It is further recommended that the allegations of the complaint as to the dis-
charge of Victor Marsich and as to the lay-off of Adam Kamysz be dismissed.
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 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 he 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 therefore must be
made in writing to the Board within ten (10) days from the date of the order
transferring the case to the Board.
JAMES R. HEMINGWAY,
Trial Examiner.
Dated July 4, 1944.