Industrial Metal Fabricators, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1945

63 N.L.R.B. 46 (N.L.R.B. 1945)

In the Matter of INDUSTRIAL METAL FABRICATORS, INC. and FOOD,
TOBACCO, AGRICULTURAL AND ALLIED WORKERS UNION OF AMERICA,
C. I. O.,
Case No. 13-C-2326.-Decided July 31, 1.9.45
DECISION
AND
ORDER
. On February 21, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceedings , 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 the copy of the Intermediate Report
attached hereto. Thereafter , the respondent filed exceptions to the,
Intermediate Report and a supporting brief. Oral argument, in which
only the respondent participated, was held before the Board at Wash-
ington, D. C., on July 19, 1945. The Board has reviewed the rulings
of the Trial Examiner and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the respondent's
exceptions and briefs , and the entire record in the case, and hereby
adopts the findings, conclusions , and recommendations of the Trial
Examiner , with the following modifications 2 and additions :
1. In the discussion of events leading up to the February 1944 lay-off,
the Trial Examiner pointed out that shortly prior thereto Works Man-
ager Callahan and Night Foreman Stathois , while eating in a local
restaurant , observed -a group of the respondent 's employees in the
restaurant openly discussing organization plans. The Trial Examiner
makes no finding, nor do we, that the presence of management repre-
sentatives in.the restaurant was in any way improper ; however, this
evidence concerning their observations is material and relevant insofar
i The charging Union was previously named United Cannery, Agricultural , Packing and
Allied Workers of America, C I 0 Notice is here taken of the change of name effected
since the date of the hearing
2 In Section III B of the Intermediate Report, the Trial Examiner inadvertently referred
to Foreman Simon ' s surveillance instead of Foreman Stathois', and inadvertently stated
that Callahan, instead of McInerney, interrogated Johnson.
63 N. L. R. B., No. 3.
46
INDUSTRIAL METAL FABRICATORS, INC. 47
as it establishes that the respondent had knowledge of the organiza-
tional activities of certain employees who shortly thereafter were in-
cluded in the lay-off.
2. In attacking the Trial Examiner's finding of discrimination with
respect to the lay-off of the seven welders named in the complaint,
counsel for the respondent attached much significance to the fact that
at the time in question the respondent also laid off employees at one
of its other plants, and contended, in effect, that the same standards,
or lack of standards, used in selecting those employees for lay-off were
used in the selection of the seven welders in question. However, there
is no evidence in the record concerning the reasons for selecting any
particular employee for lay-off other than those employees named in
the complaint. As to them, we agree with the Trial Examiner that
the evidence adduced by the respondent fails to establish that they
were selected on a non-discriminatory basis. On the other hand, there
is persuasive evidence in the record, and we find, like the Trial Ex-
aminer, that Joseph, Arturi, Des Biens, Ferek, Godbey, Tediski, and
Rosenband were discriminatorily selected for lay-off, and later denied
reinstatement, because of their organizational activity. We further
find, like the Trial Examiner, that Ural R. Pool was discriminatorily
discharged because of his organizational acitvity.
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, Industrial Metal Fabrica-
tors, Inc., Chicago, Illinois, and its officers, agents, successors, and
assigns, shall;
1. Cease and desist from :
(a) Discouraging membership in Food, Tobacco, Agricultural and
Allied Workers Union of America, C. I. 0., or any other labor or-
ganization of its employees, by discharging, laying off, or refusing
to reinstate or reemploy any of its employees, or by discriminating
in any other manner in regard to their hire and tenure of employment,
or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Food, Tobacco, Agricultural and
Allied Workers Union of America, C. I. 0., or any other labor organ-
ization, to bargain collectively through representatives of their own
choosing, and to engage in concerted 'activities, for the purpose of
collective bargaining or other mutual aid or protection, as guaran-
teed in Section 7 of the Act.
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
, (a) Offer Edward Joseph, Julius Des Biens, Adolph Arturi, Wil-
liam Godbey, Albert Ferek, Maurice Rosenband, and Ural R. Pool
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other
rights and privileges;
(b) Make whole Edward Joseph, Julius Des Biens, Adolph Arturi,
William Godbey, Albert Ferek, Maurice Rosenband, and Ural R. Pool
for 4ny loss of pay they have suffered by reason of the'respondent's
discrimination against them, by payment to each of them of a sum
of money equal to the amount he normally would have earned as
wages from the date of the respondent's discrimination against him to
the date of the respondent's offer of reinstatement, less his net earn-
ings during such period ;
(c) Upon application by John Tediski within ninety (90) days
after his discharge from the armed forces of the United States, offer
him immediate and full reinstatement to his former or a substantially
equivalent position, without prejudice to his seniority or other rights
and privileges;
(d) Make whole John Tediski for any loss of pay he has suffered
and may suffer by reason of the respondent's discrimination against
him by payment to him of a sum of money equal to the amount he
normally would have earned as wages during the periods : (1) from
the date of his lay-off to the date upon which he entered the armed
forces of the United States, (2) from a date five (5) days after his
timely application for reinstatement, if any, to the date of the offer
of reinstatement by the respondent, less his net earnings during these
° periods, as set forth in the section of the Intermediate Report entitled
"The Remedy";
(e) Post at its plant at 63rd Street and Oakley Boulevard, Chicago,
Illinois, copies of the notice attached to the Intermediate Report
herein, marked "Appendix A".3 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;
3 Said notice , however, shall be, and it hereby is, amended by striking from the first para-
graph thereof the words "Recommendations of a Trial Examiner " and substituting in lieu
thereof the words "A Decision and Order."
INDUSTRIAL METAL FABRICATORS, INC. 49
(f) Notify the Regional Director for the Thirteenth Region (Chi-
cago, Illinois) in writing, within ten (10) days from the date of this
Order, what steps the respondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. Gustaf B. Erzcleson, for the Board.
Mr. Thomas J. Downs, of Chicago, Ill., for the respondent.
Mr. Joseph Carfero, of Chicago, Ill, for the Union.
STATEMENT OF THE CASE
Upon a second amended charge filed April 26, 1944, by Food, Tobacco, Agri-
cultural and Allied Workers Union of America, C. I. 0., herein called the Union,
the National Labor Relations Board, herein called the Board, by the Regional
Director for the Thirteenth Region (Chicago, Illinois), issued its complaint
dated November 18, 1944, against Industrial Metal Fabricators, Inc., Chicago,
Illinois, herein called the respondent, alleging that the respondent had engaged
in and was engaging in unfair labor practices within the meaning of Section
8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act,
60 49 Stat. 449, herein called the Act. Copies of the complaint together with notice
of hearing thereon were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged ill substance
that the respondent: (1) on or about February 5, 1944, terminated the employ-
ment of Julius Des Biens, Adolph Arturi, William Godbey and Edward Joseph;
on or about February 7, 1944, terminated the employment of John Tediski, Albert
Ferek, and Maurice Rosenband ; and on or about March 24, 1944, terminated
the employment of Ural R. Pool, and thereafter failed and refused to reinstate
them, because of their union membership and activities ; (2) from on or about
January 1, 1944, urged, warned and threatened employees not to join or assist
the Union, kept under surveillance the activities and meeting places of the Union,
and interfered with, restrained, and coerced its employees in the exercise of
their rights freely to express themselves by secret ballot in an election conducted
by the Board for the purpose of choosing representatives; and (3) by the fore-
going conduct engaged in unfair labor practices within the meaning of Section
8 (1) and (3) of the Act.
Prior to the hearing, the respondent filed its answer admitting the jurisdic-
tional allegations of the complaint and admitting also that on or about the dates
set forth in the complaint the respondent terminated the employment of the
employees therein specifically named, but denying the commission of any unfair
labor practices.
Pursuant to notice, a hearing was held on December 19, 20, 21, and 22, 1944, at
Chicago, Illinois, before the undersigned, the Trial Examiner duly designated by
the Chief Trial Examiner. The Board and the respondent were represented by
counsel and the Union by a lay representative. Full opportunity to be heard, to
examine, and cross-examine Witnesses, and to introduce evidence bearing on the
issues was afforded all parties. At the close of the Board's case, the undersigned
granted the motion of the Board to conform the pleadings to the proof with re-
spect to apparent misspelling of names and errors of dates, as well as the Board's
further motion to amend paragraph numbered 6 of its complaint by alleging that
in addition to the other conduct allegedly constituting unfair labor ; practices
within the meaning of Section 8 (1) of the Act, therein set forth, the respondent
questioned its employees regarding their union affiliations and activities. At the
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
close of the hearing, the undersigned took under advisement a motion of the
respondent to dismiss the complaint for lack of proof. The motion is hereby
denied. At the close of the hearing, counsel for the Board and the respondent
argued orally before the undersigned. None of the parties availed themselves
of the privilege, extended to them, of filing briefs with the undersigned.
Upon the entire record of the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THR BUSINESS OF THE RESPONDENT
The respondent, an Illinois corporation, operates four plants located in Chicago,
Illinois, at the following addresses : 63rd and Oakley Boulevard ; 78th Street and
Vincennes ; 24th and Ashland Avenue, and 76th Street and Vincennes. The plants
are separated only because of the inability of the respondent to secure one large
plant of the size necessary to perform its production. The respondent is engaged
in the manufacture of naval landing crafts, pontoons, tank parts, and diesel en-
gine parts. At the 63rd and Oakley Boulevard plant, the only plant involved ins,
this proceeding, the respondent manufactures naval pontoons only. The materials
used by the respondent are sheet steel, floor plates, oxygen welding rods, small
forgings, and other miscellaneous material. During the calendar year ending
December 31, 1943, the respondent purchased raw material having a value in
excess of $1,000.000, of which 90 percent was secured from sources outside the
State of Illinois. During the same calendar year, the respondent's net sales
exceeded $1,000,000, and all of its products were shipped to points outside the State
of Illinois. The respondent admits that it is engaged in commerce within the
meaning of the Act.'
II. THE ORGANIZATION INVOLVED
Food , Tobacco, Agricultural and. Allied Workers Union of America , is a labor
organization affiliated with the Congress of Industrial Organizations , admitting
to membership employees of the respondent?
III THE UNFAIR LABOR PRACTICES'
A. Chronology of events
1. Introduction
The respondent at its 63rd and Oakley Boulevard plant, herein called the
Oakley plant, employed as of February 1, 1944, 108 production employees of whom
approximately 65 percent were welders. The supervisory staff of the Oakley
plant was composed of Steve Simon, plant superintendent, and Mortimer McIner-
ney and Thomas Statbois, foremen, respectively, of the day and night shifts.
Above them was Richard D. Callahan, acting works manager of the respondent,
whose jurisdiction extended to all plants of the respondent.
Until on or shortly prior to January 31, 1944, no attempt appears to have been
made to organize employees of the respondent at its Oakley plant.
The findings as to the respondent ' s business are based upon a stipulation of the parties.
z See footnote 1 of the Decision and Order, supra.
The following findings are based on admitted facts or credible testimony which, except
where otherwise indicated, was not substantially contradicted.
INDUSTRIAL METAL FABRICATORS, INC.
2. Commencement of Union organization
51
About February 1, 1944, a number of employees became interested in organizing
the Oakley plant. Foremost among them were Edward Joseph, William Godbey,
Julius Des Biens, Adolph Arturi, John Tediski, Albert Ferek, and Maurice Rosen-
band, all welders These employees began to discuss union organization openly
among themselves and with their fellow employees at the plant Godbey, who
had served as a union steward at Campbell Soup Company where he had been
previously employed, sought the assistance of John Gallacher, the president of
the Union's local organization at that Company. Gallacher made arrangements
with John Carfero, the Union's international representative, to meet with em-
ployees of the respondent A meeting was arranged to be held at the Pere
Marquette, a public restaurant located in the vicinity of the plant, during the
luncheon period of the night shift, on the evening of February 3, 1944'
The restaurant meeting was attended by Carfero and Gallacher, representa-
tives of the Union, Murel Hardy, a former employee of the respondent, Joseph,
an employee on the day shift whose employment with the respondent had that
afternoon been terminated under circumstances more fully narrated below, and
by the following employees of the respondent's night shift: Godbey, Des Biens,
Arturi, Tediski, Harrison, and Roethenbuchler. The group sat at a table close
to the cashier's desk and, while eating, engaged in a discussion concerning organi-
zational plans. Carfero had brought with him a number of union application
cards, and these, together with a pad on which Carfero was making notes, were
placed on the table in plain sight of all. While the group was thus engaged,
Works Manager Callahan and Night Foreman Stathois, who had been eating at
tl:e same iestaurant at a table some distance removed, left the restaurant, and
as they paid their checks, paused and observed the group in question. Although
it was not uncommon for Stathois to eat at the Pere Marquette restaurant (luring
the luncheon hour of the night shift, Callahan's presence at the restaurant dur-
ing the evening lunch hour was unprecedented.5
On the following afternoon, February 4, 1944, a further meeting was held,
this time at the union hall, at which union application cards were distributed
and plans were made for the solicitation of members. This meeting was attended
by substantially the same group as had attended the restaurant meeting and, in
addition, by Ferek and Rosenband After the meeting, according to the credited
testimony of Rosenband, he and others who had been in attendance at the meeting,
drove to the plant in a group, stationed themselves at strategic points about the
plant during the change of shifts, and solicited the membership of employees
who were either entering or leaving the plant °
In the locker room, before the commencement of the night shift that evening,
Tediski and Ferek engaged some fellow employees in a discussion concerning
the meeting which they had attended that afternoon. While thus occupied, they
were approached by Plant Superintendent Simon, who in an angry toile told
them, "Hereafter you fellows do your organizing on your own time, not on the
company's time " When it was pointed out to Simon that the men were not
4 The meeting was originally scheduled for February 2, but was postponed when it was
discovered that the restaurant was closed on Wednesday
6 The findings concerning the restaurant meeting are based on the testimony of Gallacher,
Carfero, Godbey. Joseph, Des Biens, and Arturi Callahan, while testifying, admitted that
he was present with Stathois in the restaurant on the night of the meeting, that previously
he had never had occasion to eat with Strathois in the evening, that as he left the restaurant
he observed Carfero and the others at the table, and that he noticed that there were "some
papers" on the table He denied , however , that he had any advance knowledge that an
employee meeting was scheduled for the restaurant that eveninz
The day shift ended at 5 . 00 p in , the night shift began at 5 : 30 p m.
662514-46-vol. 63-5
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then on company time, Simon said, "Well, hereafter you will start at 5: 30 right
on the head and work until the last minute ." The regular working hours of the
night shift were from 5: 30 p. in. to 3: 30 a. in. However, in order to enable the
employees to meet a trolley car which passed the plant at about 3:30 a, in., there
had for some time existed an -informal understanding with management under
which employees were permitted to commence work at 5: 20 p. in. and to leave
at 3: 20 a. in. Under the circumstances Ferek interpreted Simon's last quoted
remark as a withdrawal of a privilege theretofore accorded the employees, in
reprisal for their union activities. This construction, on its face reasonable,
was undisputed by the respondent and it is so found by the undersigned.'
On Sunday, February 6, 1944, at a general meeting held at (the union hall,
attended by approximately 30 to 40 employees , Rosenband was elected shop
chairman of the Union.
3. The February lay-off
While union organization was thus proceeding , the respondent determined to
reduce its production of pontoons and its employee complement at its Oakley
and Ashland plants. On February 3, 1944, Callahan issued to the superintendents
of these plants a memorandum reading as follows :
This will be 'your authority to reduce your pontoon production to a daily
average of not more than 50 pontoons per day
This change is necessary in order that we may have sufficient steel to
operate continuously throughout the year and avoid shut downs while waiting
for steel.
I will expect a substantial reduction in working personnel within the next
two days and no new help is to be hired unless absolutely necessary for
replacement.
Following the issuance of this memorandum and between February 3 and
February 7, 1944, the respondent for the assigned reason, "reduction in force,"
laid off 16 employees, of whom 10 were welders and the balance principally
laborers and helpers. As a result of these lay-offs, coupled with a number of
terminations attributable to normal turnover factors such as voluntary quittings
and discharges for absenteeism, the number of employees on the Oakley payroll
was reduced within a week from approximately 105 to approximately 85, a
a figure which thereafter remained constant for the balance of the month e
Of the 10 welders thus selected for lay-off, 7-Joseph, Arturi, Des Biens, Ferek,
Godbey, Tediski, and Rosenband,-as above noted, "had taken a prominent role
in the initial union organizational work.
Joseph, the first of the group in question to be terminated, was laid off at
the close of the day shift on February 3, 1944. Don Johnson, at that time
employed by the respondent as a welder on an operation known as the water
test, testified that about 10: 30 a. in. on that day, before there had been any in-
dication that Joseph was to be laid off, he (Johnson) had requested Foreman
McInerney to assign Joseph permanently to the water test crew B McInerney
7 The findings in this paragraph are based upon the testimony of Ferek , which was un-
denied by Simon , who testified as a witness for the respondent . Tediski was serving in
the United States Navy at the time of the hearing and did not appear as a witness.
8 The respondent ' s records reflect a substantially equivalent reduction in personnel at its
Ashland plant during that period.
9 Joseph, whose usual assignment was as a welder on an operation known as corner straps,
was working with the water test crew on the day of his lay-off. There was a vacancy in
that position at the time. According to Johnson , he had been frequently required to
break in new men on that job, and rather than be called on to do so again with a consequent
slow down in production , had requested the services of Joseph , who had proved himself
qualified for that particular job.
INDUSTRIAL METAL FABRICATORS, INC. 53
told Johnson that he would take up the latter's request with Simon. Shortly
thereafter McInerney advised Johnson that the proposed permanent assignment
of Joseph to the water test could not be arranged, that "Ed Joseph is through-
his time is made out and at the end of the day he is through so far as the
company is concerned" In response to Johnson's inquiry, "Why, what is the
matter?", McInerney replied, "Union agitation""
Arturi, Des Biens, and Godbey were laid off on Saturday, February 5, 1944,
and Tediski, Ferek, and Rosenband, on February 7, 1944. As to Roethenbuchler
and Harrison, the only 2 employees present at the restaurant whose names have
not heretofore been accounted for in the February lay-off, it was stipulated that
the respondent's records list these employees as having been laid off on February
5, 1944 and as having been reinstated on February 7, 1944"
Roethenbuchler and Harrison did not testify, and the record is not clear as
to the circumstances leading to their reinstatement following their lay off."
The respondent's defenses concerning the termination of employment of the
7 employees named in the complaint who were included in the February lay-off
will hereinafter be considered, and findings made thereon.
4. The events following the February lay-off
On February 12, 1944, the Union demanded recognition ;19 on February 14,
1944, it filed a representation petition pursuant to Section 9 (c) of the Act ; and
on February 24, it and the respondent entered into an agreement for a consent
election to be held on March 2, 1944.
Not long after the Union's demand for recognition, the respondent called a
meeting of its night shift employees during working hours to hear an address
by Works Manager Callahan." Callahan opened the meeting by telling the
assembled employees that he had heard they wanted to organize a union and that
an election had been requested. He stated that if a majority of the employees
"Although Simon testified that McInerney had never contacted him concerning Joseph,
McInerney was not called by the respondent as a witness , and Johnson ' s testimony con-
ceining his conversation with McInerney , which stands uncontradicted , is credited by the
undersigned Johnson was not a member of the Union According to his testimony, he
had refrained from joining the Union or from taking any part in its activities , although
he was in sympathy with its objectives , because he was desirous of protecting his job and
"they [the employee organizers ] were conducting it absolutely too open." Johnson, from
his demeanor and over -all testimony , impressed the undersigned as a credible witness. In
weighing his testimony , consideration has been given to the fact that some 10 weeks after
the incident related, Johnson's employment with the respondent was terminated following
a personal quarrel with Simon.
11 In totalling the number of employees laid off during the period in question , the under-
signed has not included Roethenbuchler and Harrison . These employees were welders.
12 Simon, who, according to his testimony, made the selection of persons to be laid-off
and directed the preparation of the lay-off notices, denied that he had ever selected
Roethenbuchler and Harrison for lay-off , but at the same time was unable to explain the
entries on the respondent 's records concerning these employees . It was Rosenband's
testimony that Harrison and Roethenbuchler, unlike others present at the February 3
restaurant meeting and at the union meeting the following day, were restrained by fear
from openly soliciting membership among the respondent ' s employees.
13 When Cafero, according to his testimony, advised Callahan that the Union represented
a majority and suggested an election, Callahan stated that he could not understand why
the employees should want to choose the Union and.suggestedthat an A F. of L. union
be accorded a place on the ballot.
14 The record does not disclose whether a similar meeting of day shift employees was
called, nor does it disclose the precise date of the night shift meeting. It is clear from,
the testimony that the meeting occurred some time after the Union made its representation
claims known and before the election was held ,From the content of Callahan's remarks
it would appear that the ,date of the meeting may more particularly be fixed as some time
after the petition was filed but before the execution of the consent election agreement.
54 DECISIONS OF.NATIONAL LABOR RELATIONS,BOARD
wanted a union, the respondent had no objection. He went on to' say that he
himself had been a member of two C I 0 locals and at that time was still a
member of an A. F. L. local; that it had been his experience that the advent of a
union in a plant did not eliminate dissatisfaction among the employees; that he
had found that after a union was elected there was still discord, strikes, and
slow downs ; that as a result he himself had suffered through failure to get a
full day's pay ; and that he did not want to see that happen in the respondent's
plant. In the course of his comments, Callahan expressed surprise that the
employees wanted any union and particularly the petitioning Union to which lie
disparagingly referred as a "tin can" union 15 He gratuitously volunteered to
bring in , if the men wanted it, an A. F. of L union although there had been no
prior A F. of L organizational activities in the plant. Callahan in his remarks
pointedly noted that the Union's prevailing wage scale for welders was lower than
the rates then being paid by the respondent, and added that if the Union were
designated the bargaining agent, the respondent could normally be expected
under such circumstances to apply to the War Labor Board for a downward
adjustment of its welders' rates so as to bring them into line with that of other
shops in the locality which were then under contract with the Union Callahan
advised the assembled employees that he had called the meeting primarily for
the purpose of ascertaining and adjusting whatever grievances the employees
might have against the respondent, and called upon the employees to express
themselves on this subject. After a number of employees had stated their
grievances, Callahan assured them that their complaints would be remedied by
the respondent. Before leaving, Callahan suggested that the employees hold
a meeting of their own in the plant to decide whether they desired to be repre-
sented by the Union or by some A. F of L union, or, as a third alternative in
lieu of any union, by a shop grievance committee to be elected by the men in the
plant, which could meet periodically with management for the purpose of handling
grievances.16
After Callahan left the meeting room, the assembled employees elected a
chairman and proceeded to take a vote on the propositions suggested by Callahan.
In the discussion which preceded the vote, Ural R Pool, who the Board alleges
was subsequently discharged for union activities, spoke in favor of the C I 0.,
and, when a standing vote was taken, only he and one other voted for affiliation
with the C. I. O. A few of the employees present declared themselves in favor
of an A. F of L Union. Later that day, pursuant to the suggestion of Callahan,
the employees elected a shop grievance committee. The names of the committee-
men were posted on the bulletin board and remained posted for about 2 weeks,
but the grievance committee never in fact functioned as such.
There is evidence that in the ensuing period preceding the election, super-
visory employees of the respondent interested themselves in the union activities
of the employees, questioned employees concerning their union affiliations and
activities, engaged in surveillance of the Union meeting hall, and sought to
convey the impression among employees that it had moans of knowing just what
employees supported the Union. Thus, Johnson testified without contradiction
is The "tin can" appellation had reference to the fact that the Union was the bargaining
agent at Campbell,Soup Company.
16 The findings made herein concerning Callahan ' s address to the employees are based
upon a synthesis of the testimony of Johnson , Pool , and Callahan Callahan , while testi-
fying, did not elaborate on the subject of his remarks beyond pointing out that he advised
the employees that they were free to join any union they desired and that his reasons
for addressing them were based upon his previous experience with union organization.
Callahan , however , did not deny that in the course of his remarks he made the other
statements found above and referred to in the testimony of Johnson and Pool whom the
undersigned credits.
INDUSTRIAL METAL FABRICATORS, INC. 55
that about a week before the election he was asked point blank by McInerney
Whether or not he supported the Union. Pool, testified, likewise without contra-
diction, that on one occasion shortly prior to the election McInerney told him
that "if the boys ever voted a union in here they would make an awful mis-
take." According to Pool, on another occasion while he was talking to a group
of employees during lunch time, Callahan approached him, inquired how the
Union was progressing, and asked him if he would become union steward if the
Union were elected.14 On the Sunday preceding the election, a meeting was held
at the Union hall, located a considerable distance from the plant. Prior to the
meeting, Rosenband, according to his undemed testimony, observed Foreman
Stathois sitting in his automobile which was parked at the curb facing the en-
trance of the Union hall, about 10 feet removed from it. Stathois remained
parked in that position for a period of about 15 or 20 minutes. Stathois was
not called as a witness, and the respondent made no effort to explain Stathois'
presence in that vicinity at the time. In the absence of any such explanation,
it is reasonable to infer, and the undersigned finds , that Stathois was there to
gather information concerning the union membership and activities of the re-
spondent's employees, or at least to create that impression. This inference is
supported by the undenied testimony of Johnson to the effect that on an occasion
shortly prior to the election, McInerney in a conversation with Johnson and an
employee named Foley, stated that the respondent knew just what employees
had attended the union meeting.
At the consent election held on March 2, 1944, the Union was defeated by a
vote of 66 to 46. Three weeks thereafter, Ural R Pool, who, following the
February lay-off had become the leading and most outspoken advocate of the
Union in the plant, was discharged.
B. Conclusions as to interference, restraint, and coercion
It is clear, especially in the light of the respondent's discrimination against
union adherents as shown below, but also independently thereof, that from the
outset of the organizational drive until the consent election the respondent
engaged in a course of conduct designed to discourage self-organization. This
was first openly indicated by Superintendent Simon's statement to employees
Tediski and Perek withdrawing certain privileges theretoford accorded them
in reprisal for their organizing activities on company property albeit, on their
own time. Callahan's address to the employees, shortly after the Union had
demanded recognition and had petitioned for an election was plainly calculated
to undercut the influence of the Union and to interfere, restrain, and coerce the
employees in the exercise of their right freely to express themselves by secret
ballot in an election conducted by the Board for the purpose of choosing repre-
sentatives. Contrary to the contention of the respondent, Callahan in his ad-
dress did not confine himself to expressions of personal opinion nor did he remain
within the area immunized by the constitutional guarantee of free speech. Cal-
lahan's speech, apart from disparaging union organization generally and the
Union in particular, contained an open threat of economic reprisal in its reference
to the probability of the respondent applying to the War Labor Board for a
wage-reduction should the employees select the Union as their bargaining repre-
sentative. Beyond that, Callahan's unsolicited invitation to the employees to give
17 Callahan , while testifying, admitted this incident but testified that his remarks were
made in jest and that this was understood by all present. Pool, when he testified on
rebuttal , did not deny Callahan ' s characterization of the incident. Under the circum-
stances, this incident is relied on only to show the respondent 's knowledge of Pool's out-
standing role in union organization during that period.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consideration to an A. F. of L. union or to a shop grievance committee represented
not only a patent effort to split the organizational ranks of the employees but
was also an invasion by respondent into the field of employee organization
which the Act reserves to employees alone. Of like character was Callahan's
suggestion that the employees conduct a poll of their own on company time and
property to determine their desires as to representation, a suggestion made at
a time when the Union was maintaining that it represented a majority and had
pending before the Board a petition for investigation and certification of repre-
sentatives. Such a poll, conducted on company time and property and following
Callahan's speech which evidenced respondent's hostility to the Union was
scarcely calculated to reveal the true strength of the Union, and, as must have
been obvious to Callahan, any show of weakness in employee adherence to the
Union as reflected in the poll would have the necessary effect of discouraging
membership in the Union. Also forming part of the pattern of unlawful and
coercive conduct engaged in by the respondent during the period in question
were Foreman Simon's surveillance of the Union meeting hall, Foreman Mclner-
ney's comment to Pool that it would be "an awful mistake" to select the Union,
his comments to employees Johnson and Foley which served to foster the impres-
sion among employees that the respondent had means of ascertaining the identity
of employees who attended union meetings, and the interrogation by Callahan of
Johnson concerning the latter's union affiliation,
Contrary to the contention of the respondent, the undersigned is of the opinion
and finds that the coercive effect of the respondent's conduct as a whole, as
noted above, was not neutralized by Callahan's statement in his address to the
employees that the latter had a right to join any union and to vote as they pleased.
It is found that the statements and acts of the respondent's supervisory em-
ployees outlined above constituted integral parts of a course of conduct, engaged
in by the respondent, which was designed to defeat the Union's organizational
efforts and which interfered with, restrained, and coerced the employees in the
exercise of the rights guaranteed in Section 7 of the Act.
C. Contentions and conclusions concerning discrimination in the February lay-off
The role played by Joseph, Arturi, Des Biens, Godbey, Tediski, Ferek, and
Rosenband during the nascent stage of organization which immediately preceded
their lay-off has been narrated above. It has been noted that these employees
conducted their activities openly and without attempt at concealment. None
of the supervisory employees who testified denied that he was aware of the union
interest and activities of these employees and on the evidence recited above the
undersigned finds that the respondent in fact had such knowledge. Thus, in
the case of Joseph the respondent's knowledge is shown by McInerney's state-
ment to Johnson that Joseph was about to be laid off for "union agitation".
Godbey, Des Biens, Arturi, and Tediski (as well as Harrison and Roethenbuchler,
who, although also laid off, were subsequently reinstated) were present at the
restaurant meeting at the Pere Marquette which was observed by Callahan
and Stathois and which it is found was known by them to be a Union meeting.
Ferek, together with Tediski, was reprimanded by Simon when discovered en-
gaged in union solicitation in the plant. Rosenband, apart from engaging openly
in union solicitation about the plant, was elected chairman at an open union
meeting on the day preceding his lay-off, a fact which as the undersigned finds,
must be inferred to have come to the attention of the respondent, particularly
so in the absence of a denial and in the light of the respondent's demonstrated
predisposition to concern itself unduly -with its employees' self-organizational
efforts as reflected by the other evidence in the record referred to above.
INDUSTRIAL METAL FABRICATORS, INC. 57
It is the contention of the respondent that the February lay-off which affected
adversely the 7 employees named, although occurring at a crucial stage of the
Union's organizational effort, was prompted entirely by, a necessary curtailment
implant operations. The Board adduced no evidence to show, and the record
does not establish, that the curtailment in operations and consequent reduction
of personnel was in fact actuated by other than legitimate economic reasons.
However, the necessity for reduction does not preclude the possibility of discrimi-
nation against the employees because of their union membership and activity.
It is the position of the Board that the respondent, by including among those
selected for lay-off the 7 employees then most prominently identified with the
Union's organizational campaign, utilized the curtailment as a means of thwart-
ing the Union in the initial stages of its organization. The principal question to
be resolved, therefore, is whether the respondent in selecting the 7 complainants
for lay-off did so in consonance with its business requirements and practice or
whether it was motivated in whole or part by considerations related to their
union membership or activittes.
The competency of the 7 welders in question to perform the jobs to which they
were assigned at the time of the lay-off was not questioned by the respondent.
Each of them was earning the top rate for welders in the plant, a rate paid to
"ace" welders only. As appears from the testimony of Simon, there was at
least an. equal number of welders not included in the lay-off who were earning a
lower rate. That a welder's rate of pay in the respondent's judgment was corre-
lated to his ability and general qualifications was in effect admitted by Simon
who testified that in determining what welders were entitled to a top rate, the
respondent took into consideration the welder's ability, ambition, and willingness
to work. In line of seniority, the 7 welders in question, according to the un-
contradicted testimony of Johnson, were among the older and more experienced
welders in the plant, a circumstance which evoked considerable comment in
the shop at the time of their lay-off.'8 It is noteworthy that of the 3 welders who,
in addition to the 7 named in the complaint, were laid-off at approximately the
same time, two, Hallas and Chambers, although not the lowest in point of
seniority, were relatively new employees, having been employed, according to
Simon, for approximately a month, while the third, Radacovitz, was laid off,
as Simon also testified, primarily because of excessive absenteeism. Admittedly,
the respondent in effecting the February lay-off wholly ignored considerations of
plant seniority. However, as the record establishes, on prior occasions of lay-off,
the respondent likewise had not adhered to any strict seniority policy. Under
the circumstances, the seniority status of the 7 employees in question cannot be
viewed in determinative of the issue. Nevertheless, the respondent's choice for
lay-off of older and more experienced employees, particularly when coupled with
itheir recognized ability as reflected by their top wage rates, is a factor not
ordinarily overlooked altogether by employers in like situations, and is one,
therefore, which must be 'considered and appraised in the over-all picture in
determining the bona fides of the respondent's action.
is The respondent did not produce documentary or other proof to indicate the exact seni-
ority status of the employees in question. The record shows that Joseph was first em-
ployed in July 1943, Godbey in February 1943, Des Blens, in March 1943, Tediski and
Ferek, in September 1943, Arturl in June 1943, and Rosenband in October 1942. The
respondent ' s employment and termination records in evidence, which cover the months of
January through March 1944 only, show that the respondent was afflicted with an unusually
high turnover rate. Thus, the records show that during the month preceding the lay-off
the respondent at its Oakley plant had a turnover of approximately 40 production em.
ployees of all classifications . During that same period approximately 10 welders were hired
and 15 either quit or were discharged.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Simon testified that it was he, as plant superintendent, who made the final
decision on the selection of the men to be laid off. According to him, it was his
usual practice when lay-offs were to be effected to consult with his foremen and
together with them choose an employee "from each position, one here and one
there, or two here and two there, wherever we thought we could release the
men without hurting ourselves too much in one particular spot." As to whether
he consulted his foremen in this instance, Simon's testimony was vague and
contradictory; at some points in his testimony he indicated that he did; at
others that he did not. Simon asserted, while testifying, that he alone made the
final lay-off selections without instructions from Callahan or any one else higher
on the management scale. Casting grave doubt on the authenticity of this asser-
tion, however, is Simon's further testimony that although he had given no
instructions to the office clerk to prepare lay-off notices for Harrison and
Roethenbuchler, such notices along with several others (which might have
included some of the complainants-the witness could not recall), nevertheless,
had been submitted to him for signature, as well as, Simon's inability to explain
on whose direction such lay-off slips were prepared.
Concerning his method of selection and the general criteria which he followed,
in the February lay-off, Simon testified :
Well, first I went through, more or less on production standards for each
employee that was given to me, and then I took into consideration absen-
teeism, and how important the man was to me, in other words how many
jobs he could do in the shop besides the one he was actually on.
Simon did not indicate in his testimony what the production records disclosed,
and, when cross-examined on this point, testified that after consideration he had
found the records to be inconclusive, had ignored them, and had "decided finally
on how much time the fellows..took off on their own". The respondent failed to
produce the production records to which Simon made reference. Likewise, the
respondent adduced no evidence to show that the complainants in this case in fact
had poor attendance records or that their work absences exceeded that of
employees retained.30
When pressed for reasons for his selection of the particular employees named
in the complaint, Simon's testimony was couched in general terms, was mainly
conclusionary in character, and was unsupported by specifications of detail.20
Simon testified that he selected Arturi and Godbey because they apparently dis-
liked to go "from job to job"; that he selected Joseph, Des Biens, Tediski, and
Ferek because, although competent to perform the jobs to which they were
assigned at the time of their lay-off, they were essentially . "one job" men, incapa-
ble of being shifted around from job to job ; and that he selected Rosenband with
the expectation of recalling him because "I [Simon] did not think he [Rosen-
band] was no exception, and we had some boys a whole lot better than he was
and more willing to s1o anything that was assigned to them". Simon cited no
specific instance when either Arturi or Godbey bad ever refuses] to accept a job
assignment, On cross-examination he admitted that Arturi had never expressed
to him any unwillingness to accept a change of job assignment and stated that
he had formulated his conclusion solely on the basis of his impression of Arturi's
10 The record does not indicate the precise number of absences of many of the employees
involved except Rosenband who on rebuttal testified that in 1943 lie was absent only 3 days
because of the Jewish holidays, and in 1944 lost only one day. Joseph and Godbey who
also testified on rebuttal denied that they had been excessively absent, but did not specify
the precise number of days lost by them.
20 The respondent, on direct-examination of its witnesses, made no effort to justify its
selection of the particular employees involved This testimony was adduced on examina-
tion by the undersigned and on cross-examination.
INDUSTRIAL METAL FABRICATORS, INC. 59
attitude 21 Godbey, although candidly admitting that he had on a few occasions
reminded Simon that the company physician had given instructions that he
was not to be assigned to certain jobs where there was too much smoke, testified
credibly that he had nevertheless worked willingly on practically every welding
job in the plant and had never refused a job assignment Concerning the em-
ployees referred to by Simon as "one job" men, there is affirmative evidence in
the record, not specifically denied by witnesses for the respondent and credited
by the undersigned, that each of these employees had in fact worked on a
variety of different welding jobs during the course of his employment.2' Rosen-
band testified credibly and without contradiction that no supervisory employee
had ever given him reason to believe that his work was inferior to that of other
employees ; on the contrary, some months earlier when he had contemplated
entering the armed services, the plant superintendent had written a letter prais-
ing his work highly and emphasizing particularly his ability to use every type of
welding equipment in the plant. As noted above, Rosenband was one of the
oldest welders in the plant; it is noteworthy in that connection that although
there were a number of general plant lay-offs during the year preceding his
termination, he had always been retained 29 The respondent adduced no evidence
to establish that as a result of its curtailment of operations in February, there
was no longer any need for the complainants in the particular jobs to which
they had been theretofore assigned; indeed there is affirmative evidence indi-
eating that at least in some instances the contrary was true 24 Nor did the
respondent make any showing that the retained employees were better qualified
than those who were laid off to perform a variety of jobs or otherwise to perform
the welding operations that the curtailment in operations would entail.
Further reflecting on the respondent's motive in making its lay-off selections
is the fact that none of the employees involved in the February lay-off were con-
tacted by the respondent thereafter when work became available.' As appears
from the testimony of both Callahan and Simon, the respondent on the occasion
of prior lay-offs had followed the practice of communicating with and recalling
laid off employees when their services were again required. Although no new
welders were hired in February 1944, the respondent during March 1944 hired at
its Oakley plant 4 new welders and, in addition, hired a larger number of new
welders at its other plants. The employment records of the respondent for the
months following March 1944 are not in evidence, but it is undisputed that during
n Arturi did not appear as a rebuttal witness, but Godbey, who works alongside Arturi
"90 percent of the time," testified credibly that he had never observed Arturi refuse a
change of job assignment or indicate by expression or otherwise any resentment on that
score.
12 This appears from the testimony of Joseph , Des Biens , Ferek , and Johnson
11 The record indicates that Arturi , Des Biens , and Joseph had also been retained during
prior general lay-offs . Tediski and Ferek , who were hired in September 1943, were
retained during a general lay-off which occurred during the following month.
24 It appears , for example , that Des Biens and Joseph , working on opposite shifts, were
regularly assigned to work on crews which had but one welder . Simon admitted that this
job was not abolished as a result of the lay-off.
21 The case of Edward Joseph , however , requires special mention In the latter part of
September, 1944, Joseph was referred to the respondent by the United States Employment
,Service and was hired as a welder at the respondent ' s Ashland plant where he was assigned
to do welding on tank parts. In order to qualify for the position , Joseph was required
to pass a United States Army welding test. Joseph failed to pass, and was consequently
discharged on October 4, 1944. At the Oakley plant, Joseph had worked on pontoons, and
while on the job had taken and passed the qualifying United States Navy test. Joseph's
testimony was undenied that the welding work on tank parts at'the Ashland plant differed
from welding work on pontoon parts at the Oakley plant in material respects , including
the thickness of the metal , the type of welding rod used, and the cut of the plate used.
The qualifying tests for the respective jobs likewise differed. Under the circumstances
the undersigned finds that Joseph's employment by the respondent at it, Ashland plant
In late September did not constitute reinstatement to a substantially equivalent position.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
succeeding months the respondent advertised for welders extensively in the local
press 29
In appraising the motive of the respondent in making the lay-off selections, a
most significant factor is the proportionate number of union adherents, particu-
larly openly active union supporters, who were selected for discharge. Of the
10 welders who were chosen (excluding Harrison and Roethenbuchler who, while
originally also marked for lay-off, were subsequently reinstated), 7 were those
most prominently interested in the promotion of the union, a ratio wholly out of
line with the indicating percentage of welders who at that time had manifested
any open interest in union organization. Those originally marked for lay-off,
if Harrison and Roethenbuchler are joined in this category, included every
employee who attended the restaurant meeting, Ferek who with Tediski was
observed soliciting in the plant, and Rosenband who on the day preceding his
lay-off was elected chairman of the Union. So far as the record discloses, no em-
ployee who at that time was openly active in union organization was omitted
from the lay-off2'
The marked and wholly disproportionate selection for lay-off of the outstand-
ingly active union supporters at a critical period of organization, particularly
when viewed in the light of the respondent's antipathy toward the Union as
manifested by its conduct discussed above, is repellent to a conclusion that union
affiliation and activities were considered by the respondent as irrelevant factors
in making its choice. The possibility that a combination of non-discriminatory
selection and fortuitous circumstances may have brought about that result in
exceedingly remote, and while that possibility may not be ignored altogether,
the result achieved at least made it incumbent upon the respondent to come for-
ward with a plausible and adequate explanation for its selection of the com-
plainants in contrast to its retention of newer and presumably less experienced
employees.28 This the respondent has not done. With respect to the individuals
named in the complaint, Simon's testimony phrased in the form of broad gen-
eralizations, unsupported by specifications of detail and available documentary
matter, and in part contradictory, was not convincing in its demonstration that
the respondent followed its usual and non-discriminatory criteria in choosing
the complainants for lay-off. Upon the basis of the record as a whole and his
observation and appraisal of the witnesses, the undersigned does not credit nor
regard as adequate Simon's explanation of the basis upon which the complain-
26 In attempted justification for its failure to recall the complainants , the respondent
argued that regulations of the War Manpower Commission , applicable to critical areas,
required that it hire employees only through the United States Employment Service.
The record, however, contains uncontradicted testimony indicated that during the period
following the lay-off it was a common and accepted practice in the Chicago area for em-
plovers to contact prospective employees directly and to request referral clearance from
the United States Employment Service only after all other preliminary hiring arrange-
ments had been completed . As the record also shows the respondent in its published ad-
vertisements requested that application for employment be made , directly to it at its per-
sonnel office
27 Ural R Pool , whose discharge case is discussed below first became interested in the
Union, according to his credited testimony , on February 5, 1944 when his membership was
solicited outside the plant gates by Rosenband . Except for his attendance at the open
union meeting on February 6, 1944, it does not appear that he assumed an active and open
role in the activities of the Union until after the lay-off
28 See N. L R B. v. Chicago Steel Foundry Co., 142 F. ( 2d) 306 (C. C. A. 7), where the
Court said :
The disproportionate treatment of union and non-union members may be very
persuasive evidence of discrimination and may create an inference leaving it to an
employer to give an adequate explanation of the discharge or lay-off." See also Mont-
gomery Ward & Co, Inc v. N. L R B, 107 F. (2d) 555 (C. C. A. 7) ; N. L It. B. v.
Bachelder, receiver for Hoosier Veneer Company, 120 F. ( 2d) 574 (C. C. A 7).
INDUSTRIAL METAL FABRICATORS, INC. 61
ants were selected for lay-off. On the contrary, the undersigned is persuaded
and finds that the respondent utilized the curtailment of its operations in an
effort to frustrate the developing organizational plans of its employees by dis-
criminatorily removing from its rolls those whom it identified as most active in
the organization of the Union. The undersigned further finds that the respond-
ent discriminated against the 7 employees involved in the lay-off who are named
in the complaint by failing to recall them when it thereafter required the services
of additional welders.
Upon the foregoing facts and the entire record, the undersigned finds that
the respondent terminated the employment of Edward Joseph on February 3,
1944, of Adolph Arturi, Julius Des Biens and William Godbey on February 5,
1944, and of John Tediski, Albert Ferek, and Maurice Rosenband on February
7, 1944, and thereafter refused to reinstate or reemploy them because of their
union activities, and that such action on the part of the respondent constituted
discrimination in regard to the hire and tenure of the said named employees,
thereby discouraging membership in the Union and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section
7 of the Act.
D. The discriminatory discharge of Ural R. Pool
Ural R. Pool was employed by the respondent on March 1, 1942, and, except
for a period of approximately 3 months in early 1943 when he left the State
and a further period of approximately 10 days in May 1943 after he had volun-
tarily quit, he worked continuously for the respondent until he was discharged
on March 22, 1944. Pool's initial hourly rate was 66 cents ; he thereafter received
a number of rate increases, and at the time of his discharge was earning an
hourly rate of a dollar ' From October 19, 1943, until the date of his discharge,
Pool worked as helper on what was known as the water-test operation, a process
used to test pontoons for leaks resulting from defective welding It was Pool's
duty to help generally in the physical operations involved in this test, to place
the pontoons in position, to fit the pipe connections, to pump water in and out
of the pontoons, to go to the tool crib for supplies, to sweep the floor clean of
debris, and to do general messenger work about the plant when required. Among
other things, it was Pool's function, when the water test was completed, to pump
the water from the tested pontoon into the pontoon next in line for testing.
The pump would not draw all the water from the tested pontoon but would
leave a residue of a few inches ; to remove this residue the tested pontoon
would then be tilted and the water allowed to flow out on the floor and from
there supposedly down the floor drains. ' Not infrequently, according to the
undenied and credited testimony of Johnson, a floor drain would become clogged,
and on such occasions water would collect in pools on the floor.
Pool joined the Union on February 5, 1944, and following the February lay-off,
assumed the lead among employees in the plant in its organizational activities.
According to the credited testimony of Johnson, Pool was known among the
employees on his shift in the plant as the most outspoken and active organizer
for the Union. On one occasion, shortly prior to the election, Pool, according
to his undenied testimony, complained to Callahan that the election notices had
not been properly posted on the bulletin board. Pool's participation at the em-
ployee meeting called by Callahan at which he was one of only two employees
who openly expressed their support for the Union has been noted above. As has
YU The record does not reflect the precise dates of Pool's wage increases, but it does indi-
cate that between October 19, 1943, when he was assigned to work on pontoons and the date
of his discharge it rose from 85 cents to a dollar.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also been noted above, Pool' s outstanding part in the Union's organizational
activities did not escape the notice of the respondent, and on a number of occa-
sions was made the subject of comment by Works Manager Callahan and Foreman
McMerney. At the hearing the respondent did not disclaim knowledge of Pool's
union activities.
Pool's discharge occurred 3 weeks after the election. According to Pool, his
first intimation that he was slated for discharge came in a talk with Simon at
the latter's office about a week before his final termination. On this occasion,
Simon told Pool that he had heard "rumors" about the latter and had planned
to discharge him but before doing so had decided to give Pool "one more chance."
Pool thereupon accused Simon of seeking to get rid of him because of his union
activities. Simon denied this charge, stating that he had other reasons. But
he did not specify what his other reasons were On March 22, 1944, Pool was
called to the office by McMerney and was told that he was being discharged.
When Pool inquired as to the reason for his discharge, McMerney simply told him,
"I hate to do it, but Simon has ordered me to do it." Subsequently, Pool made
similar inquiry of Simon, but the latter stated that he knew nothing about the
discharge and attributed sole responsibility to McMerney for the action taken.30
The discharge papers which Pool later received stated that he was discharged
for "Inefficiency and horseplay in the shop."
Simon was the only witness for the respondent who gave testimony relating
to Pool's discharge. Concerning this subject, his testimony on direct-examination
was brief and is fully set out below :
Q You fired him?
A. That is right.
Q. For what reason?
A. Well, for fooling around and not doing the proper work he was supposed
to do.
Q Explain that a little more clearly to the Trial Examiner.
A. Well, in the first place, his job was to be on the water test, which is
in one part of the building, and every time I came through the shop, he
seemed to be in the tool room, and his excuse was that he wanted a bottle
of milk and a bar of candy, and that was all well and good, but I did not
think lie should need something there every time I walked through the shop,
which was quite often.
On the other part, fooling around, that was more than I could stand, because
of his squirting water around and just to empty the pontoons , instead of
emptying it from one pontoon into another, he would empty it on the floor
so that he could flood the floor.
I warned the man and he kept on doing it, so I just let him go, that is all.
When questioned on cross-examination as to how long Pool had engaged in
the conduct attributed to him, Simon testified at one point :
Well, I could not tell you how long, but it was too long for me, and so I
fired him.
Q. Well, had he been doing it all the time that you had been superintend-
ent?
A. I could not watch him all the time.
Q. When was the first time that you did notice him?
A. Oh, probably a week or so before I let him go.
Q. A week or so before you let him go?
30 The findings in this paragraph are based upon the undenied testimony of Pool.
- INDUSTRIAL METAL FABRICATORS, INC. 63
A. That is right.
Q What happened on that day?
A. Oh, I don't recall exactly. -
Simon's testimony in this respect was not, however, consistent. At another
point in his cross-examination, he testified that he had observed Pool "fooling
around" "probably two nights out of the week for the past two or three weeks
before that", and at a third point that he had been criticizing Pool for this con-
duct "once or twice a week for the past year."
Pressed for details as to what he had observed with respect to Pool's alleged
"horseplay", Simon referred to the fact that twice in one day, a week or more
prior to the discharge, he had observed Pool in the tool room and that each time
Pool had given-as an excuse for his presence there that he was getting a candy
bar. Simon testified that he had at that time warned Pool, "I don't go for the
fooling around. I want you and everybody else to stay on their job where they
belong." On the occasion of this warning, Simon's testimony on cross-exami-
nation continued.
I also warned Mr. Pool about draining pontoons on the floor. I said "you are
not draining them fast enough like the other pontoons." I don't know why, but
it seemed every morning when I came down there, the first thing I heard
from the other shift was, "all the pontoons are drained on the floor," . .
Maybe the man had a reason for it, I don't know, but I also told him about
that, and when he did not do that I said, "For the last time, if you don't cut
out the fooling around and drawing pictures and so on and so forth, of
women on pontoons, and horses, and putting somebody's name of a mule
or something like that, saying you are a jackass and so on and so forth, I am
going to let you go."
He said, "I did not do it." I said, "Well, maybe you didn't, but different
people told me you did" and I said, "I know you like to fool around," and
I said, "It is all right, but'don't do it around here no more."
That continued, and I finally let the man go. I can't let nobody hamper
production.
When he spoke to Pool in the tool room, a week or so before the discharge,
Sinion's testimony on cross-examination went on,
I cautioned him also about this broom business, that it seemed to
be quite a joke to him and everbody in the shop. It seemed that Mr. Pool
was carrying or leaning on a broom, and I cautioned him about the pontoons,
the draining on the floor. Well, as I say, the man might have had a reason
for it, but I could not see it, because it held the boys back three or four
hours in the morning . . I did not see everything. I was told a lot. I
could not woik night and day, and Mr. Pool happened to be on the night
shift at all times and very seldom on the day shift.
Notwithstanding Simon's testimony on direct-examination, repeated on cross,
that it was he who discharged Pool for violation of his warnings, he later ad-
mitted that he had noting to do with Pool's discharge. When questioned as to
whether he had a conversation with Pool when he discharged him Simon testified:
No, I did not. In fact the foreman did, himself, let him go that night.
I mean I came down there that morning and a note was left for me on my
desk that he had let Pool go, and Pool came back after that and said, or asked
me why, and I believe it was before I seen the night foreman that day, and
I said, "I really don't know why, but it was probably because you were fool-
ing around but I will find out from McInerney or whoever was the foreman
that night."
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pool denied that he had ever told Simon in the tool room that he was there to,
get a candy bar or that Simon had ever reprimanded him for being in the tool
room, a place to which he was often required to go in the normal course of his
employment ; denied that he had ever allowed pontoons to drain to the floor
except to the extent customarily required ; denied that he had ever made drawings
or written names on pontoons; denied that he had ever engaged in "horseplay"
of any kind ; and denied that he had ever been criticized or warned by any super-
visory employee for the quality of his work or for the type of conduct specifically
referred to in Simon's testimony. Pool's testimony in general was corroborated
by Johnson, a welder under whom Pool worked on the water test operation. It
was Johnson's testimony that Pool was always a willing, able, and efficient
worker.
Even if accepted at face value, Simon's uncorroborated testimony is scarcely
of sufficient probative force in view of Pool's denials to sustain a finding that the
latter in fact was inefficient, engaged in horseplay while on the job, and was
discharged for these reasons, as contended by the respondent. Simon's testimony
was mainly of a general and conclusionary character. The only incident with
respect to which his testimony was at all specific was Pool's alleged presence in
the tool room to get a candy bar on 2 occasions a week before his discharge,
conduct which hardly falls within the usual connotation of inefficiency and
horseplay, and which in any event was not shown to be the actual cause of the
discharge. Simon's testimony as to the other incidents referred to in his testi-
mony is not shown to be based upon personal observation. "Of course," testified
Simon at one point, "I did not see everything, I was told a lot." It is undisputed
that it was customary to drain to the floor part of the water in the pontoons, and
Simon's own testimony does not establish that Pool, in doing so, acted im-
properly.31 "Maybe the man had a reason for it," testified Simon, "I don't know."
Simon's testimony that Pool was drawing improper pictures on the pontoons,
.admittedly hearsay in, character, was not brought out by the respondent on
direct-examination; it was first asserted by him on cross-examination, evidently
as an afterthought while he was being vigorously pressed to describe conduct on
Pool's part which might be considered within the definition of "horseplay."
Finally it does not appear from Simon's own testimony that Pool's alleged dere-
lictions were the actual cause of the discharge; Simon himself finally admitted
that he had nothing to do with the discharge and did not hear of it until after it
was consummated.
In any event, the undersigned is persuaded from his consideration of the record
as a whole and his observation of the witnesses that Simon's uncorroborated
testimony concerning the reasons for Pool's discharge is unworthy of credit.
As noted, Simon's testimony was garbled, indefinite, uncertain, and contra-
dictory There is no claim on the respondent's part that fool's work habits
and general attitude suffered a marked change during the last few weeks of his
employment ; indeed Sin:,on in his testimony sought to convey the impression
that Pool's alleged inefficiency and predilection for horseplay was chronic in nature
and had been in evidence for at least a year. The authenticity of the respondent's
claim is thus largely impugned by Pool's relatively long history of employment
with the respondent including his 2 rehirings on occasions when he had pre-
viously quit, his 5 months of continuous service performing the specific job on
which the respondent claims he was inefficient, and his several wage increases
31 Simon's several references to Pool's conduct in draining pontoons were not only vague
but contradictory as well. Thus on direct-examination, reference is made to Pool "squirt-
ing water around and just to empty the pontoons ". On cross -examination complaint is
made that Pool was not "draining them fast enough."
INDUSTRIAL METAL FABRICATORS, INC. 65
including a 15 cent hourly raise while he was on his last job. On the occasions
of the various general lay-offs, including the February lay-off, when the re-
spondent might normally be expected to release its least efficient and desirable
employees, Pool had always been retained ' It is significant that the respondent
adduced no evidence to show what incident, if any, immediately precipitated
the discharge. Pool's testimony that- he was summarily discharged without
any reason given is found corroborated by Simon's testimony relating to his
conversation with Pool which followed the discharge. If Pool in fact had been
discharged for the reasons now asserted by the respondent, it is highly probable
that the asserted reasons would have been then and there directed to Pool's
attention and it is unlikely that McInerney and Simon would each have sought
to shift responsibility to the other for the action taken.
In contrast to that of Simon, Pool's over-all testimony, in the main corrobo-
rated by Johnson, impressed the undersigned as reliable and trustworthy. Upon
the record as a whole, the undersigned credits Pool's testimony and finds that
Pool was not inefficient and did not engage in horseplay and that he was not
in fact discharged for the reasons advanced by the respondent.
To sum up : Following the February lay-off, Pool assumed a position of lead-
ership in the organizational activities of the Union and became the Union's most
aggressive if not the only openly active proponent within the plant. Pool's
activities in behalf of the Union were known to the respondent. The discharge
of Pool, an experienced and previously satisfactory employee, was effected at
a time when, as the record shows, the respondent was engaged in hiring new
employees. When the respondent's explanation for the discharge, herein found
to be specious, is put aside, and the discharge is considered in the light of the
respondent's previously manifested antipathy toward the Union, its prior course
of conduct designed to interfere with the self-organizational plans of its em-
ployees, and its demonstrated propensity toward discouraging membership in
the Union by removing from its rolls those known to be most active in the
Union's support, the discharge becomes susceptible of explanation on no other
basis than that its root lay in Pool's union activities, the respondent's resent-
ment of such activities, and its desire to discourage similar activity by its
employees in the future The undersigned so finds
On the basis of the record as a whole the undersigned finds that the respond-
ent discharged Ural R. Pool on March 22', 1944, because of his membership and
activities on behalf of the Union, and that by its discharge and failure to rein-
state him, the respondent discriminated in regard to his hire and tenure of em-
ployment thereby discouraging membership in the Union and interfering with,
restraining, and coeicing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate and substantial relationship to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
i2 The retention of Pool during the February lay-off does not, however, negate an inference
of discrimination, for, as has been shown, Pool's pronounced support of the Union began
and became generally known after the lay-off.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair labor
practices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the respondent discriminated in regard to the hire and
tenure of employment of Edward Joseph on February 3, 1944, of Julius Des
Biens, Adolph Arturi, and William Godbey on February 5, 1944, of John Tediski,
Albert Ferek, and Maurice Rosenband on February 7, 1944, and of Ural It. Pool on
March 22, 1944 At the time of the hearing John Tediski was in the military
forces of the United States and is accordingly not available for immediate rein-
statement. Therefore, the undersigned will recommend that the respondent upon
application by Tediski within ninety (90) days after his discharge from the armed
forces of the United States offer him reinstatement to his former or substantially
equivalent position without prejudice to his seniority or other rights and privileges.
The undersigned will further recommend that the respondent make Tediski whole
for any loss of earnings he may have suffered by reason of the respondent's dis-
crimination against him, by payment to him of a sum of money equal to the
amount which he normally would have earned as wages during the periods: (1)
between the date of the respondent's discrimination against him and the date of
his entering the armed forces of the United States; and (2) between the date
five (5) days after his timely application for reinstatement and the date of the
offer of reinstatement by the respondent, less his net earnings during this period '
The fact that Tediski may become entitled to further back pay following his
timely application for reinstatement upon his discharge from the armed forces of
the United States shall not be regarded as affecting the respondent's obligation to
pay him immediately whatever amount is due him from the date of his discharge
by the respondent to the date he entered the armed forces of the United States, less
his net earnings during that period.
It is further recommended that the respondent make Edward Joseph, Julius Des
Biens, Adolph Arturi, William Godbey, Albert Ferek, Maurice Rosenband and
Ural R. Pool whole for any loss of earnings they may have suffered by reason of
the respondent's discrimination against them, by payment to each of them of a sum
of money equal to the amount he normally would have earned as wages from the
(late of the respondent's discrimination against him to the date of the respondent's
offer of reinstatement, less his net earnings during that period.';
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CoNc usIoNS of LAW
1. Food, Tobacco, Agricultural and Allied Workers Union of America, C I. 0,
is a labor organization within the meaning of Section 2 (3) of the Act
2. By discriminating in regard to the hire and tenure of employment of Edward
Joseph, Julius Des Biens, Adolph Arturi, William Godbey, John Tediski, Albert
Ferek, Maurice Rosenband and Ural R Pool, thereby discouraging membership
in Food, Tobacco, Agricultural and Allied Workers Union of America, C. I 0.,
31 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 %voiking else-
«here than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N L R B 440. Monies received for
work performed upon Federal, State, county, municipal or other work-relief projects shall
be considered as earnings See Republic Steel Corporation v N. L. R B, 311 U. S 7.
34 See footnote 33, supra
INDUSTRIAL METAL FABRICATORS, INC. 67
the respondent engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
3 By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1) of
the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Industrial Metal Fabricators, Inc , its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Food, Tobacco, Agricultural. and Allied
Workers Union of America, C I. 0., or in any other labor organization of it4
employees by discharging, laying off, or refusing to reinstate or reemploy any
of its employees, or in any other manner discriminating in regard to the hire
and tenure of employment or any terms or conditions of their employment ;
(b) In any manner interfering with, restraining, or coercing its employees
in the exercise of the rights to self-organization, to form labor organizations, to
join or assist Food, Tobacco, Agricultural and Allied Workers Union of America,
C. I 0., or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection as guaranteed
in Section 7 of the Act.
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act.
(a) Offer to Edward Joseph, Julius Des Biens, Adolph Arturi, William Godbey,
Albert Ferek, Maurice Rosenband and Ural R. Pool immediate and full rein-
statement to their former or substantially equivalent positions without prejudice
to their seniority and other rights and privileges ;
(b) Make whole Edward Joseph, Julius Des Biens, Adolph Arturi, William
Godbey, Albert Ferek, Maurice Rosenband, and Ural R Pool for any loss of pay
they may have suffered by reason of the respondent's discrimination against
them by payment to each of them of a sum of money equal to the amount he nor-
mally would have earned as wages during the period from the date of the
respondent's discrimination against him to the date of the respondent's offer of
reinstatement, less his net earnings 35 during such period ;
(c) Upon application by John Tediski within ninety (90) days after his dis-
charge from the armed forces of the United States, offer him immediate and
full reinstatement to his former 'or substantially equivalent position, without
prejudice to his seniority and other rights and privileges ;
(d) Make whole John Tediski 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 he normally would have earned as wages
during the periods: (1) from the date of the respondent's discrimination against
him to the date upon which he entered the armed forces of the United States ; Je
35 See footnote 33, supra.
311 The obligation of the respondent to pay Tediski the amount due him for this period
shall he unaffected by the fact that he•may become entitled to further back pay following his
timely application for reinstatement upon his discharge from the armed foices of the United
States
663 a 14-46-vol 63-6
,68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) from a date five (5) days after his timely application for reinstatement, if
any, to the date of the offer. of reinstatement by the respondent, less his net
earnings" during these periods;
(e) Post at its plant at 63rd Street and Oakley Boulevard, Chicago, Illinois,
copies of the notice attached to the Intermediate Report herein, marked "Appen-
dix A". Copies of said notice to be furnished by the Regional Director for the
Thirteenth Region, shall, after being duly signed by the iespondent's representa-
tive, be posted by the respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the respondent to insure that said notices are not
.altered, defaced, or covered by any other material.
(f) File with the Regional Director for the Thirteenth Region on or before
ten (10) days from the date of the receipt of this Intermediate Report, a report
in writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it has complied with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II, of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 26,
1943, any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the oider transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board, Rocliam-
beau Building, Washington, D. C., an original and four copies of a statement
in writing setting forth such exceptions to the Intermediate Report or to any
other part of the retold or proceeding (including rulings upon all motions or
objections) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of
exceptions and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and shall file a copy with
the Regional Director. As further provided in said Section 33, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing within ten (10) days from the date of the order transferring
the case to the Board.
ARTHUR LEFF
Trial Examiner
Dated February 21, 1945.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist Food, Tobacco, Agricultural and Allied Workers Union
of America, C I. O. or any other labor organization, to bargain collectively
31 See footnote 33, supra.
INDUSTRIAL METAL FABRICATORS, INC. 69
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Adolph Arturi.
Julius Des Biens.
Albert Ferek.
William Godbey.
Edward Joseph.
Ural R. Pool.
Maurice Rosenband.
John Tediski.
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
INDUSTRIAL METAL FABRICATORrS, INC.,
By -----------------------------------
(Representative)
-----------------------------------
(Title)
Dated --------------------------
NOTE: Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.