J. W. Greer Co.

National Labor Relations Board - Board Decisions

Oct 14, 1943

52 N.L.R.B. 1341 (N.L.R.B. 1943)

In the Matter of J. W. GREER COTIPANY 1 and UNITED STEELWORKERS
OF AMERICA (C. I. 0.)
Case No. C-2688.-Decided October 14, 194
DECISION
AND
ORDER
On June 29, 1943, the Trial Examiner issued his Intermediate Re-
port 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 that it take
certain affirmative action, as set forth in the copy of the Intermediate
Report annexed hereto. Thereafter, the respondent filed exceptions
to the Intermediate Report and a brief in support of its exceptions.
The Board has considered the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.
Pursuant to notice and at the request of the respondent, a hearing
was held before the Board at Washington, D. C., on September 16,
1943, for the purpose of oral argument. The respondent was repre-
sented by counsel and participated in the hearing; the Union did
not appear. At the hearing, the respondent requested and was grant-
ed leave to file certain supplemental affidavits and other documents.
Reply affidavits were filed by the Union on September 28, 1943, pur-
suant to leave granted by the Board. The papers thus filed by the
parties on September 16 and 28, 1943, are hereby ordered made a part
of the record herein.
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
with the additions noted below
1. The Trial Examiner has found that the Committee is an ille-
gally dominated and assisted labor organization, within the meaning
of Section 8 (2) of the Act, and has recommended that it be disestab-
1 The correct name of the respondent , as amended at the hearing , is J. W. Greer Com-
pany , while all previous reference to respondent was J. W. Greer Co., Incorporated.
52 N. L. R. B., No. 224.
1341
1342 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
lished as the collective bargaining representative of any of the re-
spondent's employees. The respondent contends that the Committee
is not a labor organization, but rather a labor-management committee
patterned after a plan suggested by the War Production Board, and
that disestablishment of the Committee would interfere with the War
Production Board's program of promoting the formation of labor-
management committees. The 'contention is without merit. It ap-
pears from the record and we find, as did the Trial Examiner, that
the Committee was established by the respondent in part for the-pur-
pose of functioning, and that it did in fact function in substantial
part, as a labor organization, within the meaning of Section 2 (5)
of the Act. It is not our intention to interfere with the program of
the War Production Board or with the legitimate functions of labor-
management committees. But such committees were never intended
to be, and they cannot be permitted to become, an obstacle to the
free exercise by employees of the rights guaranteed in the Act. The
War Production Board itself has recognized a functional difference
between labor organizations and labor-management committees, and
has stated, in an official pamphlet on the subject, that labor-manage-
ment committees are not meant "to promote company unions" or "to
interfere with bargaining machinery where it exists or undertake the
functions of such machinery." Our finding that the Committee is a
labor organization does not mean that all labor-management com-
mittees are labor organizations, and our Order herein will prohibit
only the Committee's functioning as a labor organization, within the
meaning of the Act, and not its functioning as a labor-management
committee, within the meaning of the War Production Board's
program.
2. The Trial Examiner has found, and we agree, that on February
11, 1943, the respondent discriminatorily discharged Alfred Kemp-
ton in violation of Section 8 (3) of the Act. The papers submitted
by the parties at and after the oral argument herein show, in part,
that on July 28, 1943, Kempton was inducted into the armed forces
of the United States. We shall therefore order the respondent, upon
application by Kempton within forty (40) days of his discharge from
the armed forces, to offer Kempton full reinstatement to his former
or a substantially equivalent position, without prejudice to his sen-
iority and other rights and privileges. We shall also order the
respondent to make him whole for any loss of pay he has suffered
or may suffer by reason of its discrimination against him by payment
to him of a sum of money equal to the amount which he -normally
would have earned as wages during the period from February 11,
1943, the date of his discriminatory discharge, to the date of his in-
J. W. GiREER COMPANY 1343
duction into the armed forces, and during the period from a date
five (5) days after his timely application for reinstatement to the
date of the respondent's offer of reinstatement, less his net earnings
during these periods. However, the fact that Kempton may here-
after become entitled to further back pay after his discharge from
the armed forces shall not affect the respondent's obligation to pay
him immediately whatever amount of back pay is due him for the
period from February 11, 1943, to the date of his induction into the
armed forces.
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, J. W. Greer Company,
Cambridge, Massachusetts, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Win
The War Committee as a labor organization, or with the formation of
administration of any other labor organization of its employees, and
from contributing support to Win The War Committee as a labor
organization, or to any other labor organization of its employees;
(b) Recognizing Win The War Committee as the representative
of any of its employees for the purpose of dealing with the respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment;
(c) Discouraging membership in United Steelworkers of America
(C. I. 0.), or in any other labor organization of its employees, by
discharging or refusing to reinstate any of its employees, or in any
other manner discriminating in regard to their hire and tenure of
employment, or any term or condition of their employment;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of'the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from, and completely disestablish,
Win The War Committee as the representative of any of its em-
ployees for the purpose of dealing'with the respondent' concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment;
1344 DECISIONS OF NATIONAL LABOR RE'LA'TIONS BOARD
(b) Upon application by Alfred Kempton within forty (40) days
after his discharge from the armed forces of the United States, offer
him full reinstatement to his former or a substantially equivalent
position, without prejudice to his seniority and other rights or
privileges;
(c) Make whole Alfred Kempton for any loss of pay he has suf-
fered or may suffer by reason of the respondent's discrimination
against him, by immediate payment to him of a sum of money equal
to the amount which he normally would have earned as wages during
the period from February 11, 1943, the date of his discriminatory
discharge, to the date of his induction into the armed forces of the
United States, less his net earnings during that period ; and by pay-
ment to him of a sum of money equal to the amount which he would
normally earn as wages during the period from a date five (5) days
after his timely application for reinstatement to the date of the
respondent's offer of reinstatement, less his net earnings during that
period ;
(d) Post immediately in conspicuous places throughout its plant
at Cambridge, Massachusetts, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees stating : (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraphs
1 (a), (b), (c), and (d) of this Order; (2) that the respondent will
take the affirmative action set forth in paragraphs 2 (a), (b), and (c)
of this Order; and (3) that the respondent's employees are free to
become and remain members of United Steelworkers of America
(C. I. 0.), and that the respondent will not discriminate against any
employee because of membership in or activity on behalf of that
organization ;
(e) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Mr. Thomas H. Ramsey and Hr. J. TV. Coddasre, Jr., for the Board.
Mr. Philip P. Wadsworth, of Boston, Mass., for the respondent.
Mr. Jack Hurvach, of Boston, Mass., for the Union.
Mr. J. Charles Andrews, of Boston, Mass, for the Committee.
STATEMENT OF THE CASE
Upon a third amended charge duly filed, April 17, 1943, by United Steel-
workers of America ( C. I. 0.), herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director for the
J. W. GREE,R COMPANY 1345
First Region, (Boston, Massachusetts), issued its complaint dated May 31,
1943, against J. W. Greer Company, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1), (2) and- (3) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint and notice of hearing were duly
served upon the respondent and the Union. A copy of the complaint and
notice of hearing was served upon the Win The War Committee 1 herein
called the Committee, alleged in the complaint to be a company-dominated
labor organization, on June 9, 1943. At the opening of the hearing, the Com-
mittee appeared through its representative and stated that it waived further,
time or notice and was ready and willing to proceed with the hearing.
With reference to the unfair labor practices the complaint alleged in sub-
stance that the respondent: (1) since about January 1943, has dominated and
interfered with the formation and administration of the Committee and con-
tributed financial support thereto; (2) about February 11, 1943, discharged
Albert Kempton and has since refused to reinstate him, because of his activi-
ties in behalf of the Union and the Committee, and because of his "concerted
activities with other employees of Respondent for their mutual aid and pro-
tection."; (3) since about August 1, 1942, has interfered with, restrained, and
coerced its employees by (a) threatening to close its plant and threatening
its employees with loss of seniority if they joined an outside union; (b)
threatening to resist the organization of an outside union; (c) informing its
employees that they did not need any outside help but could represent them-
selves in collective bargaining, and (d) questioning its employees concerning
their union affiliations; and (4) by the foregoing acts, interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
On or about the 11th day of June 1943, the respondent filed its answer
admitting certain allegations concerning the nature of its business but denying
that it had engaged in unfair labor practices It admitted the discharge of
Albert Kempton, but alleged that it was for cause; it further alleged that the
Committee was a Labor-Management Committee, made up of both employees
and representatives of management for the purpose of increasing production
in accordance with suggestions of the War Production Board.
Pursuant to notice, a hearing was held on June 14, 15, and 16, 1943, at
Boston, Massachusetts, before J. J Fitzpatrick, the undersigned Trial Exam-
iner, duly designated by the Chief Trial Examiner. The Board and the re-
spondent were represented by counsel, the Union by its international repre-
sentative and the Committee by its former chairman. Full opportunity to
be heard, to examine, and cross-examine witnesses, and to introduce evidence
hearing on the issues was afforded all parties At the conclusion of the hear-
ing the Board's counsel and the attorney for the respondent moved to con-
form their respective pleadings to the proof, as to formal matters. The.
motions were granted. At that time also, counsel for the Board and the
respondent presented oral argument. The parties were advised of their rights
to file briefs with the undersigned after the close of the hearing. The re-
spondent has filed a brief.
Upon the record thus made and from his observation of the witnesses, the.
undersigned makes the following:
i The Win The War Committee is sometimes also referred to in the record as the Labor-
Management Committee.
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The J. W. Greer Company is a Massachusetts corporation having its prin-
cipal office and place of business in the city of Cambridge, Massachusetts.
Prior to the present war it was engaged in the manufacture, sale and distribu-
tion of bakers' and confectioners' machinery. At pri.sent it is producing war
materials for the United States Government. The principal materials used
by the respondent consist of stainless steel, aluminum, bronze, and other
metals. During the past year from 10 to 15 percent of said materials of the
value of approximately $40,000, originated outside the Commonwealth, of
Massachusetts. During the same period approximately 10 to 15 percent of
its finished products, of the value of about $150,000, was shipped to points
outside the Commonwealth of Massachusetts. At the hearing the respondent
admitted that it was engaged in commerce within the meaning of the Act.
The respondent employs approximately 375 people.
H. THE ORGANIZATIONS INVOLVED
United Steelworkers of America , ( C. 1 0 ) and the Win The War Committee
are labor organizations within the meaning of Section 2 ( 5) of the Act.
III. THE 'UNFAIR LABOR PRACTICES
11
A. Interference, restraint, and coei cion; domination of the Committee; discrim-
inatory discharge of Kempton
1. Events prior to January 14. 1943; Union organizing efforts
About 1936, shortly after the enactment of the Act, the J. W Greer Employees
Association was formed in the respondent's plant Although the respondent
agreed to recognize it as the agency for the employees in collective bargaining,
the association ceased to function after a few months and has never since been
revived. As hereafter appears, there is no record of any other union activity
until 1942
The latter part of August, or the first part of September, 1912, during a lunch
period, a number of the employees including Albert Kempton, an employee in
the iron shop division, and his assistant foreman Louis Ribeirn, were eating
lunch on the steps of a house adjoining the respondent's plant. There was some
discussion about a union and after Kempton remarked that a union was needed
in the plant, Ribeiro volunteered that the last time there was an attempt to
organize ". . . we threw the organizer out on the sidewalk on his rear end."'
This comment on the part of the supervisor terminated further union discussion.
In December 1942, or early January 1943, Kempton and other employees dis-
cu,sed the advisability of organizing a union in the plant. Kempton had injured
his finger on Saturday, January 9, 1913, and on Monday morning, January 11,
under instructions from the respondent's nurse, reported for examination and
treatment at a hospital conducted by the respondent's insurance carrier in the
downtown section of Boston' The Union office was nearby, and as a result
of the aforesaid organizational discussions, Kempton took advantage of this
opportunity and stopped at the office of the Union. There, lie talked with Jack
Hurvich, the Union's international representative, and discussed the advis-
L'ibeiro, although a witness did not deny this testimony of Kempton
The respondent's plant is in Cambridge, near Boston
J. W. GREER COMPANY 1347
ability of organizing a union in the respondent's plant. Kempton signed an
application to join the Union and was given about 25 blank union application
cards to distribute them among interested employees. After being in the Union
headquarters about 10 minutes, Kempton returned to the plant. He then dis-
tributed most of the cards among three or four interested employees with
instructions to return them to him if signatures were secured. He also per-
sonally secured the signatures of four or five employees. Kempton reported to
the hospital for further treatment on January 12 and 13. In the morning of
the latter day, he again called at the Union office where he remained about 5
minutes. Al Savoy, another employee, accompanied him, and they secured
about 125 additional cards, about 75 of which, on their return to the plant,-
were distributed among interested employees Kempton personally solicited
two employees during the rest period that day. On each of the three occasions
when lie went for these medical treatments, Kempton was away from the plant
approximately 2 hours.
Shortly after the lunch period on the 13th, Superintendent Hill came to
Kempton at work and criticized him for taking too much time to go to the
hospital that day. Hill also asked Kempton if he had not refused to "pound
inserts" several weeks before. Kcmpton admitted that at the time he had
refused to continue pounding inserts because of a misunderstanding as to how
much of that work he was to do, but stated that when Foreman Shumacker had
explained that the work ,vould be divided he had returned to the task' Some
time after Hill had left, Assistant Foreman Ribeiro asked Kempton what time
lie had reached the hospital that day for treatment of the injured finger.
Kempton refused to discuss the matter with Ribeiro and stated that he would
talk with him about matters pertaining to the shop but would not discuss
"social" matters. He told Ribeiro that he considered the latter was a "stool
pigeon." Ribeiro then left Kempton but in a short while returned and told the
latter "I have the authority now to fire, and either you are going to talk
sociable to me or talk shop to me, or I can't have you here." Kcmpton then in
effect retracted his previous statement to Ribeiro and asked the latter to "forget
it" . 5
2. Organization and administration of the Committee
On or about January 14 the respondent called a mass meeting of its employees
in'the plant during working hours. Practically all the employees, supervisors,
and officials attended. Don S. Greer, the respondent's treasurer,' presided at the
meeting He told the employees that the respondent was behind in its produc-
tion schedule and was having too many rejections of its work. He referred
to unrest in the plant and attributed it to complaints about the wage schedule
In this connection Greer told the employees that the respondent had made ap-
plication to the War Labor Board for a "step-rate" pay increase. He commented
4 Al Ribeiro, assistant foreman , and with whom Kempton had the argument about the
inserts, corroborated Kempton that the insert tiouble was settled satisfactorily.
6 The discharge of Kenipton is discussed hereafter In its brief the respondent , arguing
the cause of Kempton's discharge, admitted that it knew of his "participating actively"
in the drive to organize its employees. It stated :
The fact that the union was attempting to organize the plant was known to-many
Company witnesses and was shown by the evidence and is not denied It is natural
that employees knew about the union activity , and'that the management would learn
about it It aright also be natural that they would learn that Kenipton was partici-
pating actively They ceitanily knew Kempton was active on the Labor-Management
Committee . There is no evidence , however , that this influenced the discharge of
Kcmpton.
'Don Greer and his brother Frederick W. Greer , were co -managers of the plant
549875-44-vol. 52-86
1348 iDECISSO 1S OF NATIONAL LABOR RELATIONS BOARD
on the talk he had heard of organizing the employees in an outside union and
told the employees that if such was their desire they could have a union and
there was nothing the respondent could do to prevent it. Greer then observed
that "his door" and that of his brother was always open to the employees for
the purpose of discussing any grievances and that the employees could get
directly what they wanted without calling in outside help.' Greer concluded
his speech by asking the cooperation of the employees in increasing production
and called for suggestions along that line. One of the employees, Albert C.
Cherry, Jr., responded that inasmuch as nothing had been done by manage-
ment in the past relative to ideas presented by the employees through the fore-
man or other supervisors, he suggested the formation of a committee to act as
a clearing house on ideas submitted for improving production and to handle
grieviences. Don Greer stated that he thought Cherry's suggestion an excellent
one, and added that the respondent had for some time been considering the for-
mation of a labor management committee as recommended by the War Produc-
tion Board Eight or nine employees were then nominated from the floor as
members of the proposed committee. Greer wrote the names down as called
and then read the names aloud to the meeting including the names of J. Charles
Andrews, former president of the J. W. Greer Employees Association and at
present assistant foreman in the lathe department, and Leland Grey, foreman
of the carpenter shop e
At the hearing Kempton and Cherry, both testified that they did not hear the
names of either Andrews or Grey called during the mass meeting However,
Ralph F Hollis testified specifically that he nominated Andrews and Salvatore
J. Palmisano testified that he nominated Grey. Furthermore, when the names
of nominees for committeemen were read aloud by Don Greer no exception was
taken by anyone at the meeting to the inclusion of Andrews and Grey. The
undersigned finds that both Grey and Andrews were nominated.
After the list of nominees had been read aloud to the meeting there was some
confusion as to further procedure At Don Greer's suggestion, the meeting
adjourned and the employees returned to their, work, with the understanding
that those nominated would meet with management that evening at G o'clock
and arrange for a permanent organization. The meeting had started during
the 3 o'clock 10 minute rest period but extended for approximately 30 minutes
beyond the rest period. All employees were paid for their time spent at the
meeting
'Respondent's counsel examined Don S Gieer as to paragraph 10 of the complaint
which specifies the respondent's commission of unfair labor practices Subdivision (d)
thereof alleges that the respondent informed its employees that they (lid not need any
help from the outside but could personally represent themselves " When asked, "Have
you ever made any statement of that sort?", he answered, "I think perhaps I have." On
cross-examination he testified as follows :
Q And I believe that you also have testified on your direct examination that there
was no need for employees to seek the help of an outsider in adjusting such matters,
that you could get along together ?
A I am not sure I said that
Q Well, do you recall just what you did say9
A Well, I put it just now as best I could remember it
Q Well, (lid you use the word "outsider" at a119
A. I don't remember.
Q Did you use the words "labor organization" or "labor representative"?
A I don't believe so I said that 1 understood there was a rumor that some of
them wanted a union, that was the only reference to unions
Andrew s testified that he was a sub-foreman He was also referred to as an assistant
foreman in the testimony. Grey did not testify but he was referred to as the foreman of
the carpenter shop. The respondent did not dispute their supervisory status
J. W. GREER COMPANY 1349
At 6 o'clock that evening the eight nominees met with the two Greers in the
respondent's conference room. It was decided to nominate and elect an entirely
new committee. Cherry and Andrews were instructed to handle the nominations
and the election. The next morning during working hours the employees nomi-
nated three employees in each department to represent them on the proposed
Committee. There were 8 such departments, and of the nominees, one em-
ployee in each department was to be elected as the representative of his depart-
ment. The names were posted on the plant bulletin board at noon. In the
afternoon, the election was held. Both the nominations and the election were
by secret ballot. The results of the election were posted that "afternoon, the
notice also stating that the two Greers would attend any meeting of the Com-
mittee when their presence was desired. Both posted notices characterized
the Committee as the Grievance Committee. _
Kempton, Andrews and Grey were elected as members of the Committee.
Savoy, although nominated, failed of election. At 5 o'clock quitting time, the
day of the election, Fred Greer sent for Savoy and expressed his regrets because
of Savoy's failure of election and stated that he would like to have seen Savoy
on the committee; that there were two factions in the plant, the older employees
and the new ones, and that he felt that Savoy would have represented the new
employees Greer then requested that Savoy refer any employees who came to
him with grievances or suggestions to Andrews or one of the other elected Com-
mittee members. Savoy agreed to do so.°
The day after the election the Committee held its first meeting. Both the
Greers attended. Andrews was elected chairman., Don Greer's suggestion that
the Committee be called "Win the War Committee" was adopted When Don
Greer expressed the hope that the Committee would get to the bottom of the
unrest, Kempton offered to quit his job, claiming it had been insinuated that he
was to blame for bringing the Union in to the plant. Don Greer responded
that "no body is getting fired" ; that he had reports Kempton was "a good worker
down stairs"; and, "that is why we set this committee up to straighten up the
whole thing." Suggestions were then made by various members, including
Kempton, for improving production and morale in the plant, such as providing
a nurse, installing a machine kit, and replenishing the gum machine with fresh
stock. Most of the suggestions were adopted by the respondent. Kempton
then aired a number of grievances from the employees in the iron shop. One
concerned Joe Quales, a driller, who had been put on grinding work which he
did not like because of a previous poor drilling job which he claimed was not
his fault. Kenipton also stated that the night shift was accomplishing nothing
and suggested that better results could be obtained if it was abolished and
the work absorbed by extending slightly the working hours of the more expert-,
enced day crew. He told the Committee that there was a clique in the iron shop,
headed by Foreman Shumacker, that was responsible for most of the unrest
in that department; that some in the clique worked only half a day-on Satur-
days and then laid off but were permitted to work on Sundays for double pay,
thus causing dissatisfaction among others who were not so favored. Although
Don Greer agreed that the night shift was accomplishing very little, nothing was
done about Kempton's other suggestions, but Greer stated that he would elimi-
nate the unrest if lie had to clean out the entire iron shop. Reggie Torres,
° This finding is based on the uncontradicted testimony of Savoy Fred Greer, although a
witness, was not asked and did not deny the above statements credited to him. In this
connection, Savoy's testimony that after this talk with Fred Greer a number of employees
in his department came to him with grievances which he passed on to Andrews, is also
credited.
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representing the metal department, stated that his department was interested
in higher wages. In response to Torres' statement Don Greer explained the
"step-rate" wage scale then before the War Labor Board for approval, and
stated that as soon as approval was obtained the higher wage scale would be
put into effect.
Thereafter, weekly meetings of the Committee were held until about the end
of February, when the meetings were held every 2 weeks At first the meetings
lasted from 1 to 1% hours but later the time was reduced to about 30 or 40 min-
utes All meetings were held on company property and the members were paid
for their time. Kempton attended the meetings until his discharge February
11, and vigorously continued to present grievances, particularly those involving
alleged favoritism on the part of Foreman Shumacker. After the first meeting,
neither of the Greers attended regularly but came in when they were asked to or
when they had some matter to present to the Committee. Aside from the or-
ganization meeting neither one of them participated in any of the various griev-
ance discussions, nor did they at any time vote on any matter passed on by the
Committee. At the February 9 meeting, Kempton again brought up the griev-
ances previously mentioned concerning which nothing had been done, and, in
addition discussed the case of a very poor drill sharpening job performed, as he
claimed, by one of the better paid employees The Committee authorized Chair-
man Andrews and Kempton to present the various complaints made by Kempton
directly to Don Greer. After the meeting adjourned, Andrews and Kempton
went to Don Greer's office where Kempton presented and discussed the Quales
grievance, the drill sharpening incident, and Shumacker's various acts of favor-
itism. He also told Greer that he had suggested to Assistant Foreman Ribeiro
that the inexperienced girl driller be replaced by one of the floor girls, but that
Ribeiro had done nothing about it. Kempton then suggested that the employees
involved in the various matters discussed by him be called in and questioned
by Greer. Andrews objected to this procedure on the ground that it would inter-
fere with production. Kempton then offered to bring in these employees on
their own time after working hours, but the offer was not accepted. Greer,
however, agreed to investigate the facts of the various cases. The next day,
February 10, Superintendent Hill came to Kempton at work and told him that
the proper procedure in handling grievances was for Kempton to present the
complaints first to the foreman, and if that was unsuccessful, to come to the
superintendent and give him an opportunity to investigate the facts before
taking it up with the Greers. Kempton acknowledged that normally the pro-
cedure for handling grievances was as Hill outlined, but insisted that they were
now working through the Committee, and its' procedure provided that grievances
coming to its members from their various departments should be presented
through the Committee as a whole for investigation and possible action; that
in his case the Committee had authorized the presentation of various grievances
directly to management, and that was the reason why he and Andrews had gone
directly to Don Greer the day before.
3. Kempton's discharge
On February 11, during the morning rest period, from 10 to 13 employees
in the iron shop came to Kempton and said that they were going "upstairs"
to settle various matters they detailed, involving Shumacker's favoritism. At
Kempton's suggestion it was agreed that he go to Superintendent Hill. Kempton
then went to Hill's office where lie told the latter that a number of employees
in the iron shop were in an "uproar" about conditions He asked Hill if the,
J. W. GREER COMPANY 1351
latter had been informed that Gwen Coggeswell, a driller, had -ruined a great
amount of material. Hill replied that he had not been so informed. Kempton
stated further that Coggeswell came late to work in the morning, but was not
criticized and was permitted to make up her time. He intimated that Coggeswell
was late in the morning because she was "out late" with Shumacker. Hill
explained that the drilling machine used by Coggeswell was the only one available
which would drill panels ; that it was necessary, in order to, keep up production,
that the machine be used more than 8 hours ; that therefore Coggeswell worked
2 nights a week untill 9 o'clock and on the following mornings came in later
than the others, another driller using her machine in the meantime. Kempton
then apologized for his comments about Coggeswell's tardiness and Hill re-
sponded, "That is all-right." Kempton also stated that there were not enough
frames coming along and that the men would be out of work. Kempton then
said that in view of the feeling against Shumacker it might be advisable if
Hill put someone in Shumacker's place temporarily. He suggested Al Demers.
Hill replied that Demers was a drinking 'man and not dependable. Kempton
argued that Demers knew the work and if given an opportunity might change
his habits. Hill did not agree and asked Kempton if he would take the jab.
Kempton replied that he did not have the ability and then suggested that Hill
put one of the men from the machine shop in charge of the iron shop for the
time being. Hill did not reply to this suggestion. Kempton then asked for a
raise for employee Gosselin. Hill agreed to consider the matter and Kempton
returned to his department downstairs.
At the foot of the stairs Kempton was met by Gosselin who reported that Bill
Cleary, in charge of straightening the frame bases after they had been welded,
lead complained that Coggeswell, under Foreman Shumacker's instructions, was
drilling the welded bases before they had been straightened ; 10 that under such
circumstances the drilled holes would be out of alignment; that they would
have trouble like they had had before with rejections; and that Superintendent
Hill ought to be informed of the situation without delay before too much damage
had been done . After checking with Bill Cleary and ascertaining that the
situation was as Gosselin had outlined, Kempton immediately went upstairs to
Hill's office and found Foreman Shumacker with Hill. Kempton asked to see
Hill and when the latter stepped out of his office, Kempton told Hill what had
been reported to him about the bases and added that he was calling it to Hill's
attention immediately in order to avoid waste. Hill told Kempton to return
to his work, "They will be all right," and Kempton returned to his department.'
Early that afternoon Superintendent Hill came to Kempton at his work and
told him that the company had decided to release him immediately, but that he
would be paid for the entire day. Kempton asked for the reason, but Hill gave
him none. Hill then requested that Kempton leave the plant quietly and said "we
will see if we can straighten things out down here." At Kempton 's request Hill
then gave him permission to say goodby to the employees in the iron shop.
Kempton then started for the locker room and passed Savoy, Gosselin, and a
number of other employees. To each of them, on inquiry, Kempton stated that he
had been discharged and asked each one if they would go to Greer about it. Hill
was in a position where he could observe Kempton's actions. On hearing that
Kempton had been discharged, Savoy said in a voice, sufficiently loud so that Hill
heard it, "let's get the gang and we will go upstairs and straighten it out." On
hearing this statement, which he attributed to Kempton, Hill told Kempton that-
10 The welding process usually warped the bases to some extent
"The above findings as to what transpired on February 11 are based on a reconciliation
of the testimony of Kempton, Gosselin, and Hill.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lie could not do that and directed the latter to the locker room. Hill followed
Kempton into the locker room and said, "Well, Al, you are proving now that you
really are a trouble maker. There has been a lots of trouble caused here." None
of the other employees made any attempt to go upstairs to see Greer. Kempton,
after receiving his pay check, went to the office and talked to Don Greer. He
told Greer that it was a bad time to be fired as it was "rent week" Greer
replied that Kempton would be able to get another job and agreed to give him
a recommendation Kempton then asked Greer what answer he could make in
his work application form to the question "reasons for leaving" and thg latter
replied it would be all rignt to answer "personal reasons." During the conver-
sation, Fred Greer entered the office. After Don had left Fred told Kempton
that the respondent had his address and "if we find out that you were not the
cause of all the trouble-you- [can] come back." The following Monday Kempton
called on Don to get back his job, but was told that he could not return to work.
Kempton has not since been recalled. However, he received the following letter
of recommendation:
FEBRUARY 15, 1943
To Whom it May Concern
Mr. Albert Kempton has worked for us for approximately nine months.
We found him to be an excellent workman. He was employed in our steel
fabricating department and we found him reliable and dependable.
Due to employment of women in our steel department and changing con-
ditions which exist there he is being released from 'employment in this
company.
J. W. GTfEER COMPANY,
(s) DON S. GREER,
Don S. Greer,
Treasu7er.
DSG:p -
At this point it is advisable to consider Kempton's record and the reason for
his discharge. Kempton started to work for the respondent the first part of
July 1942, at 60 cents an hour drilling and doing certain other jobs in the iron
shop under Foreman Shumacker. After 2 or 3 months he was raised to 70 cents
an hour ; about December he was again raised to 72 cents, and a week or two
prior to his discharge to 80 cents an hour. These were all general raises. Kemp-
ton was the prime mover in bringing the Union into the plant in January 1943.
After he became a member of the Committee he retained his membership and
interest in the Union. In its answer, the respondent admitted the discharge
and refusal to reinstate Kempton and alleged that the sole cause was "his in-
subordination and other violation of plant practices ..." The respondent does
not question Kempton's ability as a workman, and in fact concedes his capability 12
The evidence clearly shows that he was a good worker. The first criticism of
Kempton arose as above found, about December 1942, when Kempton refused
to work on inserts as instructed by Assistant Foreman Ribeiro, because he did
not think it was his job to continue doing that type of work.13 Ribeiro reported
the matter to Foreman Shumacker. When Shumacker explained to Kempton
Don S. Greer testified on cross-examination :
Q Well , your statement is still correct in the letter of recommendation, that he was
a good workman , an excellent workman?
A. That is right.
13 The day prior to this incident Kempton under instructions from Ribeiro had worked
all day on inserts.
11
J. W. GREER COMPANY 1353
that he would see that the insert work was divided as it had been before, Kempton
resumed said work without further protest. Shumacker testified that the "in-
sert" misunderstanding was settled at the time and that lie found no fault with
Kempton until January 1943, after Shumacker had returned from the hospital
where he had been ill. Shumacker testified that he went to the hospital on
Christmas clay, was there a week, at home a week, and then returned to work.
Thus, Shumackcr's return was not earlier than January 8 He testified that at
that time, he noticed for the first time that Kempton was away from work a great
deal ; that he went to the welding room more often than necessary ; that he talked
to the straighteners in his department although his word did not require it. His
principal criticism of Kempton was that lie went to the toilet 4 or 5 times a
clay where he would remain as long as 15 minutes talking with other employees who
followed him there. Shumacker further testified that he criticized Kempton once
for going to the welding room as aforesaid and told him to stay on his job; that
on the occasion when he found him in the toilet talking, he told him he did not
want him to take men in there to talk with them, and that the next time he caught
him doing it he would discharge him. Kempton specifically denied that he had
ever been criticized for leaving his work. There was no corroboration of
Shumacker's testimony in this respect. In view of Shumacker's confusion as to
certain facts hereinafter discussed, and because an entirely different reason was
advanced by management for the discharge of Kempton, Shumacker's testimony
is not credited. It is found that the "insert" incident in December 1942, and
the hospital incident of January 13, 1943, were the only times Kempton was
criticized by management.
Shumacker testified that on February 11, before he went up to Superin-
tendent Hill's office he ordered a driller whom he partially identified as Tommy
Regan, to drill the bases before they were straightened ; that shortly after-
wards he ascertained that the man had stopped drilling under orders of Kemp-
ton ; that he then went to Hill's office ; that Hill then questioned him about
favoritism in the iron shop and also about drilling the bases before they were
straightened ; and that while he was in Hill's office Kempton returned and
complained about the drilling. Superintendent Hill's version of these events
on February 11, is that after Kempton's first trip lie talked to Shumacker
about the frames for the bases, saying that Kempton had claimed there were
not enough frames to keep the men busy; that Shumacker replied that the -
frames were coming along all right ; that while Shumacker was still in his
office Kempton returned and called Hill out of the office and told him about
the drilling of the bases before they were straightened ; that Hill then told
Shumacker of this additional complaint and instructed him to return to the
department and see how things were going along ; and that thereafter Shu-
macker reported to Hill that Kempton had improperly interfered by stopping
the drilling. It is obvious that Shumacker was confused in his testimony as
to what happened on February 11 It seems logical that if Shumacker had
known of Kempton's interference with Shumacker's drill-orders, he would have
reported that fact to Hill, when he first went to Hill's office. No such report
was made at that time. Furthermore, there was other testimony that the
drilling of the bases was by Gwen Coggeswell, instead of by Regan. Neither
Coggeswell nor Regan were called as witnesses although there was no showing
that they were not available: Shumacker's testimony as to what transpired
on February 11, is therefore not credited. Kempton's denial that he ordered
the drilling stopped, and Gosselin's testimony that he saw Shumacker cone
down the stairs, and saw him go into the iron shop and stop the drilling,
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after Kempton's second trip to Hill's office, are credited. It is found that
Kempton did not stop the drilling of the unstraightened bases, but that such
drilling was ordered stopped by Foreman Shumacker after Kempton had re-
ported the matter to Superintendent Hill.
The criticism of Kempton, brought out in his direct examination as a Board
witness, that he took too long a period of time going to the hospital on Jan-
uary 13, was not included as one of the criticisms of Kempton by the re-
spondent at the hearing. It is clear that this criticism in any event was trivial,
as Kempton took no longer time to go for treatments on the 13th than, he did
on the 2 previous days. Treasurer Don Greer testified that Kempton was dis-
charged because he "was causing some disturbance in his department-he per-
sisted in getting himself involved in matters which were not of his concern and
which-should have been taken up with the foreman-"; and this "gradually
undermined the authority of the foreman-we seemed almost to have had two
foremen down there- It finally was such a contributing factor to our lagging
behind in production and the rejections that were coming, that something had
to be done about it," He also testified : "we all knew that Mr. Kempton was
interfering with Mr. Shumacker's authority, undermining his authority in the
iron shop." Finally, in response to a question by the Trial Examiner as. to
why Kempton was discharged, Don Greer testified, "It was because over a
period of time we had found him meddling in affairs which undermined the
authority of the foreman of the department to such an extent that the foreman
couldn't operate the department and couldn't get the production out that he
was supposed to, and once that influence was eliminated, we got back on
schedule and have been ever since." 14
It is clear from the above, and the undersigned finds, that Kempton's dis-
charge was due to his activities in behalf of the Union, as well as his con-
certed action in behalf of employees, as a member of the Committee, all of
which began in January' 1943.
4. Events subsequent to the discharge
After Kempton's discharge, Alfred J. Savoy was elected to replace him on
the Committee. The elected employee members continued to function as they
had before with the Greers' attendance only incidental. The Committee sifted
and passed on to management suggestions for plant improvement and increased
production, some of which the respondent adopted. As in its earlier days, it
acted as a grievance committee for the employees and this was well understood
by management. In the March issue of respondent's house organ appeared a
statement that the Committee "was organized to provide opportunity for hear-
ings on grievances and other problems affecting jobs and working conditions
and production in the plant." After Savoy had been elected to the Committee,
Chairman Andrews told him to bring what complaints he could not handle
himself to Andrews. Andrews, who was also an assistant foreman, at no time
instructed Savoy first to take up the complaints with the foreman. Savoy at-
tended all Committee meetings thereafter save one. During this period about
a dozen grievances were registered with him by employees, mostly concerning
wages. Savoy did not present these grievances to the Committee 16 He testi-
19 Foreman Shumacker was released from the respondent's employ in the spring of 1042,
shoitly following Iiempton's discharge because "he wasn't getting the co-operation of the
whole depaitment," according to Superintendent Hill, whose testimony is credited in
this respect
"At the June S Committee meeting, Savoy presented a grievance on his own behalf
involving sick benefits.
J. W. GREEII COMPANY 1355
fled that he felt Andrews and Grey were against him and it would not do any
good.
In April 1943, Fred Greer came to the Committee and announced a vacation
plan that the respondent had decided on. Before Greer appeared, the Com-
mittee members had been discussing unions. According to Savoy, when Greer
first entered, Andrews asked Greer if the employees' jobs would be secure, if
the Union should get into the plant, and that Greer responded he could not
guarantee any job in that event; that he could not stop the Union, butl he
would fight it to the Supreme Court ; that a union once tried to get into his
father's plant in Watertown and his father said "that he would close the doors
before a union would get in there and that is just what he did, and sold it.•"
Fred Greer denied making the above statement. Andrews testified that he did
not at any time hear Fred Greer make any such statement Committee mem-
ber Whitenack also corroborated Greer. It is found that Fred Greer did not
snake the statement attributed to him by Savoy.
Some time during that same month, according to Savoy, Andrews came to
him at his machine and accused him of being the lead man for the Union,
and called him an agitator. Andrews denied that he ever said anything about
the Union, or that he called Savoy an agitator. Under all the circumstances,
Andrews' denial is credited and it is found that Andrews did not make the
statement attributed to him by Savoy.
Kenneth C. Hight, employed in the sheet metal department, testified that he
had an argument about the war with his foreman, Mello, about April 219; that
about an hour after this argument terminated, Mello came to him at work and
asked about the Union ; that he replied that the Union was a good thing ; that
it protected the worker who did not get such protection if he was not organ-
ized; that Mello then responded, "Well, for my part, I don't think the Union is
any good. It is just a racket. They take your money. They can't do anything
for you. Your wages are froze now, as a matter of fact. You are frozen here.
You can't even leave." At that time, according to Hight, Mello also asked him
if he had signed a union card, to which Hight replied that he had, and that he
would take the signed cards of any employees to whom he had given blanks.
Whereupon, Mello said that Hight "wouldn't be there long." During this period,
Hight for several weeks distributed union cards to employees during the lunch
hour and received about 20 applications. On one occasion, during a rest period,
he gave a card to Peter Sorello. Mello, according to Hight, saw this incident and
told him he should not be doing it as he would get into trouble. Mello was not
a witness and there was no showing that he was not available. The under-
signed credits the above uncontroverted testimony of Hight.
In April and again in May 1943, Hurvich, International representative of the
Union, passed out union circulars and cards in front of the respondent's plant.
On both occasions he or his assistant was instructed by the guard on the
premises to remain 30 feet away from the respondent's property. When Hurvich
expostulated about this regulation, the guard invited Hurvich to take the matter
up with the respondent's officials Hurvich did not do so. As heretofore found,
the respondent was engaged in defense work The guards, while paid by the
respondent, are auxiliaries of the First Army Command and subject to its instruc-
tions. Don Greer testified credibly, and the undersigned finds that the plant was
under military guard with instructions to prevent any unauthorized loitering
within 30 feet of the premises, and that the employees and officials of the respond-
ent were prohibited from parking their cars within these limits ; that on the
two occasions referred to, the guard was acting under his general instructions
and that the respondent had no knowledge of the incidents.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Concluding findings
Although the respondent had considered the creation of a Labor-Management
committee as early as the summer of 1942 there is no evidence that the employees
had any knowledge of that fact. It was not until the employees had started
to organize and rumors to that effect had come to the management's attention
that the respondent called a mass meeting on January 14, 1943 At this meet-
ing Don Greer, treasurer and co-manager with his brother of the respondent's
plant, emphasized the falling down in production and rejections of material,
particularly from the iron shop, and attributed it to the unrest in the plant.
Greer, after commenting on rumors of a union coming into the plant, told the
employees they could get results by coming to him or his brothers, without the
aid of outside help. The Committee was then organized as a means to over-
come the difficulties, and to act as a grievance committee. Thereafter it con-
tinued to function in that capacity with particular emphasis being placed, at
least by some of the elected committee members, on grievances. The respond-
ent contended at the hearing and in its brief, that the Committee is not a labor
organization. With this contention, the undersigned cannot agree. While the re-
spondent's officials at the hearing referred to the Committee as a labor-manage-
ment advisory committee, its activities in this respect were at the most very
incidental. The Committee consisted of members elected by the employees,
which included two supervisory employees,-Charles Andrews, an assistant fore-
man and Leland Grey, a foreman. That the labor-management functions of
the Committee were ostensible merely and not real, is evident from the fact that
the respondent designees as representatives on that committee,-the Greer broth-
ers, attended, after the first meeting, only when called in by the Commit-
tee or when they had some matters to present to the Committee. The Greer
brothers did not participate in any voting or in any other formal action taken
by the Committee. Most of the Committee's activities involved grievances of
employees, and the respondent so understood. The Board has held that a
grievance committee, functioning somewhat similarly to that of the instant
case, is a labor organization within the meaning of the Act 10 Under all the
circumstances of this case, the undersigned is persuaded and therefore finds, that
the Committee was and is a labor organization within the meaning of the Act.
The respondent does not dispute that the Committee was assisted by the
respondent in its initiation and formation, and was thereafter given financial
support in its administration. With two members of its supervisory staff on
the Committee, the respondent was in a position to and actually did dominate
the Committee's activities. It is found that the respondent dominated and in-
terfered with the creation and the administration of the Committee and con-
tributed support thereto.
The respondent's treasurer and co-manager, Don Greer, testified that Kempton
was discharged for meddling in affairs which undermined the authority of the
foreman of his department. This clearly refers to Kempton's activities as a
Committee member, who as such owed a duty to his constitutents to present to the
Committee grievances voiced to him by the employees in his department. These
grievances included charges of favoritism by Foreman Shumacker, and ex-
plained in part, the reasons for the unrest and dissatisfaction with which the
respondent was so concerned. Under instructions from the Committee on Feb-
ruary 9, these grievances were taken directly to Don Greer, one of the co-mana-
gers of the plant. Although it is clear that Kempton was the most aggressive and
"In the Matter of Julius Kayser and Co. and Textile Workers Union of America, 29
N L,R B 1025.
J. W. GREEiR COMPANY 1357
persistent member of the Committee, other Committee members submitted
grievances. At no time, up to February 10, did the respondent indicate to any of
the Committee members that this procedure was deemed improper. When on
February 9, Chairman Andrews and Kempton submitted to Don Greer the griev-
ances that the Committee had discussed, including the charges of favoritism
against Shumacker, Greer did not criticize such action but, on the contrary,
agreed to investigate the facts. The next morning Superintendent Hill told
Kempton that the proper way to handle grievances was to take them up first with
the foreman and then with him, the superintendent, before going to the Greers.
Kempton at that time insisted that it was the function of the Committee to re-
ceive and dispose of grievances in conference with management. In view of
Kempton's dual position as an employee and as a member of the Committee, his
activities can scarcely be said to constitute insubordination. Actually, Kempton
thereafter did not disobey Hill's admonition for when on February 11 about 13
,employees threatened to go directly to Hill in a body to voice their dissatisfac-
tion with conditions in the department, Kempton prevented this disruption in
production i;;= offering to go himself. It seems hardly necessary to comment,
that for Kempton to have gone to Shumacker to have the latter pass on adverse
criticism of his conduct of the department, would have been a futile gesture.
Furthermore, Superintendent Hill did not criticize Kempton for not going to
Shumacker first. Kempton's second visit to Hill that day also involved Shu-
macker to correct an emergent situation to avoid loss and to prevent waste.
That Kempton reflected good judgment in this matter is evident from the fact
that the process of drilling the bases before straightening, ceased almost im-
mediately after the matter came to Hill's attention." Kempton's actions on
February 11 undoubtedly did tend towards an unfavorable evaluation of Shu-
macker's ability and to that extent perhaps did tend to undermine the authority
of Shumacker, but Kempton was doing no more in his aggressive and probably
officious way, than the respondent had urged the employees to do, particularly
the members of the Committee, in order to eliminate rejections of defective
materials, and to speed up production.
It is found that on February 11 Kempton was acting as a Committee member
and did not violate instructions when lie reported to Hill. In January 1943,
the respondent knew that Kempton was the most active member of an unwelcome
outside union. To offset the outside union, the respondent created the Com-
mittee. Kempton, although a member of the Union, was elected by his de-
partment, the iron shop, to represent it on the Committee. Thereafter, his efforts
were largely directed to voicing grievances in behalf of the employees in the iron
chop to the Committee first, and then by its direction, he and Andrews as chair-
man of the Committee discussed the grievances with the respondent's officials.
He continued to retain his membership and interest in the Union, and was the
only member of the Union on the Committee at the time. By the discharge of
Kempton, the respondent got rid of the most active member of the Union, and at
the same time eliminated a serious threat to its complete control of the Com-
mittee 19 It is therefore found that Kempton was discharged on February 11,
1943, and has since been refused reinstatement because of his Union affiliation,'
14 Although Shumacker testified that it made little difference whether the bases were
drilled before or after they were straightened, neither the superintendent nor Don Greer
agreed with him in this respect. They both testified that the better practice was to
siraighten the bases before drilling
18 It is also to be noted that Kempton's discharge was v.itbout any previous warning.
Superintendent Hill's statement to him on February 9, about the way to handle grievances,
was hardly more than a suggestion. It carried not the slightest intimation that if
Kempton did not discontinue his activities he «ould be discharged.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and because of other concerted activities for the mutual aid and protection of
the employees, including his activities in behalf of the Committee.
The undersigned therefore finds that by the domination of the Committee ;
by the discriminatory discharge and refusal to reinstate Kempton ; by the
statement in September 1942 of Assistant Foreman Louis Ribeiro to a group
of employees that the respondent on an earlier occasion had thrown out a
union organizer; by Don Greer's statement at the mass meeting, January 14,
after referring to the Union, to the effect that the employees could get what
they wanted directly without calling in outside help ; and by Foreman Mello's
questioning of employee Hight as to his membership in the Union, and Mello's
disparaging statement about the Union to Hight, the respondent has inter-
fered with, restrained, and coerced 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 as 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, burden-
ing and obstructing commerce and the free flow of commerce.
V. THE. REMEDY
Since it has been found that 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 dominated and, interfered with the
formation and administration of the Committee and contributed support to
it. In order to effectuate the policies of the Act and free the employees of the
respondent from such domination and interference and the effects thereof,
which constitute a continuing obstacle to the exercise by the employees of
rights guaranteed them by the Act, it will be recommended that the respondent
withdraw all recognition from the Committee as representative of the re-
spondent's employees for the purpose of dealing with the respondent concern-'
ing grievances, labor disputes, wages, rates of pay, hours of employment, and
conditions of work, and to disestablish the Committee as such representative.
It has been found that the respondent discharged and discriminated in
regard to the hire and tenure of employment of Albert Kempton. It will
therefore be recommended that the respondent offer him immediate reinstate-
ment to his former or substantially equivalent position without prejudice to
his seniority and other rights and privileges, and that the respondent make
him whole for any loss of pay he may have suffered by reason of his discharge,
by payment to him of a sum of money equal to the amount which he normally
would have earned as wages from February 11, 1943, to the date of the offer
of reinstatement , less his net earnings ,19 during said period.
i
19 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 subsequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, 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., 3 L1 U. S. 7.
J. W. GREEK, COMPANY 1359
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. United Steelworkers of America, (C. I. 0.), and the Win The War Com-
mittee, are labor organizations within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration of
the Win The War Committee, and contributing support to it, the respondent
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employment of
Albert Kempton, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of
Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
6. The respondent did not engage in unfair labor practices by threatening
to close its plant or threatening employees with loss of seniority if the employees
joined a national affiliated labor organization, or questioning its employees re-
garding their union affiliations, as alleged in the complaint.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that J. W. Greer Company, its officers, agents, sue-
cessors, and assigns shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the formation or adminis-
tration of or contributing financial or other support to, the Win The War
Committee or any other labor organizations of its employees ;
(b) Recognizing the Win The War Committee as the representative of its
employees for the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other conditions
of employment ;
(c) Discouraging membership in the United Steelworkers of America (C. I. O.;
or any other labor organization of its employees, by discharging or refusing
to reinstate any of its employees or in any other manner discriminating in re-
gard to the hire and tenure of employment or any term or condition of employ-
ment of its employees ;
(d) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective bar-
gaining 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) Withdraw all recognition from and completely disestablish the Win The
War Committee as representative of any of its employees for the purpose of deal-
ing with the respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment or other conditions of employment;
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Offer to Alfred Kempton immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority and other
rights or privileges ;
(c) Make Alfred Kempton whole for any loss of earnings he may have suf-
fered by reason of the respondent's discrimination against him, by payment
to him of a sum of money equal to that which he normally would have earned
as wages during the period from the date of such discrimination to the date
of the offer of reinstatement, less his net earnings 20 during said period ;
(d) Post immediately in conspicuous places in and around its -plant in Cam-
bridge, Massachusetts, and maintain for a period of at least sixty (60) con-
secutive 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 desist in paragraph 1 (a), (b), (c), and (d) hereof; (2) that
the respondent will take the affirmative action set forth in paragraph 2 (a),
(b), and (c) of these recommendations; and (3) that the respondent's em-
ployees are free to become and remain members of United Steelworkers of
America (C I.0.), and that the respondent will not discriminate against any
employees because of their membership in or activity on behalf of that organi-
zation ;
(e) Notify the Regional Director for the First 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
receipt of this Intermediate Report the respondent notifies said Regional Di-
rector in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
It is further recommended that the complaint be dismissed insofar as it
alleges that the respondent has engaged in unfair labor practices within the
meaning of Section 8 (1) of the Act, by threatening to close its plant, or threaten-
ing employees with loss of seniority if the employees joined a national affiliated
labor organization, or by questioning its employees regarding their union affilia-
tions
As provided in Section 33 of Article II of the Rules and Regulations of the Na-
tional Labor Relations Board, Series 2-as amended, effective October 28, 1942-
any party may within fifteen (15) days from the date of the entry of the order
transferring the case to the Board pursuant to Section 32 of Article II of said
Rules and Regulations, file with the Board, Rochambeau Building, Washington,
D C, an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or
proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof.
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 to the
Board within ten (10) days from the date of the order transferring the case to
the Board.
Dated July 29, 1943.
J. J. FITZPATRICK,
Trial Examiner
20 See footnote 19, supra.