Mackay Radio & Telegraph Co.

National Labor Relations Board - Board Decisions

Feb 20, 1936

1 N.L.R.B. 201 (N.L.R.B. 1936)

In the Matter Of MACKAY RADIO & TELEGRAPH COMPANY, A CORPORA-
TION and AMERICAN RADIO TELEGRAPHISTS' ASSOCIATION, SAN
FRANCISCO LOCAL No. 3 -
Case No. C-16.-Decided February 00, 1936
Communications Industry-Iliterference, Restraint or Coercion: espionage;
employment of strike-breaking agency-Strtike-Employee Status: during
strike-Discrimination: non-reinstatement following strike-Reinstatement Or-
dered, Strikers: discrimination in reinstatement-Back Pay: awarded.
Mr. Bertram Edises for the Board.
Mr. U. H. Merrick, of New York City, and Mr. Lawrence Living-
ston, of San Francisco, Cal., for respondent.
Mr. Stanley S. Surrey, of counsel to the Board.
DECISION
STATEMENT OF CASE
On October 15, 1935, American Radio Telegraphists' Association,
San Francisco Local No. 3, filed with the Regional Director for the
Twentieth Region a charge that the Mackay Radio and Telegraph
Company had engaged in and was engaging in unfair labor prac-
tices contrary to the National Labor Relations Act, approved July 5,
1935. On November 9, 1935, the Board issued a complaint against
the Mackay Radio & Telegraph Company, hereinafter referred to as
the respondent, said complaint being signed by the Regional Director
for the Twentieth Region and alleging that the respondent had com-
mitted unfair labor practices affecting commerce within the meaning
of Section 8, subdivisions (1), (2) and (3) and Section 2, subdivi-
sions (6) and (7) of the National Labor Relations Act. In respect
to the unfair labor practices, the complaint' alleged, in substance :
1. The respondent, through its agents and employees, during the
period approximately October 7, 1935, to October 10, 1935, refused to
reemploy A. B. Loudermilk, P. D. Phelps,2 L. K. Bash, L. N. Rorie
and G. E. Palmer, operators employed by the respondent at its San
Francisco office, for the reason that each had joined and assisted a
1 The complaint was amended during the hearing on . the case so as to make a few of
the allegations conform to the proof there adduced . The respondent acquiesced in these
amendments.
2 Erroneously referred to in the complaint as "P. K. Phelps".
201
202 NATIONAL LABOR RELATIONS BOARD
labor organization known as American Radio Telegraphists ' Asso-
ciation, San Francisco Local No. 3 , said refusal being contrary to
Section 8 . subdivisions ( 1) and (3).
2. The respondent , by its agents and employees, during the period
approximately October 7 , 1935, to October 10 , 1935, did initiate and
form a labor organization or plan and did dominate and interfere
with the administration of said labor organization or plan and con-
tribute financial and other support thereto contrary to Section 8, sub-
divisions (1) and (2).
The complaint and accompanying Notice of Hearing were served
on the parties in accordance with Article V of the National Labor
Relations Board Rules and Regulations-Series 1. The respondent
filed an answer to the complaint admitting the allegations regard-
ing the nature of its business but denying the allegations with respect
to the unfair labor practices . Commencing on December 2, 1935,
and concluding on December 20, 1935, a hearing was held at San
Francisco , California , by Henry Eickhoff , Jr., the Trial Examiner
designated by the Board , and testimony was taken . Full oppor-
tunity. to be heard, to examine and cross-examine witnesses and to
introduce evidence bearing upon the issues was afforded to all parties.
The respondent at the outset moved to dismiss the complaint on
constitutional grounds. It then participated in the hearing and at
the close of the Board 's presentation of evidence moved to dismiss
the complaint on the ground of failure of proof. This motion was
denied.
On December 19, 1935, the Board, pursuant to Section 35, Article
II of its Rules and Regulations , directed that the proceeding be
transferred to and continued before it . The Board denied 'a motion
by the respondent to submit the case to the Trial Examiner with
directions that he prepare and file an intermediate report. On Jan-
uary 20, 1936 , counsel for the respondent pursuant to his request
orally argued the case before the National Labor Relations Board, all
members being present. Upon the entire record in the case, includ-
ing the stenographic transcript of the hearing, the documentary and
other evidence received at the hearing , the briefs submitted , and the
oral argument , the following findings of fact are made.
FINDINGS OF FACT
I. MACKAY RADIO & TELEGRAPH COMPANY
The Mackay Radio & Telegraph Company is a California corpora-
tion engaged in the receipt and transmission by telegraph , radio and
cable of national and international communications . Its principal
office on, the West Coast is in the city of San Francisco and it has
other offices in Oakland , Los Angeles and San Diego, California;
DECISIONS AND ORDERS 203
Portland, Oregon; Seattle and Tacoma, Washington; Honolulu,
Hawaii, and Manila, Philippine Islands. In the course and conduct
of its business at these offices , the respondent receives and transmits
telegraph , radio and cable messages from and to states and territories
of the United States, including the State of California , and foreign
countries . Its business is thus that of the continuous transmission
of intelligence among the states of the United States, its territories,
and foreign countries by means of a highly developed and integrated
communications system. The respondent maintains an operating
office in San Francisco which in Mackay parlance is known as the
HB office and -also a branch office in the Stock Exchange Building.
Some of the circuits operated at the HB office are as follows : San
Francisco to Los Angeles , San Francisco to Portland , San Francisco
to Seattle, San Francisco to Honolulu , San Francisco to New York,
San Francisco to Tokio, San Francisco to Shanghai . The radio and
telegraph operators employed at the HB office are the persons who
receive and transmit messages on these circuits.
The vice-president in charge of operations for the respondent is
Ellery Stone , whose office , and that of the President , is in New York
City. H. L. Rodman is the General Superintendent of the respond-
ent and is actively in charge of its operations on the Pacific Coast.
Stone and Rodman are in daily communication with each other re-
garding the operating problems of the respondent. The secretary
of the respondent, Captain Edwin H. Dodd, who has his office in
San Francisco , is Rodman 's assistant for traffic operations and is
also the purchasing agent. Andrew Jorgensen is the traffic man-
ager in immediate charge of the HB operating force and reports to
Captain Dodd. He has authority to hire and discharge operators
and exercises daily supervision over the men. Three or four super-
visors assisted Jorgensen in the conduct of the HB office. The
metropolitan manager for San Francisco is F. L . Dewey, who is in
charge of the commercial side of the work and the solicitation of
customers . He supervises the. Stock Exchange office.
II. THE FORMATION AND ACTIVITY OF THE SAN FRANCISCO LOCAL OF THE
AMERICAN RADIO TELEGRAPHISTS ' ASSOCIATION
A. Formation and activity of the local
The American Radio Telegraphists' Association , hereinafter re-
ferred to as ARTA, is a nation-wide labor organization which num-
bers radio operators among its members. The San Francisco Local
of this organization , hereinafter referred to as the Local , was organ-
ized in the early part of 1934. The Local was divided into two
divisions , one composed of the marine radio operators and the other
.of the land or point to point operators . The point to point division
204 NATIONAL LABOR RELATIONS BOARD
was divided into three groups, each composed respectively of all
those members who were operators employed by one of the three
large communications companies operating on the Pacific Coast.
One of these three groups was thus confined to the operators of the
respondent employed in its San Francisco offices.
The number of respondent's operators who were members of the
Local grew steadily in the ensuing months. As the Local thus in-
creased in strength it commenced to negotiate with the respondent.
In June 1934 a committee from the Local representing the Mackay
group therein met with Tuel, then vice-president of the respondent,
to discuss its demands for increased wages and certain working
conditions in the HB office. Some of these demands were granted;
final decision on the others was postponed until January 1935 at the
respondent's request and then they were refused.
In September 1934 the San Francisco Local sent one of its mem-
bers, Loudermilk, to New York for about a month to aid in the
ARTA organization of the Mackay operators in that city in an
attempt to prevent undermining of the San Francisco wage scale by
payment of a lower scale in New York. In February 1935 an Ad-
ministrative Committee of the Local was appointed for the purpose
of contacting all of the operators in the Mackay system,3 ARTA
members and nonmembers, to ascertain their views on wages and
working conditions. A lengthy questionnaire which covered these
matters in detail was sent to the Mackay operators. After the re-
ceipt and compilation of this material, members of the local pre-
pared a general agreement concerning wages and working conditions
for the entire Mackay point to point system. This agreement was
sent to all of the ARTA locals and. ratified by them. It was then
presented by the national officers of ARTA to the Mackay officials
in New York in June 1935. They requested and were given more
time in which to consider the agreement in view of contemplated
bankruptcy proceedings that might affect the Mackay companies.
The agreement was again presented in September 1935. The na-
tional officers of ARTA had requested that the Local send O. M.
Salisbury to New York to assist them in the negotiations since they
were not too familiar with point to point conditions. Salisbury, who
was chairman of the point to point division of the Local and an
operator employed in the HB office, went East for this purpose. He
8 The Mackay Radio & Telegraph Company of California, the respondent herein, is a
subsidiary of a Massachusetts voluntary trust having the name "Mackay Companies".
More than 99% of the preferred and common stock of that trust is owned by the Postal
Telegraph and Cable Corporation, a Maryland corporation, all of whose common stock
is owned by the International Telephone and Telegraph Corporation There are a number
of Mackay offices in the Eastern and other portions of the United States which are
operated by the Mackay Radio & Telegraph Company of Delaware. Stone Is also the
vice-president in charge of operations for the Delaware concern The term "Mackay"
when used in the decision, unless the context indicates the contrary, refers to the entire
Mackay system and thus includes all of the officers and operators in that system.
DECISIONS AND ORDERS 205
was given a leave of absence, the reason for the trip being clearly
understood by the respondent. At the same time, at a meeting of
the Local held prior to September 1935, the members voted in favor
of a strike if such action became necessary to support their demands.
The marine operators had also presented the Mackay companies
with a system agreement. On September 13, Salisbury wired Bash,
who was chairman in his place, that while the Radio Corporation of
America had signed such a marine agreement, Mackay had refused
and was recommending non-ARTA marine operators to the steam-
ship companies. He suggested a special meeting to consider joint
action on the two agreements. Rathborne, Secretary of the Local,
Bash and Russ, who was marine superintendent of the respondent,
conferred that morning on the question of recommending non-ARTA
operators but reached no agreement. Stone, the new vice-president
in charge of operations for the respondent happened to be in San
Francisco that day. In the afternoon a number of marine operators
and ARTA members of the point to point Mackay group of the
Local conferred with Stone. The' marine agreement was discussed
to some extent, Stone pointing out defects in the agreement RCA
had signed. The point to point ARTA operators stated that they
were considering joint action on the two agreements. Stone replied
that he was taken by surprise and requested time to return to New
York to study the point to point agreement. The request was
granted. That evening a joint meeting of the marine and point to
point members was held and a resolution adopted to the effect that
the two divisions should unite for joint action on the two agreements,
so that one could not be adopted to the exclusion of the other, and
that the Mackay officials should have until September 23 to execute
the agreements unless the ARTA officers negotiating such agree-
ments believed negotiations were proceeding in a satisfactory man-
ner. The vote was overwhelmingly in favor of the resolution, only
three or four voting against it. In view of the strike vote taken
at the meeting prior to September 1, the action taken at the Septem-
ber 13 meeting was really the fixing of a deadline at which the ARTA
officers could call a strike if they deemed one necessary. At this time
nearly all of the HB operators were members of the Local. As the
ARTA admitted supervisory officials to membership, some of the
supervisors in that office were also members. .
B. The October 7-8 strike
On October 4 the ARTA negotiators in New York decided that a
strike was advisable in view of the unsatisfactory state of the nego-
tiations. Salisbury telephoned the Local and a meeting of the point
to point group was held that evening. The strike had been set for
12 o'clock midnight, San Francisco time, and was to be nation-wide
206 NATIONAL LABOR RELATIONS BOARD
over the Mackay system. A strike committee for San Francisco was
appointed at the meeting. At midnight all of the HB office force
then on duty went on strike, with the exception of the official in charge.
The strike was conducted in an aggressive fashion. Picketing was
commenced and continued during the entire strike, but in a peaceful
fashion. With the exception of one or two men, the entire force,
including the supervisors joined in the strike. They were joined by
the men at the nearby transmitting stations at Palo Alto and Lobitos.
Elsewhere the strike was not so successful. It was planned and
called on a nation-wide basis but the response varied. The strike at
Seattle lasted for only a few hours. Only one man went on strike in
Los Angeles. No one walked out at the Mackay offices in Washington,
D. C.; New Orleans, Louisiana; West Palm Beach, Florida and Rock-
land, Maine. A few went on strike in Chicago but their action was
ineffectual. In New York the operators remained on strike for a few
hours but by October 5 most of them had returned to work. How-
ever, the men in the New York receiving and transmitting stations
remained on strike for a longer period. Only at Portland, Oregon
was the strike as effective as at San Francisco.
The respondent immediately concentrated its facilities in an at-
tempt to reopen the San Francisco office and maintain its communi-
cation channels. The transcontinental operations were to be
continued by relaying messages through Los Angeles. The coastwise
service was being handled on Morse wires leased from another com-
pany. The respondent could thus dispense with radio operators on
these circuits. However, radio operators were needed to maintain
the trans-Pacific circuits. The respondent decided to meet this prob-
lem by having employees transferred from other stations, and opera-
tors from the Los Angeles office were dispatched at once to San
Francisco. On Monday, October 7, a plane left New York with
seven operators from that office. Two more operators were taken on
the plane at Chicago.
Strike enthusiasm was maintained in San Francisco throughout
Saturday and Sunday, October 5 and 6. But Monday brought dis-
couragement and the ranks commenced to waver. Disheartening ru-
mors were prevalent-the respondent was going to abandon the coast-
wise circuits entirely, the New York operators had let them down,
and so on. The men knew of the presence of the "strikebreakers"
from Los Angeles and of the plane that was bringing more from the
East. At a meeting held in the ARTA hall Monday afternoon some
of the members-McLaughlin, a supervisor, and Spanover, an oper-
ator-urged the men to return now to save their jobs. Only the per-
suasion of more militant voices prevented a decision then and there
to abandon the strike. That evening Loudermilk called Salisbury in
New York and after a brief discussion of the general situation, ad-
DECISIONS AND ORDERS 207
vised him to contact Stone next morning to arrange a return to work
pending further negotiations. But on Monday night the strike was
still on and the question of returning to work at San Francisco had
been deferred until the regular morning meeting of Tuesday.
As Hatch, the chief electrician of the HB office and a union mem-
ber, left the ARTA hall that Monday evening he met Burtz, an oper-
ator also on strike. Hatch confided his belief that the strike was lost
and suggested that they call Jorgensen, the traffic manager and the
person in charge of the HB operating room, to see if the men could
return to work. Burtz agreed and the two spoke to Jorgensen, who,
was at the office, on the telephone. This was about ten o'clock in
the evening. Jorgensen said that the men could come back if they
returned in a body. Hatch then agreed to call the men together if
Jorgensen would supply him with a list of telephone numbers and
addresses. At Hatch's suggestion it was decided that the three would
meet in his apartment at once. Jorgensen arrived in half an hour
with a list of the operators in the HB office. He said that certain
of the strikers would have to make out applications for reemployment
to be passed on by Stone in New York and proceeded to check eleven
names on the list. Hatch referred to the resulting list of eleven as
a blacklist, using however a more descriptive but less polite expres-
sion. He then suggested that he would at once call the men to a
meeting at the Bellevue Hotel and asked Jorgensen to be present to,
state the company's position. It was understood by all that this
was a meeting of the men as HB employees and not as union mem-
bers-the ARTA was out of the picture for the purposes of the
meeting. On his way to the hotel Burtz notified McLaughlin of
the meeting.
At the hotel Jorgensen arranged for a suite of two rooms. Hatch
and Burtz proceeded to telephone as many of the operators as they
could 4-with an important exception. Hatch decided not to notify
the eleven on the special list. He testified at the hearing that as the
men at the meeting would have to vote on returning to work without
these eleven he thought that their presence at the meeting might be
embarrassing. He notified Jorgensen of this decision and the latter
acquiesced. In addition, although Jorgensen saw Loudermilk, who
was on the list, at the hotel before the meeting had commenced he
did not tell Loudermilk that a meeting was to be held. Jorgensen
in the meantime had arranged for a detail of police to be present at
the hotel in case trouble arose.
It was now about 2 or 3 A. ' M. in the morning. At about 4: 30
A. M., when 36 operators had finally arrived, the meeting got under
4 Jorgensen about a week later reimbursed Hatch for the telephone calls The hotel on
December 13 sent a bill for the rooms to Jorgensen as traffic manager of the Mackay
Company The bill had not been paid at the time of the hearing.
208 NATIONAL LABOR RELATIONS BOARD
way. Hatch nominated Burtz for chairman but Burtz declined.
Hatch then nominated McLaughlin and upon his acceptance the men
confirmed the choice . McLaughlin stated that he understood the
meeting was called to decide whether the men desired to return to
work. He then called on Jorgensen to state the company's position.
Jorgensen who had been standing in the next room near the open
doorway between the two rooms stepped forward . He said that the
strike would be forgotten and that all could return to work-with the
exception of eleven men who had to file applications for reemploy-
ment which would be sent to Stone for approval . The list of eleven
was then read twice-York , Palmer, Bash, Salisbury , Rone, Louder-
milk, Patterson , Humphries , Dwyer, Westcott and Hardm.5 Gen-
eral discussion ensued. Some of those on the list, including Louder-
milk, York, Palmer and Patterson , had heard of the meeting from
other sources and were present . Loudermilk pointed out that a vote
to return to work would mean the jobs of the eleven on the list. It
was finally decided that a two-thirds vote would govern and that the
men on the list who were present could vote if they so desired. A
vote was taken on the question of whether they should return to
work-22 voted yes, 6 voted no and 8 failed to vote. Jorgensen then
in effect said , "Let's all go back to work in a body". Most of the men
went at once to the HB office and started to work. It was then about
6 A. M. in the morning . The news spread and other men reported
to work in person or by phone Tuesday morning . The strike had
collapsed in San Francisco . At one o'clock E. S. T. the ARTA vice-
president in New York formally notified Stone that the nation-wide
strike had been called off.
By late Tuesday afternoon all but four of the striking operators
in, San Francisco had returned to work. These four were Rone,
Palmer, Bash and Loudermilk. That evening Palmer and Louder-
milk applied for reinstatement and the other two made a similar
request on Wednesday . All four were informed that no vacancies
then existed but that they should fill out applications for reemploy-
ment which would be forwarded to Stone in New York. The four
filled out applications which read , "please reinstate me in the $B
Operating Force in my former position as Class A operator". Jor-
gensen forwarded the applications to Captain Dodd, his superior,
stating :
"This application for employment , together with a number of
others, which are being forwarded at the same time, is subject
to final approval by Mr. E. W. Stone, Operating Vice-President.
6 This is the probable sequence of the names according to the record As will be
developed later , the main groupings are here important and the above appears accurate
in that respect.
DECISIONS AND ORDERS 209
"There are no vacancies in the HB Operating force at present,
and there were no vacancies at the time the applicant made his
verbal application to me."
The applications were sent by Rodman, General Superintendent for
the Pacific Coast, to Stone in New York, stating :
"Forwarded.
"In view of the fact that no vacancies now exist in the HB
Operating force it is not recommended that Mr. Palmer be
employed as requested by him. °
"It is recommended that his application be placed on file and
given consideration at such future time as any vacancies may
occur in the HB Operating Room."
The applications were returned by Stone to Rodman, stating :
"Returned.
"Your recommendation is approved and there is no objection
to favorable consideration being given this application when a
vacancy occurs at San Francisco." 6
The applicants were notified of their status . They have not yet been
reinstated by the respondent. Jorgensen stated to one of them that
he did not believe there would be any vacancy in the HB force at
least until the summer of 1936.
III. THE UNFAIR LABOR PRACTICES
A. The discharges of the four HB operators
The complaint alleges that these four operators were refused re-
instatement because of their union membership and activity. The
respondent denies this allegation and states that the men were refused
reinstatement solely because at the times they applied there were no
vacancies existing in the HB operating room . To arrive at a decision,
we must first consider the chain of events that led to the placing of
these men on the list of eleven , the circumstances surrounding their
application for reinstatement and the nature of both their work for
the respondent and their activities in behalf of the union.
1. The discharges separately considered
Bone. Rone had entered the employ of the respondent in the spring
of 1927 but had later left. He had resumed his connection with the
respondent in January 1930 and had been with it ever since. He
was a Class A operator on the basis of the respondent 's classification
6 Board Exhibits 4 (Palmer ) ; 11 (Stone ) ; 6 (Bash) ; 3 (Loudermilk)
210 NATIONAL LABOR RELATIONS BOARD
system 7 and was earning the top salary of $180 a month for an opera-
tor at the time of the strike. He had joined the ARTA Local at the
time of its formation and ever since had been an active member and
among the leaders in its activities. He was a member of the Admin-
istrative Committee which had contacted the Mackay operators as
part of the preparation of a national agreement. Moreover, he had
contacted the officials of the respondent many times in regard to union
matters, including the conferences with Tuel in 1934 and with Stone
in September 1935. During the strike he was a picket captain and
was active in his duties, at one time visiting two of the supervisors
at their homes and obtaining their applications for membership in
the Local.
Rone did not attend the hotel meeting. At about seven o'clock
Tuesday morning, October 8, he met McLaughlin and was informed
by him that the men had returned but that he was on the blacklist.
Rathborne, secretary of the San Francisco Local, informed him of
conditions in general. Rone told him that he did not think that he,
an officer in the Local, should apply for work until the other men had
returned. Moreover, he had been informed that he was on the black-
list and thought he would not be reinstated. Consequently, Rone did
not apply until about 3: 30 o'clock Wednesday afternoon, October 9.
Jorgensen then informed him that there were no vacancies and that
he would have to sign an application for reemployment, which he
then did.
Bash,. Bash had been employed by the respondent since February,
1927. At the time of the strike he was a Class A operator receiving
$180 a month. He also was a charter member of the ARTA Local
and one of its leaders. He was one of the three members of the
Grievance Committee, or as it was later called, the Relations Com-
mittee of the Local that dealt with the respondent. When Salisbury
went East, Bash became chairman of the point to point division in
his place. He had participated in the Tuel and Stone conferences
and during the strike was active in the picket line.
An operator informed him of the hotel meeting and he spoke to
Burtz,and later to Hatch by telephone at the hotel, both of the calls
being made by him. Hatch said that it was an HB employees meet-
ing on the question of returning to work and that Bash could neither
attend nor vote. Whereupon Bash fainted. Next day York in-
formed him of what had happened, stating that both were on the list
but that he, York, had been temporarily employed. Bash thought
he would be treated differently from York, since the latter was a
supervisor. Bash was too ill to apply for work until Wednesday
' The HB operators are classified from Class A through Class E. The Class A operators
are assigned to those circuits that demand first -class operators and are thus regarded by
the respondent as its best operators.
DECISIONS AND ORDERS 211
October 9, when he saw Jorgensen at about 10 o'clock in the morning.
The latter told him that there were no vacancies but that he could
fill out an application and he did so. He was employed on a tempo-
rary job elsewhere at the time of the hearing and had then earned
$200.
Loudermilk. Loudermilk also was a Class A operator earning the
top salary of $180 a month. He had been with the respondent since
1933 and previously had spent seven years with RCA. He was prob-
ably the most active ARTA leader in 1934, being chairman of the
point to point division and for a time a member of the Grievance or
Relations Committee of the Local. He had conferred with Tuel in
1934 and later had made a trip to New York to aid in the organization
of the ARTA Local at the office in that city. During this trip he had
numerous contacts with the Mackay officials with respect to the con-
ditions at the Chicago and New York offices and the operators there
employed. He was not active in 1935 in the relations of the Local
with the respondent because of some disagreement with the national
officers of ARTA. He was on the picket line during the strike.
Loudermilk attended the hotel meeting. Prior to the commence-
ment of the meeting Loudermilk and Jorgensen had a private con-
versation in which the former questioned him about the rumor that
there was a special list. Jorgensen admitted that and when Louder-
milk said he assumed he was on it, also admitted the correctness of
the assumption. Loudermilk applied for work Tuesday afternoon
accompanied by Palmer. They asked to see Rodman between 2 and 3
P. M. but were informed by his secretary that he was out. The other
officials were not then in their offices so they left and returned about
5 P. M. Rodman avoided seeing them, telling his secretary he was
too busy. However, they decided to wait. By chance, they met with
Rodman in his office at about 6 P. M. and applied for reinstatement.
Rodman told them they had to file applications which would be for-
warded to Stone. Loudermilk asked Rodman what he thought of the
chances of Stone's approving his application and he replied that
they were not "very good. . . . The final decision on your applica-
tion, and some others, is going to be made by Mr. Stone; and you
must remember you have a national reputation. You are known in
New York and in Chicago also as being a very active-or something
of an agitator". Rodman in his testimony then added, "I may have
put it a little stronger than that." Loudermilk thought that he did
for he testified that Rodman said, "Well now, Loudermilk, why
should he (Stone)-after all, you know you are the real leader-the
ring leader of this organization. Why you are the No. 1 public
enemy as far as we are concerned, you are the head of the list ! Why
you have a national reputation for causing us trouble !" After talk-
ing with Dodd and Jorgensen, one of whom told them that there
212 NATIONAL LABOR RELATIONS BOARD
were no vacancies , they filled out applications , the time of applica-
tion being placed at 9 P. M., October 8. At the time of the hearing
Loudermilk had earned about $245 .99 through employment as a
hosiery salesman.
Palmer. Palmer had been with the respondent since May, 1930.
At the time of the strike he was a Class A operator receiving a
salary of $180 a month . One of the leaders of the Local, he was a
member of the Grievance, or Relations Committee in 1935 and had
often met with the respondent 's officials on union matters , including
the two meetings with the vice-presidents , Tuel and Stone. He was
a member of the Strike Committee and picketed during the strike.
He was at the hotel meeting , hating been notified of it by an operator.
With Loudermilk he applied Tuesday afternoon , as described above.
Mention should be made of two of the other men on the list-Salis-
bury and York . The former was a Class A operator who also was a
leader in the Local . He was the chairman of the point to point
division of the Local and at the time of the strike was in New York
assisting the ARTA officials negotiating with the Mackay officials. He
did not apply for reinstatement since he was on leave of absence, but
a short time before the expiration of that leave he asked to be per-
mitted to resume his work in accordance with the understanding
governing leaves with permission . He was required to answer a
series of questions prepared by the respondent's attorney and for-
warded to Rodman by Stone . These questions centered about his
"loyalty" to the respondent in the light of his union affiliation and
his views in regard to working conditions . In his answers Salisbury
defended his union activity and stated that the respondent had shown
a distinct "anti-labor attitude ". But he knew of no reason why he
could not give "undivided loyalty" to the respondent unless that
term meant that he could not belong to a labor organization. The
answers were sent to Stone . A day before his leave expired Rodman
recommended to Stone that Salisbury should not be reinstated.
Stone, who had the answers by that time , approved the recommenda-
tion and Salisbury was discharged . This occurred about the first
of December, 1935.
York was a supervisor at the time of the strike. He was a fairly
active union member, though not as active as the five leaders men-
tioned above . He was a member of the Administrative Committee
and had also participated in the Tuel and Stone conferences. After
his return to work he was demoted from supervisor to Class A
operator with a $10 reduction in monthly pay. There was ap-
parently one more supervisor than was needed after the strike and
York was the supervisor who was demoted although he was next
to last on the seniority list of supervisors.
DECISIONS AND ORDERS 213
Returning to the above five operators on the list, Rone, Palmer,
Bash, Loudermilk and Salisbury, the first four of whom are involved
in the complaint in this case, we find that all are Class A operators.
At the time of the strike, Loudermilk, Rone and Palmer were work-
ing on the San Francisco-New York circuit and Bash was on the
San Francisco-Honolulu circuit. All five were efficient employees.
Captain Dodd testified that of the five, Rone, Palmer, Salisbury
and Loudermilk were good operators and Bash was fair but not in
their class. Jorgensen said that these five were among his best
operators, although he likewise thought Bash was not as capable as
the others. McLaughlin, who supervised Bash, thought that he was
a first class operator. At no time during the strike grid in the period
following it was their efficiency questioned. This group of five were
the unquestioned leaders of the Local and its most active members.
Their leadership and activity had become known to the respondent
through repeated contacts with its officials.
2. The Respondent's testimony regarding the chain of events
preceding the discharges
On Sunday, October 6, Rodman, General Superintendent of the
respondent and in charge of operations on the Pacific Coast, con-
ferred with Captain Dodd, the Secretary of the respondent and
assistant to Rodman in charge of traffic operations. Rodman said
that Stone had informed him that seven Mackay operators from
New York and two from Chicago were to be sent to San Francisco.
Any of these operators and any of the Los Angeles operators then
in San Francisco who desired to remain permanently in San Fran-
cisco were to be allowed to do so pursuant to Stone's instructions.
Rodman thought two of the Los Angeles operators desired to remain.
Under these circumstances the belief was expressed that certain of
the San Francisco operators would not be taken back when the strike
was over.
On Monday afternoon, October 7, Rodman conferred with Jorgen-
sen, who was in charge of the HB operating room under Dodd and
Rodman. Rodman repeated to him what he had told Dodd the
previous day. If all of the nine from the East remained in addition
to the two from Los Angeles the HB office would not be overstaffed
unless some of the San Francisco operators were not reinstated.
Rodman stated : "Jorgensen, in such a case we will first take back the
men that are most desirable, or most satisfactory to the company."
The men in the HB room were then discussed for about an hour, their
qualifications, operating ability and general desirability being con-
sidered. Rodman thought Jorgensen had a clear understanding as to
which of the operators were most desirable to the respondent but
214 NATIONAL LABOR RELATIONS BOARD
he took pains to impress upon him the idea that in deciding which
men to reinstate, careful thought should be given to their general
desirability and " overall general satisfaction " to the respondent as
distinguished from their mere operating ability. No specific men
were agreed upon but Rodman was " sure " Jorgensen understood
him.
At about ten o'clock Monday evening Jorgensen received Hatch's
phone call. He asked Hatch to wait and at once went into Rod-
man's office and asked, "if the men should want to return to work,
should I take them back"? Rodman replied, "By all means. But
remember, you are to take care of the men from New York and Los
Angeles, but handle that in your own way." Jorgensen realized that
he had to provide jobs for eleven men if the nine from the East de-
cided to remain in San Francisco in addition to the two from Los
Angeles. He decided to choose eleven of the San Francisco operators
to whom only temporary employment. would be given when the strike
was over. If all of the eleven transferred operators decided to re-
main in San Francisco, these eleven San Francisco operators would
have to be dropped. If only a few of the eleven chose to remain, then
only a corresponding number of the San Francisco operators would
not be reinstated and the temporary status of the remaining opera-
tors on the list of eleven would be changed to permanent employ-
ment. Those to be dropped in that event would be carefully selected
from the entire list of eleven. In other words, the crux of the prob-
lem was the uncertainty as to the number of transferred operators
that would remain. Since the total number transferred was eleven,
Jorgensen decided that he must be prepared for the contingency that
all might stay and hence to avoid the embarrassment of permanently
reinstating some San Francisco operators and then being forced to
drop them, he determined to give a temporary status to an equal num-
ber of San Francisco operators. But since it was more than possible
that some of the transferred operators would not stay, as had been
the case with the Los Angeles contingent, there would remain the
problem of correspondingly paring down the list of eleven. This
problem Jorgensen decided to leave for the future when the number
became certain-he would then weigh each man on the list of eleven
and only after such deliberate consideration would he determine
whom to keep and whom to drop. His immediate concern was the
list of eleven and to this task he turned his attention. He had only
a short time-for he met Hatch in half an hour. It was too short
a time to enable him carefully to consult the seniority list or the
"error" list containing the number of errors per operator. But he
had discussed the men with Rodman that day and he had been told
that he was to pick those most desirable to the respondent on an "all
things being considered" basis. So hurriedly he chose the eleven
DECISIONS AND ORDERS 215
whom he thought least desirable and then went to Hatch's house.
There he marked them off on the list of the entire force.
Jorgensen testified that when he read the list of eleven at the hotel
meeting and stated the restrictions applicable to those on the list he
intended to convey the thought that all of the eleven were to return
to active work at once along with the other men, but that their rein-
statement would be temporary for a while. They would of course
have to fill out applications to be passed on by Stone in New York.
Jorgensen said he thought of Stone in this connection because it was
Stone who had issued the orders in regard to the transferred opera-
tors. Moreover, since Stone was in charge of personnel for the en-
tire Mackay system, including the California corporation operating
on the Pacific Coast. and the Delaware corporation operating else-
where in the United States, he might be able to transfer some of the
San Francisco operators who otherwise would have been dropped
from the respondent's employ. But approval by Stone of an appli-
cation for reemployment was not intended to be a condition prece-
dent to such temporary return to work. Rather consideration of the
application was to operate as a condition subsequent after all the
eleven had returned on such a basis. Such were Jorgensen's inten-
tions and such was the thought he intended to convey. However, he
merely told the men at the meeting that they could return to work
with the exception of eleven Who would have to fill out applications
for reemployment to be approved by Stone.
As described above, the operators returned to work Tuesday,
starting at about six in the morning. Some of those on the list of
eleven returned with the group at the hotel. At about 10: 30 A. M.
Jorgensen went home for some sleep and Captain Dodd relieved him.
Dodd had learned about the list of eleven only that morning. The
plane from the East had arrived that morning and had been met
by Rodman and Dewey, the respondent's metropolitan manager for
San Francisco. By 4 o'clock that afternoon 64 of the San Francisco
operators had reported for work. Dodd knew then that only one
of the Los Angeles men preferred to remain. He spoke to the two
'Chicago men and they expressed a desire to stay. Stone had in-
formed him that two and possibly three of the New York men would
stay-which would make in all 69 operators at least. Prior to the
strike only 68 had been employed. Dodd decided to "close the
books" and so reported to Rodman. He told him of the list and of
which men had not as yet applied-Palmer, Rone, Bash, Loudermilk.
Rodman at once called Stone in New York and described the situa-
tion, informing him that the full complement of operators had been
reached and of the four, by name,, who had not as yet applied. He
discussed those on the list of eleven who had returned and recoi 1-
97571-36-vol i-15
216 NATIONAL LABOR RELATIONS BOARD
mended that their reinstatement be confirmed on a permanent basis
as there were no serious objections to them and they were "generally
speaking, good operators". Stone approved this recommendation
and the method that had been adopted in the reinstatement of the
men. He told Rodman to forward to him the applications of those
who had not returned. Stone later told Rodman to have applica-
tions filled out by everybody in view of the temporary severance of
employment caused by the strike and this was done. When Jorgensen
returned that evening Dodd informed him that all the vacancies had
been filled. Only after the books had thus been closed, between 4
and 5 o'clock on Tuesday afternoon, did the remaining four opera-
tors apply for reinstatement. In the end five of the eighteen trans-
ferred operators remained in San Francisco, one of them being given
a position outside of the HB operating room.
3. Consideration of the reasons for the discharges-conclusion
I
The respondent contends that the four operators not reinstated
were denied reinstatement solely because there were no vacancies
when they applied to the respondent." While it is true that no
vacancies then existed, the lack was due to the fact that the respond-
ent had decided to employ at San Francisco four operators not pre-
viously employed at that office. These men, transferred from employ-
ment at other points, were really strikebreakers. The respondent is
therefore contending that such strikebreakers are entitled to the four
positions in question in preference to the men who had held them
at the time the strike had commenced and who because of union
activity had temporarily severed their active work on those jobs
but not their status as employees of the respondent. See Section 2,
subdivision (3) of the National Labor Relations Act. It might be
argued by these four operators that the granting of such a preference
to the strikebreakers was a discrimination in regard to tenure of
employment of the type forbidden by Section 8, subdivision (3) of
the Act and that therefore their claim under the Act to the four
jobs is greater than that of the strikebreakers. However, since we
find that a decision on the point is not necessary to the final judg-
ment in this case, we will not decide the matter. Instead, we as-
B Although the respondent fixed the time of application for Loudermilk and Palmer
at 9 P. M , October 8, it should be noted that these two operators had attempted to see
Rodman beween 2 and 3 P. M. that afternoon and hence prior to the "closing of the
books". While the disregard of that factor by the respondent is to some extent indicative
of its attitude toward these men (compare the discussion infra concerning Phelps), we
have accepted the time of application stated by the respondent for the purpose of the
discussion in the text.
DECISIONS AND ORDERS 217
sume merely for the sake of argument that the respondent was en-
titled to retain these strikebreakers and that such retention was not
a discrimination within the meaning of Section 8, subdivision (3).
But as a consequence of such retention it became necessary to refuse
reinstatement to four of the San Francisco operators employed at
the time of the strike. In choosing the four to be in effect dis-
charged, the respondent could not violate the provisions of Section 8,
subdivision (3) and consequently a choice based upon discrimination,
for union membership or activity within the meaning of that sub-
division would be unlawful. Thus the controlling question in this.
case is whether the respondent obeyed the mandate of that sub-
division in the method it adopted and in the selection it made. In
this connection it must be noted that the mere fact that the four
operators are union members is not significant since in view of the
almost 100% membership of the HB force, any four even if picked
at random would be union members. But here the respondent has
chosen the four leaders of the Local and it is that choice which is
alleged to be a violation of the law.
The respondent asserts that the fact that the four not reinstated
happen to be the leaders of the Local is entirely an accident and due
to the fact that they were the last to apply, and only did so after
the deadline in numbers had been reached. If they had been among
the first to apply they would be employed today. Time and not the
respondent picked the leaders of the Local.
The difficulty with this contention is that it was the respondent
who chose the standard of time. And, significantly, it not only
chose that standard on Tuesday afternoon at a time when the four
leaders had not as yet reapplied but it deliberately shifted to that
standard at that point. Whatever may have been the reasons for
selecting the eleven who made up the list which Jorgensen read to
the gathering at the hotel, and we will discuss that point later, it is
clear that Jorgensen at that stage had not even considered the ques-
tion of the time of application as being at all significant. If only
some of the eleven eventually had to be dropped he then intended
to select them only after a careful weighing of each employee on the
list. But he testified that it was not to be a case of "first come, first
served". Moreover, the very existence of the list was foreign to suchi
a standard. Jorgensen and not time was to do the selecting. But
on Tuesday afternoon coincident with the realization that the full,
quota had been reached and still the union leaders were as yet not
reinstated, there was a shift to the time standard and the "first come,
first served" rule was adopted for the first time. The four to be,
dropped were now the last four, whose identity was then known, to!
apply-not the four whom Jorgensen would decide were the least
218 NATIONAL LABOR RELATIONS BOARD
efficient of the entire eleven. The list was in effect discarded. The
inference seems clear that the respondent's officials readily perceived
that circumstances had provided them with an excellent opportunity
to rid the respondent of the leaders of the Local which had just
caused it to pass through a costly strike and it did not fail to make
the most. of the opportunity. And in thus taking advantage of that
opportunity the respondent committed a violation of the Act .9
II
Our decision, however, need not rest on the above ground alone.
For the moment let us assume that in applying the "first come, first
served" rule until the HB quota was reached the respondent was not
acting contrary to the Act insofar as the mere application of such a
standard is concerned. Under such an assumption the failure to
reinstate the last four to apply would not be a violation of the Act
even if the four happened to be the leaders of the Local, unless some
activity of the respondent was responsible for their being the last
to apply and such activity was motivated by a desire to discriminate
against them because of their union leadership. Translated to the
facts in this case, if the respondent placed these four men on the list
of eleven because of their union leadership and activity and if the
presence of their names on that list led them in the final analysis to
be the last to apply for reinstatement, the respondent in then apply-
ing the "first come, first served" rule would be acting contrary to the
Act.10
We first address ourselves to the specific reasons advanced by
Jorgensen to explain his choice of the eleven nien on the list. In
his testimony the following reasons were stated :
YORK (Supervisor)-in view of certain remarks directed
against respondent's officials during the strike, his loyalty to the
respondent was doubtful and therefore he was not suited to a
supervisor's job; moreover, Jorgensen felt-a supervisor should
not strike.
PALMER (Class A Operator) -talked over the telephone and
to other operators while working, read while working, all in
violation of the respondent's rules.
9 We here accept in full for the sake of argument the respondent ' s contentions and testi-
mony that on Tuesday afternoon it did decide to follow a time standard and on the
basis of that testimony arrive at the above conclusion However, we are by no means
convinced on the record before us that the respondent fully thought out all of these
contentions on or before that-Tuesday . There are statements scattered throughout which
indicate that the "plan " may have been evolved in its entirety only after the deliberate
decision to refuse to reinstate these men for union activity and the consequent actual
refusal
10 We have not considered the question of whether the mere placing of these men on
the list of eleven because of their union leadership and activity would in itself be a
violation of the Act , since such consideration is not necessary to a decision in this case.
DECISIONS AND ORDERS 219
RONE (Class A Operator) -left circuit without permission and
spoke to other men, although not reprimanded personally for
such conduct.
LOUDERMILK (Class A Operator)-about the same reasons as
in Palmer's case; in addition these three operators were not
amenable to discipline.
BASH (Class A Operator)-on one occasion was insubordinate,
seemed preoccupied with other work, worked cross-word puzzles,
talked to other operators.
SALISBURY (Class A Operator)-had violated his leave of
absence to engage in "welfare work" in behalf of the respondent
by negotiating on ARTA matters.
PATTERSON (Class B Operator)-had several bad errors on his
record made in connection with ' the work of a customer the
respondent was very anxious to retain.
HUMPHR.EYS (Class B Operator)-a "very poor tape opera-
tor"; while a good manual operator, had not come up to expecta-
tions as a tape operator.
WESTCOTT (Class C Operator)-had "many times" failed to
show up for work because of being under the influence of liquor.
DWYER (Clerk on night trick)-many complaints received
from night supervisor; "always" late for work, didn't heed
admonitions.
HARDIN (Temporary student operator-Class E)-he would',
never be a good operator and had made many errors.
It should be noted that the only Class A operators chosen were the
leaders of the Local. The last five listed above were not at all active
in union matters and the reasons advanced by Jorgensen appear to
be genuine and definitely related to efficiency as an operator. Hardin
was permitted to resign on Tuesday instead of being discharged since
Jorgensen did not want to handicap him with a bad record. But the
reasons advanced in the cases of the five Class A operators are of a
different nature. At best they seem but carefully recalled petty
infractions of working rules which nearly every employee is likely
to commit. over a long period of employment and which are nearly
invariably condoned by the company.
And in the case of Salisbury the reason is obviously a sham.
Jorgensen knew that Salisbury went to New York for the sole pur-
pose of assisting in the ARTA negotiations and that the descriptive
term "welfare work" was probably used merely to embellish the
respondent's records. While York was not as active a union member,.
it was his active participation in the strike in conjunction with his,
status as a supervisor that appears to have caused his selection.
His case is thus different from that of the five Class A operators.
Leaving York aside therefore, the list seems to be capable of divi-
220 NATIONAL LABOR RELATIONS BOARD
Sion into two parts. The last five men appear to have been chosen
solely for reasons definitely related to efficiency of operation. The
first five of the operators, on the other hand, appear to have been
selected because of their leadership and activity in the Local and not
because of their inefficiency as operators, especially when it is re-
membered that at least four of them were admitted to be among
the best operators on the force. The large proportion of Class A
operators, even aside from the efficiency-,of the particular men
chosen from that Class, is certainly not consistent with an honest
endeavor to maintain a high efficiency standard at a time when it
is possible for the respondent to weed out its inefficient men. Since
only a few of the strikebreakers were Class A operators this propor-
tion becomes more significant. Finally, Jorgensen admitted that
he had never laid off four, three-even two Class A operators at one
time; he could not remember having laid off a single Class A oper-
ator since he became chief operator. The presence of these five on
the list is made understandable, however, when we consider Jor-
gensen's purpose-"I was trying to put men on that list that were
the least desirable at that time, to the company, that is, as I saw it",
and that these "were the least desirable operators from the company's
standpoint, out of the whole group".
The operators recognized the divisible nature of the list. Louder-
milk at the hotel meeting asked Jorgensen "what in the world they
had eleven men on that list for. I can recognize the company's re-
luctance to reemploy the five at the head of the list (referring to
Palmer, Rone, Bash, Salisbury and himself), but I don't under-
stand why you have these six others on there."
At this point it is necessary to remember that more than a Local
of a union is involved. The San Francisco Local of the ARTA was
the strongest in the Mackay system for it had succeeded in obtain-
ing as members practically all of the force at the San Francisco office.
Because of its strength and active leadership it was the dominant
Local in the ARTA and in effect the center of ARTA activity.
It had prepared and sponsored the agreement for the entire Mackay
system and through Salisbury was pressing for its adoption. Con-
sequently, in its attempt to deprive this Local of its leaders the re-
spondent was in reality striking effectively at the national organiza-
tion. We conclude that the four operators in question were placed
on the list because of their union leadership and activity and there-
fore turn to the effect of that list upon the actions of the men named
thereon.
Jorgensen, as stated above, testified that it was his intention to
have the eleven return to work with the others on a temporary basis.
But his actions and words were ill-chosen, to say the least, to com-
municate that intention. He knew that the eleven were not to be
DECISIONS AND ORDERS 221
notified of the meeting and did not protest. The presence of some
of those on the list was accidental. When called upon to state the
respondent's position Jorgensen merely said that eleven would have
to submit their applications for reemployment and the applications
would have to be approved by Stone. He made no reference to an
immediate return to work on a temporary basis. Even if it be
conceded that he could reasonably have thought that the above words
adequately expressed his intentions, one would expect that if the
reaction of those present indicated a complete misunderstanding of
his remarks he would have taken the trouble to correct that impres-
sion. There is not much doubt as to what the reaction was. Louder-
milk told the operators at the meeting that the vote was really
on the question of whether they were willing to return to work
although it meant leaving the eleven out of a job. Later in the
meeting Loudermilk told the men not to be influenced by the effect
on him-"If you want to vote on it, don't let me stand in your way.
If I don't go back, it doesn't make any difference to you"-and
Palmer added, "That goes for me too." Taking the view most favor-
able to the respondent, these reactions indicated a not too clear
understanding of Jorgensen's intentions. Yet he did or said nothing
to clarify the matter, although it is reasonable to assume that the
men would have been more willing to return to work if it were
clearly understood that all including the eleven could go back at
that time."
Two of the men who were on the list and who were present at the
meeting testified as witnesses for the respondent. One of these,
Patterson, testified that after the meeting while he was standing in
the hotel lobby Jorgensen told him to come down with the rest. He
therefore went to the HB office, but he said that he thought he had
been asked to go there for the purpose of filling out an application
and added, "I didn't have any idea that I would be allowed to go to
work". For it was his understanding that those on the list would
n IIere, and elsewhere , we have for the sake of the argument adopted the version of
Jorgensen 's statement most favorable to the respondent . Jorgensen 's testimony as to his
statement is about that given in the text above. Hatch and York testified similarly.
McLaughlin ' s testimony , on the other hand, although in some respects verbally similar to
Jorgensen ' s, indicates that Jorgensen was very far from expressing his professed inten-
tions McLaughlin testified : "He told them that they could return to work uncondi-
tionally ; that they would retain their former positions , capacities , and that the strike
would be forgotten . And then he had a piece of paper in his hand and he said , 'Excepting
these names ', and he read them off and said 'These men will have to submit an application
for reinstatement.'" (Italics ours .) Patterson , who like McLaughlin , was the
respondent 's witness , testified that Jorgensen said that the eleven men "would not be
allowed to return to work until their applications were approved by Mr. Stone ". Chambers,
an operator , testified similarly, stating that Jorgensen , after reading the list said, "Any
man to be reemployed will have to submit his application to Mr . Stone". Finally, both
Loudermilk and Palmer testified that McLaughlin prefaced Jorgensen ' s remarks by
stating, "Mr. Jorgensen will read to you the list of men who are banned from returning
to work ." ( Palmer said: "Men who will not be taken back to work"). Palmer's testi-
mony in regard to Jorgensen 's statement is similar to that of McLaughlin.
222 NATIONAL LABOR RELATIONS BOARD
have to fill out applications and if they were approved they could
then return to work-he did not understand that if he went back
to the office he would be immediately put back to work at least on
a temporary basis. At the office Jorgensen told him to go to work
at once and only a day or so later did he fill out his application.
The other, York, testified that after the meeting he went to the
HB office to fill out an application since as no time was set, he
"thought then was as good as any". He did not know what his
status was and he went to find out. At the office he first asked
Jorgensen for an application and the latter replied he would get
him one in a day or so but that now he should commence to work.
The evidence of Patterson and York indicates that they certainly
did not believe they could return to work at once even on a tem-
porary basis. It must be remembered that these two-and espe-
cially Patterson-were in the dark as to the respondent's motive
for placing them on the list. But when we consider that the four
union leaders had every reason, to believe that they were being black-
listed for union activities, it is but natural to expect that they cer-
tainly would not think they could return to work at once if a person
such as Patterson, with no inkling as to the respondent's motive, held
the same belief as to himself.
The four in question thought they would not be permitted to re-
turn to work and under the circumstances described above such a
belief was not unreasonable. Holding that belief, it was natural
that they would delay their request for reinstatement. Bash would
not feel that there was any reason to rise from a sick bed and apply.
Hone could wait for all of the men to return to work before he
himself applied without being forced really to. choose between his,
conscience and his job. These four were induced to postpone their
applications because of the reasonable belief that they would not be
permitted to return to work and that belief was planted in their
minds by conduct of -the respondent directed against them because
of their union activities. To apply the "first come, first served"'
principle to these four operators under these circumstances consti-
tuted a violation of Section 8, subdivisions (1) and (3).
B. The discharge of Phelps
The fifth employee whom it is alleged the respondent refused to
reinstate contrary to the Act because of union membership and
activity is Phelps. He had been with the respondent since June 1928,
and at the time of the strike was the manager of its branch office
in the Stock Exchange Building in San Francisco, earning $169.60 a
month. Working under him were an operator and one or two tele-
phone girls and clerks. One of the main duties associated with his
DECISIONS AND ORDERS 223
position was the solicitation of customers, especially those concerns
that were members of the Stock Exchange. His immediate superior
-,,,as Dewey, metropolitan manager for the respondent, who in turn
reported to Rodman.
Phelps had joined the Local in the spring of 1934, but was not
active in its affairs. Although he was present at the meeting on
October 4 at which the strike was announced, he reported for work
Saturday morning, October 5. He spent that morning in efforts to
placate the regular customers of the Stock Exchange branch, re-
questing them to bear with the respondent until the present diffi-
culties were straightened out. After he closed the office at noon,
he discussed the situation with several of the strikers and decided to
join the strike. The Stock Exchange office was normally closed on
Saturday afternoon and Sunday. Phelps was not active on the
picket line, although he did accompany Rone and another operator
when they visited the homes of two of the supervisors to obtain their
memberships in the Local.
Phelps was not informed of the meeting at the hotel, probably
because he was in a different office and hence was overlooked, and
did not attend it. On Tuesday morning, October 8, he learned that
the strike was over by calling the headquarters of the Local.
This was about 7 A. M. He immediately called Dewey at his office,
but he apparently was not there. Phelps then at once went to the
Stock Exchange office, but was denied admission by the guard, who
had previously been told not to admit anyone and whose instructions
had not as yet been changed. He next attempted to see both Dewey
and Rodman at about 8 A. M., but was informed both were out. At
about 9 A. M. he succeeded in seeing Captain Dodd. He inquired of
Dodd about his status and Dodd replied that he did not know but
would attempt to find out from Rodman that morning and hence
Phelps should come back at about 1 P. M. Phelps sat outside of
Dewey's office until that time and then spoke to Dodd again at 1 P. M.
Dodd said he had spoken to Rodman, but had forgotten in the press
of things to mention his case and suggested he return at 3 P. M.
Phelps did so and on opening the door at that time was met by Rod-
man who, in an excited mood, told him to "Get out." Phelps left
and finally contacted Dewey at the Stock Exchange office at about
3: 30 P. M. Dewey said the matter was out of his hands and that he
had better file an application. Phelps did so and saw Dewey the
next day. Dewey then informed him that the managership of the
-Stock Exchange branch had been given to Duggan (or Dugan), one
of the transferred employees from, New York. On October 14
Phelps wrote Rodman requesting a meeting in order to explain the
situation. Rodman saw him the next day and stated that his posi-
224 NATIONAL LABOR RELATIONS BOARD
tion had already been given to Duggan but that he would recommend
his reinstatement to some position.
Phelps in the meantime had visited the Regional Office of this
Board preparatory to the filing of a charge. The next day, accord-
ing to Phelp's testimony, Dewey informed him that Rodman did not
want to recommend his reinstatement in view of his visit to the Re-
gional Office. Phelps then attempted to withdraw his "complaint,"
but was informed by the Regional Director that it had been filed
by the Local and not by him. However, he was told, if he were
reinstated he would be dropped from the complaint. Phelps so in-
formed Dewey. Rodman finally sent the application to Stone with
the recommendation that Phelps should not be employed as there
were then no vacancies in the Stock Exchange branch. This recom-
mendation was approved and Phelps-was not reinstated. Since that
time Phelps had earned about six dollars ,as a hosiery salesman.
Conflicting testimony was offered at the hearing in regard to
Phelps' efficiency. Letters were introduced in the record from vari-
ous members of the Stock Exchange who were customers of the re-
spondent, including the President of the Exchange, which testified
to his ability and his qualifications for the position of manager of the
Stock Exchange branch. While the respondent's officials testified on
the other hand that they had once in June or July 1935 received a
complaint which would have justified his being discharged, they had
not taken such action, so that Phelps was still an employee at the
time of the strike. Such retention is significant and we therefore
conclude that on the whole record Phelps cannot be considered as
either an inefficient employee or one whom the respondent regarded
as too inefficient to retain his job.
The respondent at the hearing and prior thereto contended that
Phelps was not reinstated because at the time he made application his
position had already been filled. No claim of inefficiency was pre-
sented.1- The respondent's officials testified that about noon on Tues-
day, October 8, Dewey had given the position of manager of the Stock
Exchange branch to Duggan, one of the employees transferred from
New York who up to then had been only an operator. The respondent
set the time of Phelps' application for reinstatement at 3:30 P. M.,
October 8, when he first contacted Dewey.
12 Nor was it contended , in explaining the refusal to reinstate , that Phelps had been
guilty of conduct during the strike which would justify the respondent in not taking him
back . The record indicates that one of the telephone operators reported to the respondent
that she had been forcibly detained from going to work by several of the picketing strikers
including Phelps. While from the record we conclude that the report was false and that
the pickets had in no way detained her against her will , since the respondent did not
rely upon such report, we need not further consider it or determine whether reliance upon
it and refusal to reinstate on that ground would be justifiable.
DECISIONS AND ORDERS 225
We cannot accept the respondent's contention. Phelps was an em-
ployee on the payroll of the respondent at the time of the strike.
After the strike was over he was not reinstated and a new employee
was given his job. The new employee had been an operator in the
New York office before that time and the position had not been
promised him when he transferred from New York. Moreover, he
was given the position at noon on Tuesday. Yet Phelps had con-
tacted a responsible official of the respondent and applied for rein-
statement at 10 A. M. that same day after having unsuccessfully
attempted to reach some official since 7 A. M.13 In fixing the time of
application of the operators in the HB room the respondent consid-
ered telephone calls to Jorgensen and even calls to a supervisor as
proper applications. To state that an application made to Dodd,
Secretary of the respondent and active in the supervision and con-
duct of its affairs in San Francisco, was not sufficient and to insist
instead that Phelps had to find Dewey, his immediate superior, and
make application to him is to insist so strenuously upon technicalities
as to arouse the inference that the respondent is concealing its real
motive. It must be remembered that Dewey and Rodman had not
remained at their desks that morning to receive applications, but
instead had gone to the airport to meet the plane from the East.
Under these circumstances, the placing upon Phelps of the risk of
failure to contact Dewey and the prompt installatibn of Duggan in a
position entirely different from the one which he had formerly held
demand a clearer explanation than that offered by the respondent.
That explanation, we feel, is linked with the statement of Rodman at
the hearing that "we did not approve of a commercial man, in charge
of an office, becoming a member of an organization such as ARTA",
a belief that did not require further confirmation by the strike and
Phelps' participation in it, for with Rodman the belief amounted to
a "foregone conclusion." We, therefore, conclude that on the record
before us the refusal to reinstate Phelps was a violation of Section 8,
subdivision (3), and by the same token, subdivision (1).
C. The alleged violation of section 8, subdivision (2)
The complaint alleges that the respondent initiated and formed
a labor organization or plan and contributed financial and other
support thereto contrary to Section 8, subdivisions (2) and (1), of
the Act. The proof advanced to support these allegations principally
concerns the meeting at the hotel, a second meeting of the operators
held October 9, and the subsequent signing of a petition renouncing
13 Dewey in effect so pointed out in a memorandum to Rodman dated October 1&
226 NATIONAL LABOR RELATIONS BOARD
the ARTA. We have already described the hotel meeting and there-
fore consider now the second meeting on October 9.
On the morning of October 8 some of the operators in the New
York or MK office had sent a telegram to the operating staff of the
HB office, which telegram contained the following resolution adopted
at that time by 47 members of the operating staff in New York
(Respondent's Exhibit 10) :
"Whereas, the MK traffic center ARTA members were denied
by the ARTA the right to select their own delegates to the ARTA
National Negotiation Committee in conference with the Mackay
Radio management, and whereas, the MK traffic center ARTA
members were denied by the ARTA the pledged right to a
written ballot on the strike question, and whereas, a strike was
called without warning and without written ballot at a most
inopportune time (3 A. M. Saturday October 5th) be it resolved
that:
"The former ARTA members (both full-paid and deposit)
of the MK traffic center, both as individuals and as a group,
herewith renounced any and all affiliation with the ARTA, and
in so doing pass -censure on the ARTA officials for ill-advised
and unwarranted strike action, and automatically disavow any
ARTA member, official, delegate or committee seeking to act as
spokesman in behalf of any MK traffic center employee, or group
of employees.
"And, be it further resolved that a committee composed of
H. B. Funke, J. S. French and C. F. McDonough is hereby
named as a Relations Committee to act as spokesman for the
MK traffic center employees in any conference with the Mackay
Radio Management ..."
This telegram was posted on the bulletin board of the respondent.
The three individuals named in the telegram had apparently func-
tioned as a Relations Committee 14 in New York prior to the strike
and had opposed the organization and continuation of the ARTA
Local in New York. McDonough was one of the operators who was
transferred from New York to San Francisco during the strike.
On October 9 in the afternoon McDonough spoke to Hatch in re-
gard to the situation in New York during the strike and Hatch said
that if McDonough wanted to tell the operators about the same
matter, he would assist him by preparing notices of the meeting and
securing a room. Hatch then questioned some of the men about
such a meeting and decided it was advisable to hold it. He accord-
ingly prepared notices to the effect that an informal meeting would
"Not to be confused with the "Relations Committee" of the ARTA Local
DECISIONS AND ORDERS 227
be held in one of the respondent's rooms at 4 P. M. that day at which
the men from New York would relate what happened there during
the strike. The notices further stated that the question of the ap-
pointment of a "Relations Committee" may be discussed at the meet-
ing. Hatch had secured permission to use the room and to hold the
meeting. Jorgensen permitted those operators who were on duty at.
4 P. M. and who desired to attend the meeting to leave their posts.
without loss of pay. McDonough had informed Rodman of the meet-
ing earlier that afternoon.
About thirty to forty operators attended. McLaughlin again pre-
sided at the meeting and said that McDonough would relate to them
the situation in New York. McDonough spoke about the failure of
the strike in that office and the successful functioning of the Rela-
tions Committee. Some of the operators asked McLaughlin how long
the "scabs" from the East would remain and Patterson also desired
to know why he had been placed in the list of eleven. McLaughlin
said he would call Jorgensen to answer the questions. Jorgensen came
to the meeting, evaded a direct answer to Patterson's question and
stated that all but a few of the men from New York would return.
McLaughlin announced his resignation from the ARTA and dis-
cussed the advisability of forming a Relations Committee. He finally
stated that such a matter should be postponed for the time being.
Shortly after the meeting McLaughlin spoke to McDonough about
the advisability of circulating a petition similar to that signed in New
York. With McDonough's ready encouragement and aid a petition
was prepared which McLaughlin signed. He then secured the signa-
tures of the supervisors and had the petition circulated in the HI3
office. It was circulated to all of the operators over a period cover-
ing a number of days and finally signed by more than a majority of
the operators. It was then presented to Jorgensen who in turn had
it transmitted to Rodman. Rodman acknowledged its receipt in a
bulletin to the operators and informed them that a copy had been
sent to Stone. The petition read as follows (Board Exhibit 13) :
"We the employees of the San Francisco office of the Mackay
Radio Telegraph Company of California, as individuals and as
a group, herewith renounce any and all affiliation with the ARTA
insofar as they are empowered to act for us and negotiate any
contracts in our behalf, as employees of the Mackay Radio Tele-
graph Company of California, disavow any member, official,,
delegate or committee seeking to act as spokesman for any em-
ployee or group of employees in the point to point service of
this company.
"We do maintain the right to elect a member of this office or
a group of employees of this office to represent us with any
grievances which we may have with the management, and ask
228 NATIONAL LABOR RELATIONS BOARD
the right to present our grievances to the management as we feel
they should be presented, not as members of the ARTA, but
as a representative group of employees of the Mackay Radio
Telegraph Company."
A Relations Committee was never formed in the San Francisco
-office.
The respondent contends that the activities described above and the
meeting at the hotel, even if considered reprehensible under the Act
if participated in by the respondent, are here not traceable to it.
These activities, it contends, were engaged in by a group of respond-
ent's employees who desired to end the strike to save their jobs and
who, being hostile to the ARTA, desired to supplant it by another
form of organization. But their attempts in that direction were not
actively encouraged or aided by the respondent.
We approach a consideration of this contention with the belief that
the full explanation of the conduct of certain of respondent's em-
ployees is not contained in this record. At each step the respondent
has offered an explanation that is to some extent plausible and which
in turn plausibly links that step with the next development. But
throughout there is a persistent undercurrent of another explana-
tion that weaves the-evelits together into a convincing whole that
is far more consistent with the air of concealment and half-truth
pervading the testimony concerning those employees.
Two of the employees in question are Hatch and McDonough and
it is principally their activities to which we have reference. Hatch
was the chief electrician and in that capacity supervised two em-
ployees. His part in the sudden collapse of the strike has already
been related. His explanation of his actions and motives at that
period is not convincing and much of his testimony is not credible.
During the strike we find Hatch engaged in curious conduct. He sug-
gested to Rone that they destroy the transmitters and offered to show
him how such sabotage could be carried out. Hatch admitted that
he had made the suggestion possibly once or twice as a "joke"-per-
haps, however, with a "straight face". Again, he apparently sug-
gested to Phelps that they go down to the airport to intercept the
men from the East. After the strike we find Hatch assisting Mc-
Donough in getting the men together,and this contact is also curious
in view of McDonough's activities. McDonough had been a member
,of the Relations Committee in New York. He was the "straw boss"
of the operators transferred to San Francisco. On his arrival in
San Francisco he immediately succeeded in calling the men together
and explaining that Committee to them. He was able with Mc-
Laughlin's ready cooperation to have circulated a petition denounc-
ing the ARTA. McDonough, although an operator in New. York,
DECISIONS AND ORDERS 229
was practically from the start assigned to "commercial" work involv-
ing the solicitation of customers in the business area. Although
Dewey was in charge of the commercial department, McDonough
reported not to him but directly to Rodman. This work was not as
confining as regards both place and time and McDonough was able
to converse rather freely with the HB operators and also to visit the
respondent's station at Lobitos. After McDonough's visit to that
place, the person in charge of the station suggested to the operators
subject to his supervision that it might be a good idea to sign a peti-
tion announcing their withdrawal from the ARTA. Rodman testi-
fied that McDonough visited the Lobitos station for "educational pur-
poses" and as part of the general plan of acquainting the Mackay
employees with all parts of the system. McDonough returned to
New York about the first of November.
Phelps' testimony regarding some of his conversations with Rod-
man is very suggestive. Rodman stated at one point : "We were all
set for the strike. We had men in the bushes out here with rifles.
We expected them to try to interrupt the C. P. cable. It sure would
have been hot stuff for anybody monkeying with the cable or for
anybody who tried to monkey with the transmitters or cable lines.
They would have been surprised from the hillsides." One is re-
minded immediately of the coincidence of Hatch's suggestion to
Rone. A little later in the conversation, Rodman said: "Didn't you
know that a bunch of thugs were sent down to the airport to inter-
cept a planeload of men coming in there? Well, we were ready for
them. We diverted the plane ten minutes before it was supposed to
land." Again Hatch's mind seems to have run in the same channel.
Rodman also addressed himself to another subject: "We have had
private investigators working for months and we have the whole
thing right here. We know the whole story and we are not going
to be dominated by a gang like that." This part of the conversation
is strikingly similar to Rodman's conversation with Palmer and
Loudermilk, as testified to by the two operators, in which Rodman
accused the union organization of being dominated by Reds and
Communists and said : "Why we have men who reported your meet-
ings to us repeatedly for the past several months. We have had an
agency, a detective agency, turning in reports on your leaders and
their activities. Why I have a letter here in my possession-here is
a letter which is proof that you men are communists." Rodman read
part of the "letter"-it was really a report to them and the docu-
ment was later introduced in evidence. It contained a series of state-
ments describing some of the ARTA leaders as communists.
Rodman denied that he had employed "armed guards in the
bushes". But he admitted-that during the strike the respondent had
230 NATIONAL LABOR RELATIONS BOARD
employed guards at all points on the Pacific Coast where it operated,
all of these guards being Pinkerton men. According to Rodman;
about 18 Pinkerton men were employed by the respondent. As to
the "report" mentioned above, Rodman said that it was attached to a
memorandum from the respondent's office at Portland and then there
followed this interesting bit of testimony :
Q. And who prepared this report?
A. An outsider.
Q. Meaning who?
A. I don't know.
Q. Well, as a matter of fact, it was a detective agency, wasn't
it?
A. No, it was not.
Q. Then how do you know it was prepared by an outsider?
A. I do know that.
Q. Who was the outsider?
A. I know the outsider's name, but it would be a breach of con-
fidence for me to mention it, I think.
Q. Can you tell us what the outsider's business was?
A. I don't know that he has any business.
Finally Phelps testified that Rodman during the conversation said:
"If it wasn't for such fellows as Hatch, McLaughlin, Burtz 15
and a few others, you fellows might have had a chance, but you
can not win when you have got fellows like that. They are all
supposed to be union men, but how do you know we haven't
used a little strategy in this thing and had a few union men of
our own ,in there to keep track of what was going on?"
In answer to 'a series of formal questions prepared by the respondent's
attorney, Rodman denied that he, or any official of the company to
his knowledge, had employed "any spy or person such as is generally
known as a stool pigeon".
This Board is not unaware of the widespread use by employers of
detective agencies and strike-breaking agencies . Nor is it unfamiliar
with the activities and methods of these agencies and of employers
in spying upon employees and unions and in inciting strikers to
sabotage and violence in the hope that a strike may then be broken
by the pressure of adverse public opinion thus aroused or the inter-
15 At a meeting of the Local held on November 8, Burtz defended himself against charges
that he , among others had secretly engineered the meeting at the hotel After some heated
discussion the Local unanimously resolved that his action was wrongful , but unintentional
in that he did not realize the consequences and had merely been the "tool of the Com-
pany " He was accordingly absolved of the charges and permitted to remain as a member
in good standing.
DECISIONS AND ORDERS 231'
vention of police and troops.1° It is obvious that only in rare in-
stances will testimony regarding such activities be clear and open.
Normally the story must be pieced together from fragments of evi-
dence and the inferences to be drawn from them. For these reasons
the Board feels that this record may not contain a complete account
of the activities of such persons as Hatch and McDonough and the
motives prompting such activities.
However, the charge before us is a narrow one. The respondent
is alleged to have initiated and formed a labor organization and to
have contributed support thereto contrary to Section 8, subdivision
(2), and by the same token, subdivision (1). It is no answer to
this allegation to state, as the respondent apparently contends in its
brief, that no labor organization was ever in fact formed, for an
abortive attempt by an employer to form a labor organization is an
unfair labor practice within the meaning of that Section. However,
we feel that the record does not contain as complete an account as
might be obtained with respect to that particular allegation in the
complaint. But in view of our decision on the other allegations in
the complaint we do not deem it advisable to delay the case in
order to hold a further hearing for the purpose of taking more
testimony on this point. We will, therefore, dismiss the complaint
without prejudice insofar as it concerns this particular charge.
IV. EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE
Interference with the activities of employees in joining and as-
sisting labor organizations leads and tends to lead to labor disputes
that burden and obstruct commerce and the free flow thereof. The
effect that a labor dispute can have on the operations of a highly
developed and complex communications system is graphically shown
by the actual facts in this case. The total number of paid mes-
sages, handled by the San Francisco HB office on October 1, 1935
was 5499. On October 4, the day before the strike, the total was 5848.
Then came the strike. On the first day of the strike, October 5,
the total had fallen to 864. By the second day the operations were
practically at a standstill-only 227 paid messages were handled
on October 6. On October 7 the effect of the respondent's attempts
to resume operations by using transferred operators and leased wires
became noticeable as the number rose to 1152. The strike was over
early on the morning of October 8-and the resumption of nearly,
normal operations is reflected in the messages handled-a total of
4489. By October 11 the total had reached 5498, apparently a normal
16 See In the Matter of Fruehauf Trailer Company , decided December 14, 1935.
97571-36-vol i-16
232 NATIONAL LABOR RELATIONS BOARD
figure. Captain Dodd testified that during the strike the volume of
traffic had "decreased enormously". Moreover he thought that there
was a possibility that for some time after the strike the traffic might
be less than was handled prior thereto-"It seemed to me that, with
certain circuits having been stopped, would be news to customers that
there had been a strike and difficulties, there was very easily a pos-
sibility that some people who had used Mackay Radio before the
strike would not use them after the strike, or would not use the
Mackay Radio service to as large an extent."
The tendency of an employer's interference with the activities of
his employees in joining or assisting labor organizations to lead to
a labor dispute burdening or obstructing commerce is also illustrated
by the developments in this case. After the strike and the refusal
of the respondent to reinstate the four employees involved in this
case, the ARTA conducted a boycott against the Mackay system
and urged that messages be sent via the other competing companies.
Such conduct tends to a dislocation of the customary channels of
interstate and foreign communication and thus burdens and obstructs
commerce and the free flow thereof.
RULINGS MADE DURING THE HEARING
The respondent filed with the Board a statement of exceptions
to certain rulings made by the Trial Examiner at the hearing be-
fore him in San Francisco and requested the Board to review those
rulings. We will briefly consider the more important of those
exceptions.
The respondent's fourth exception is the refusal of the Trial
Examiner to exclude testimony relating to the organization and
development of the Local. As we pointed out in In the Matter of
Pennsylvania Greyhound Lines, Inc., decided December 7, 1935, at
page 7, such evidence is generally vital to a proper understanding of
the issues in a case under the National Labor Relations Act. The
'exception is thus without merit. Respondent's fifteenth, twentieth,
and thirty-second exceptions deal with rulings preventing it from
-questioning some of the discharged operators regarding their feel-
ings toward "scabs", while the sixteenth, eighteenth, nineteenth and
thirty-first exceptions deal with limitations placed on somewhat
similar questions concerning a boycott instituted by the ARTA
against the respondent and the attitude of some of the four operators
toward that boycott. In the light of the record the rulings cannot
be considered prejudicial to the respondent since the testimony in
the record on those two points is sufficient' clearly to indicate to the
Board the respondent's contention in that regard and the evidence
supporting that contention. The respondent attempted to introduce
I
DECISIONS AND ORDERS 233
such testimony to support the contention that these operators should
not be reinstated even if it Were found they were discharged con-
trary to the National Labor Relations Act. We feel that the con-
tention is without merit for we find that there is nothing to indicate
that these operators upon reinstatement would fail to perform their
duties in a loyal and efficient manner and most of the operators so
testified. Respondent's fourteenth and seventeenth exceptions deal
with the Trial Examiner's limitations upon questions designed to
explore the attitude of these operators toward the doctrines of Coin-
munism and the affiliation of the ARTA and its leaders with adher-
ents of those doctrines. Here also we feel that the respondent has
has not been prejudiced by these rulings for the record is sufficient
to indicate its contention on this point. Whatever may be the views
of these operators on such a subject we do not believe that they can
affect their reinstatement in the light of Jorgensen's emphatic testi-
mony that the ability of an operator is the determinative question in
the hiring or discharging of employees-personal feeling, religious
beliefs, home life and political beliefs are never considered. Re-
spondent's twenty-seventh exception is without merit as the docu-
ments admitted are relevant to the issues involved, as indicated in
the decision. Respondent's second, third, fifth to tenth, inclusive,
twelfth, thirteenth, twenty-first and twenty-ninth exceptions involve
rulings concerning testimony which the Board has not considered in
arriving at its decision and which are therefore not prejudicial to
the respondent. The twenty-eight and thirty-fourth exceptions are
taken to claimed rulings that the testimony of McLaughlin, Hatch,
and other witnesses is binding upon the respondent. The Board has
not so considered such testimony and hence the exceptions are not
warranted. The remaining exceptions, which are either Without
merit or taken to rulings that have not prejudiced the respondent in
view of our decision in the case, do not require separate discussion.
CONCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAw
In addition to the above findings of fact, the following concluding
findings of fact are made :
1. The American Radio Telegraphists' Association, San Fran-
cisco Local No. 3, is a labor organization within the meaning of
Section 2, subdivision (5) of the National Labor Relations Act.
2. By refusing to reinstate to employment A. B. Loudermilk, L. K.
Bash and P. D. Phelps on October 8, 1935 and L. N. Rone and G. E.
Palmer on October 9, 1935, thereby discharging said employees on
the respective days, and by each of said discharges, the respondent
did discriminate in regard to tenure of employment and has thereby
234 NATIONAL LABOR RELATIONS BOARD
discouraged membership in the labor organization known as Ameri-
can Radio Telegraphists' Association, San Francisco Local No. 3.
3. By the acts described in paragraph 2 above, and each of them,
the respondent has interfered with, restrained and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
National Labor Relations Act.
4. The aforesaid acts of respondent occurred in the course and
conduct of commerce among the several states and with territories
and foreign countries and directly and immediately affected
employees engaged in operations in the course and conduct of such
commerce and who, because of their services in connection with
instrumentalities of such commerce, are an integral part of the
instrumentalities of such commerce.
5. The aforesaid acts of respondent have led and tend to lead to
labor disputes burdening or obstructing commerce among the several
states and with territories and foreign countries and the free flow of
such commerce.
Upon the basis of the foregoing the Board finds and concludes as
a matter of law :
(a) Respondent, by discriminating in regard to the tenure of em-
ployment of A. B. Loudermilk, L. B. Bash, P. D. Phelps, L. N. Rone
and G. E. Palmer, and each of them, has engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of
Section 8, subdivision (1) and Section 2, subdivisions (6) and (7),
of the National Labor Relations Act.
(b) Respondent, by discouraging membership in the labor organi-
zation known as American Radio Telegraphists' Association, Local
No. 3, by discriminating in regard to the tenure of employment of
A. B. Loudermilk, L. K. Bash, P. D. Phelps, L. N. Rone and G. E.
Palmer, and each of them, has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of Section 8,
subdivision (3) and Section 2, subdivisions (6) and (7) of the
National Labor Relations Act.
ORDER
On the basis of the findings of fact and conclusions of law and
pursuant to Section 10, subdivision (c) of the National Labor
Relations Act, the National Labor Relations Board hereby orders
that the respondent, Mackay Radio and Telegraph Company, and its
officers and agents, shall:
1. Cease and desist (a) from discharging or threatening to dis-
charge any of its employees for the reason that such employees have
joined or assisted American Radio Telegraphists' Association, San
Francisco Local No. 3, or otherwise engaged in union activity, and
(b) from in any manner interfering with, restraining or coercing its
DECISIONS AND ORDERS 235
employees in the exercise of their 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 bargaining or other mutual
aid or, protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer to A. B. Loudermilk, L. K. Bash,. P. D. Phelps, L. N.
Rone and G. E. Palmer immediate and full reinstatement, respec-
tively, to their former positions, without prejudice to any rights and
privileges previously enjoyed;
(b) Make whole said A. B. Loudermilk, L. K. Bash, P. D. Phelps,
L. N. Rone and G. E. Palmer for any loss of pay they have suffered
by reason of their discharge by payment, respectively, of a sum of
money equal to that which each would normally have earned as
wages during the period from the date of his discharge to the date
of such offer of reinstatement, computed at the wage rate stated in
the findings of fact as the rate each was paid at the time of his
discharge, less the amount earned subsequent to discharge as shown
in the findings of fact;
(c) Post immediately notices to its employees in conspicuous
places in its various offices, including those located in San Francisco
and elsewhere, stating (1) that the respondent will not discharge
or in any manner discriminate against members of, or those desiring
to become members of, the American Radio Telegraphists' Associa-
tion, or persons assisting said organization or otherwise engaging in
union activity, and (2) that such notices will remain posted for a
period of at least thirty (30) consecutive days from the date of
posting; And it is further ordered,
3. That the complaint be, and it hereby is, dismissed without
prejudice with respect to the allegations of Paragraphs 8, 9, and 10
thereof and so much of the allegation of Paragraph 12 as depends
upon the aforesaid allegations.