Russell Electric Co.

National Labor Relations Board - Board Decisions

Jul 31, 1947

74 N.L.R.B. 769 (N.L.R.B. 1947)

In the Matter of RUSSELL ELECTRIC COMPANY and UNITED ELECTRICAL,
RADIO & MACHINE WORKERS OF AMERICA, C. I. O.
Case No. 13-C-04.59.-Decided July 31, 1947
Mr. Gustaf B. Erickson , for the Board.
Schwartz d Cooper, by Mr. Ira S. Kolb, of Chicago , Ill., for the
respondent.
Mr. Fred Dzutner, of Chicago, Ill., for the Union.
Mr. George J. Hadjino ff , of counsel to the Board.
DECISION
AND
ORDER
On October 17, 1946, Trial Examiner John J. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that the
respondent had engaged in and was engaging in certain ullf air labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, except insofar as they are inconsistent with our findings,
conclusions, and Order hereinafter set forth.
1. We agree with the Trial Examiner's conclusion that the respond-
ent engaged in unfair labor practices within the meaning of Section
8 (1) of the Act, by the following conduct.' In April 1945, Division
Head Brown asked Toolmaker Lawler, who for several months prior
to the conversation had been wearing a union button, why he was
wearing a union button, and observed that the respondent "[doesn't]
need toolmakers" since it "can send all [its] work out." During the
' We do not rely upon the circulars issued by the respondent.
74 N. L. R. B., No. 130.
769
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same month, Assistant Division Head Boulay told employee Barelli
-that, if Barelli were working for him and wore a union button, he
would lay him off, and Foreman Roddy warned several employees
not to wear their union buttons during their interviews with Division
Head Brown. These remarks plainly constituted threats of economic
reprisal for engaging in union activities and were clearly violative
of Section 8 (1). We find that by the foregoing statements of super-
visory employees the respondent interfered with, restrained and co-
erced its employees in the exercise of the rights guaranteed in Section
7 of the Act.
2. We do not agree with the Trial Examiner's conclusion that a
warning which was given by Director of,Labor Relations Swoboda to
employee Raia to refrain from union solicitation on company time,
was not sincere but was given to intimidate Raia and to discourage his
activities in behalf of the Union. The record discloses that, shortly
before Raia received his warning, he was engaged in the distribution of
union cards at the plant; that Swoboda made no direct accusation that
Raia had been soliciting union membership during working hours, and
qualified his warning by the words "if you are doing it during working
hours ..."; and that Swoboda, according to the testimony of Rua,
himself, was "very nice about it," and told Raia that it was all
right for him to engage in soliciting membership on company property
so long as lie did not do it during working hours. Under these cir-
cumstances, we do not conclude that the warning to Raia was, either in
purpose or in effect, intimidatory or calculated to discourage proper
activities on behalf of the Union. The contrary finding of the Trial
Examiner is hereby reversed. .
3. We also do not agree with the Trial Examiner's conclusion that the
respondent refused Shellenberger's request for leave of absence on
November 2, 1944, for discriminatory reasons. This request was for a
leave of indefinite duration, and the respondent contends that it was
denied because of that fact. The Trial Examiner found no merit in
the respondent's explanation of the denial, in view of his finding that
the respondent had granted a request for an indefinite leave of absence
in May 1944. In our opinion, however, the May request was not for an
indefinite leave. Although the May request did not specify the exact
number of days of absence, it was for the duration of a specific event;
as long as it would require for Shellenberger to take his wife back to
Iowa to be examined by a doctor there. This obviously would only
require a, foreseeably limited time. The nature of the two requests for
leave being entirely different, the respondent could have consistently
and in good faith granted the first request for a leave of absence in--
RUSSELL ELECTRIC COMPANY 771
Z-olvmng a limited time, and denied the second which carried no fore-
seeable limit whatever. The grant of a request for indefinite leave
obviously carries with it an implied obligation on the part of the em-
ployer to furnish the employee with employment at some indefinite
future time, an obligation which an employer may well not wish to
assume because of uncertainty as to the business conditions which
might then prevail.
We do concur, however, in the Trial Examiner's finding that the
respondent discriminated in regard to Shellenberger's hire, within the
meaning of Section 8 (3) of the Act, by discriminatorily refusing him
reemployment in the latter part of December 1944, when the respond-
ent had a job available for him in the armature-winding department.
Since we have found that Shellenberger was discriminatorily denied
reemployment, we shall order the respondent to offer him immediate
reinstatement to his former or a substantially equivalent position, or to
any other available position for which he is qualified, without prejudice
to his seniority and other rights and privileges. Since it appears that
the respondent has closed its armature-winding department and has
generally reduced its operations since VJ-day, we shall further order
that, in the event that there is now no position available for him, for
which he is qualified, his name shall be placed on a preferential list
and that he shall thereafter be offered employment in any position for
which he is qualified, as such employment becomes available and before
other persons are hired for such work; and that, if the armature-
winding department is reestablished, Shellenberger shall be offered
immediate employment in that department. We shall also order the
respondent io make Shellenberger whole for any loss of pay that he
may have suffered by reason of the respondent's refusal to reemploy
him: (a) by payment to him of a sum of money equal to the amount
which he normally would have earned as wages during the period
from the date of such refusal to reemploy to the date of the closing of
the armature-winding department in August 1945; and (b) if at the
time of the closing of the armature-winding department in August
1945 the respondent had available a substantially equivalent position,
for which Shellenberger was qualified and to which he would have been
transferred upon the closing of the armature-winding department had
he not been discriminatorily denied reemployment in December 1944,
by payment to him of a sum of money equal to the amount which lie
normally would have earned as wages during the period from the date
of the closing of the armature-winding department in August 1945 to
the date of the offer of reinstatement Or placement upon a preferential
list, as provided above, less his net earnings during the said periods.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations.
Board, hereby orders that the respondent, Russell Electric Company,.
Chicago, Illinois, and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in United Electrical Radio & Ma-
chine Workers of America, C. I. 0., or in any other labor organization
of its employees, by laying off, discharging or refusing to reinstate or
reemploy any of its employees, or by discriminating in any other man-
ner in regard to their hire or tenure of employment or any term or con-
dition of their employment;
(b) In any other manner interfering with, restraining, or coercing-
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other labor
organization, to bargain collectively through representatives of their-
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which the Board finds wilh
effectuate the policies of the Act : 2
(b) Make whole Raymond Shellenberger for any loss of pay he may-
have suffered by reason of the respondent's discrimination against him
by payment to him of a sum of money equal to the amount which he
normally would have earned as wages during the period from the date
of the respondent's refusal to reemploy him in the latter part of'
December 1944 to the date of the closing of the armature-winding
department in August 1945; and, if at the time of the closing of the
armature-winding department in August 1945, the respondent had a
substantially equivalent position available for which he would have
been qualified and to which he would have been transferred upon the
closing of the armature-winding department had he not been discrim-
inatorily denied reemployment in December 1944, by payment to him
of an additional sum of money equal to the amount which he normally
would have earned as wages during the period from the date of the clos-
ing of the armature-winding department in August 1945 to the date of
the offer of reinstatement or placement upon a preferential list, as
provided above, less his net earnings during the said periods;
2 The Board expressly reserves the right to modity the back pay and reinstatement pro-
visions if made necessary by a change in circumstances in the future, and to make such
supplements thereto as may hereafter become necessary in order to define or clarify-
their application to a specific set of circumstances not now appearing
RUSSELL ELECTRIC COMPANY 773
(c) Offer Bert Davis immediate and full reinstatement to his former
or a substantially equivalent position, without prejudice to his seniority
or other rights and privileges;
(d) Make whole Bert Davis, Michael J. Fantozzi and Mario M.
Barelli for any loss of pay they may have suffered by reason of the
respondent's discrimination against them, by payment to each of them
of a sum of money equal to the amount that he normally would have
earned as wages during the period from the date of the respondent's
discrimination against him to the date of the respondent's offer of
reinstatement, less his net earnings during said period;
(e) Post immediately in its plant at Chicago, Illinois, copies of the
notice attached to the Intermediate Report marked "Appendix C." 3
Copies of said notice, to be furnished by the Regional Director for the
Thirteenth Region, shall, after being duly signed by the respondent's
representative, be posted by the respondent immediately upon receipt
thereof and maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the re-
spondent to insure that said notices are not altered, defaced, or, covered
by any other material;
(f) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby is,
dismissed, insofar as it alleges that the respondent discriminatorily
discharged or laid off Elmer Milcezny and that it refused to hire Ray-
mond C. Shellenberger because he had filed charges with the Board.
MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Mr. Gustaf B. Erwkson , for the Board.
Schwartz & Cooper, by Mr. Ira S. Kolb, of Chicago, Ill., for the respondent.
Mr. Fred Dutner, of Chicago, Ill ., for the Union.
STATEMENT OF THE CASE
Upon a fourth amended charge duly filed on December 26, 1945, by United
Electrical , Radio & Machine Workers of America , C. I. 0., herein called the
3 Said notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner," and substituting
in lieu thereof the words "A Decision and Order ." In the event that this Order is enforced
by decree of a Circuit Court of Appeals , there shall be inserted , before the words "A Deci-
sion and Order ," the words "A Decree of the United States Circuit Court of Appeals
Enforcing."
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, the National Labor Relations Board, herein called the Board, by its
Regional Director for the Thirteenth Region (Chicago, Illinois), issued its com-
plaint dated June 17, 1946,- against Russell Electric Company, herein called the
respondent, alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section S (1),
(3), and (4) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act Copies of the complaint and notice of hear-
ing were duly served on the respondent and the Union.
With respect to the unfair labor practices, the complaint alleges in substance
that the respondent, by its officers, agents and supervisory employees: (1) did
on or about November 2, 1944, refuse to employ Raymond C. Shellenberger, and
since that date has failed and refused to employ said employee, foi the reason
that lie joined or assisted the Union and engaged in othei concerted activities ;
(2) did on or about June 28, 1945,.refuse and tail to employ said Raymond C.
Shellenberger, and since that date has failed and refused to employ said em-
ployee, for the reason that he filed charges under the Act, and because he as-
sisted the Union; (3) did on or about April 20, 1945, discharge Bert Davis,'
on or about December 18, 1945, lay off and discharge Michael J Fantozzi and
Elmer F Milcezny, and on or about December 19, 1945, lay off and discharge
Mario M. Barelli, and since said dates has failed and refused to employ or rein-
state said employees to their former or substantially equivalent positions, for the
reason that they joined or assisted the Union or engaged in concerted activities
with other employees of the respondent for the purposes of collective bargaining
or other mutual aid or protection; and (4) by these acts, and from on or about
January 1, 1944,' and continuing to the date of the complaint, by warning, urg-
ing, threatening and discouraging its employees to refrain from assisting and
affiliating with the Union, interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act
On or about July 8, 1946, the respondent filed an answer wherein it admitted
the allegation of the complaint as to the nature and extent of its business, but
denied the commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Chicago, Illinois, from July 11 to
July 23, 1946, inclusive, before the undersigned Trial Examiner, duly designated
by the Chief Trial Examiner. The Board and the respondent were represented
by counsel and the Union by its official representative. All parties participated
in the hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all
parties.
At the close of the Board's case, the respondent moved separately to dismiss
the allegations in the complaint with reference to Elmer F. Milcezny and the
complaint as a whole. The motions were denied. After the taking of all testi-
mony, the respondent renewed its motions to dismiss Rulings on the motions
were reserved. The motions to dismiss are disposed of as hereinafter indi-
'The complaint alleges that Davis was dischaiged on April 13, 1945 This date was
amended by stipulation at the heating as noted above
2 The complaint originally alleged January 1, 1945 At the start of the hearing, counsel
for the Board moved to amend the complaint so as to show the date as above The
motion to amend was gianted over respondent's objection with the uuderstaYiding that a
reasonable adiouinnient of the healing would be granted upon request therefor by the
respondent if the respondent found that additional time was necessary in older to further
prepare its case No request for an adjournment upon such grounds was made by the
respondent at the hearing.
RUSSELL ELECTRIC COMPANY 775
cated. At the conclusion of the evidence the Board's counsel moved to conform
the pleadings to the proof as to formal matters such as names and dates. The
motion was granted over the respondent's objection.
All parties waived oral argument at the close of the hearing. Subsequent to
the hearing, counsel for the respondent filed a brief with the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Russell Electric Company is an Illinois corporation with its main office and
plant located at Chicago, Illinois. In the course and conduct of its business
and in the operation of its plant the respondent at all times mentioned herein,
causes and has continuously caused large quantities of raw materials, consisting
of steel, brass, copper and aluminum, to be purchased and transported in inter-
state commerce from and through States of the United States other than the
State of Illinois to its Chicago plant, and causes and has continuously caused
large quantities of the products manufactured by the respondent, consisting
chiefly of small fractional motors, to be sold and transported in interstate com-
merce from its Chicago plant into and through States of the United States other
than the State of Illinois. During the period from June, 1945, to June, 1946, the
respondent purchased for Use at its Chicago plant raw materials valued in excess
of $1,000,000, of which approximately 48 percent was obtained from points
outside the State of Illinois. During the same period the total sales of products
manufactured at its Chicago plant were in excess of $1,000,000, of which ap-
proximately 70 percent was shipped to points outside the State of Illinois.
During the times mentioned herein and prior to February, 1945, the respondent
employed at its Chicago plant approximately 1,200 persons. By August, 1945,
the number of respondent's employees had been reduced to approximately 1,000.
Shortly after August 14, 1945, or the end of the war with Japan, the number
of respondent's employees was further reduced to approximately 1S5 persons.
During all times mentioned herein and until August, 1945, the respondent was
engaged for the most part in war production
II. THE LABOR ORGANIZATION INVOLVED
United Electrical, Radio & Machine Workers of America, C. I. 0, is a labor
organization which admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
1. Interference,) esti aint, and coercion
A. Introduction
The record indicates that the Union first started organizing the respondent's
employees in the early part of 1944. In the beginning- the organizational activi-
ties were secretive consisting mainly of selecting employees who could be trusted
for the organizing committee or to otherwise assist in the solicitation of em-
ployees in the various departments of the plant. When the Union had gathered
sufficient strength, the drive for membership came out into the open. This
occurred about July of 1944. Thereafter, employees were openly solicited to
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
join the Union by employee organizers on company property but on the em-
ployees' own time (as distinguished from working time).' By letter dated
March 17, 1945, the Union notified the respondent that it represented a majority
of the employees and requested recognition as their sole collective *bargaining
agency The record does not disclose any subsequent negotiations between the
respondent and the Union, but does indicate that the Union filed a petition for
certification with the Board about March or April of 1945, and that the American
Federation of Labor intervened in the representation proceedings.
B. The circulars
The first circular of the Union was issued and distributed to employees on or
about July 20, 1944. Within a few days the respondent also distributed to the
employees a circular in answer to that of the Union Dui mg 1944 and 1945 the
Union issued approximately 24 circulars and the respondent issued nine which
answered particular union circulars The respondent's circulars were dis-
tributed by the respondent's guards to the employees as they left the plant at
the end of a shift.
Walter W. Swoboda, respondent's Director of Industrial Relations, testified
that the respondent's circulars were issued to answer certain "misinformation"
contained in the circulars of the Union and for that reason only. However, the
respondent's circulars, taken as a whole, clearly disclose the respondent's hos-
tility toward the Union and show a studied campaign on the respondent's part
in opposition to the Union's organizational efforts. 'or example, on or about
May 22, 1945, the Union issued a circular entitled, "COMPANY DELAYS ELEC-
TION T" The back of the circular contained a notice of a future union meeting
which was to be held at "Orlandies Grill." One or two days later the respondent
issued the following circular :
A PROGRAM OF HATE
"You must tell a Real Big Lie, to get people to believe it, etc '
... Adolph (Defunct) Hitler
Hitler's program began in the back of a cheap Munich saloon. The Nazi
party champions of "Divide and Conquer" spared nothing to secure followers !
Hate, lies, ... even murder was their technique Yes, there were laws in
those days ... "WE ARE THE LAW !" they cried The "saloon meetings"
laid the ground work for the infamous "Beer Hall Putsch." The rest is
History, written with the blood of the Allied Nations
A GOVERNMENT ORDERED ELECTION , NOT A " SELL OUT"
Your company respects the rights of those who want a Union, as well as
those who do not. It is only right, in a case of divided opinion, to proceed
the way the LAW OF THE LAND ASKS US TO.
It would be unfair to those who have no desire to belong to a Union, to
make "A DEAL". We will not be the victims of a "sell out" accusation
later on. Another fact-we can not make a "Deal" with anyone who resorts
to pressure, threats, falsehoods, and "name calling" to gain their ends.
® There is testimony to the effect that organizers for the Union were cautioned by their
supervisors not to solicit employees during working time.
RUSSELL ELECTRIC COMPANY 777
Your company is very anxious to see an election . . BUT only an elec-
tion which will be conducted ACCORDING TO THE LAW This election
will come when the Government decides that the issues are in order. In
the meantime, we will not BOW to dictatorial pressure by anyone. We
will abide by a fair procedure as outlined in the National Labor Relations
Act.
Joining or not joining any union is your right, just as it is your right to
join a church, or a club. We did riot nor will we ever fire anyone who joins
a union, club , or church, etc.
Any organization which places the welfare of its members first, and does
not resort to false propaganda, name-calling , threats, and unmerciful pres-
sure for Its own profit, is afine organization. Industry and the worker has
benefited a great deal from these organizations. BUT THEY "MISS THE
BOAT" when they try FORCE
You can LEAD a man through the fires of Hell ! !
But you can't DRIVE him across the street !
RUSSELL ELECTRIC COMPANY,
WALTER W. SWOBODA,
Director of Industrial Relations
Swoboda testified that the heading of the above circular and the first para-
graph were in answer to the whole of the Union's circular. Obviously this para-
graph has particular reference to the notice of meeting on the back of the Union's
circular. This conclusion is inescapable since the Union's notice specifies a
"grill" and the above paragraph mentions "saloon meeting" and "Beer Hall
Putsch".
C Statements of supervisory employees
Employee Peter Raia was employed in the Armature Core Department at
some time during the year of 1944 and prior to September thereof. His fore-
man was Sam Mammena. Raia became interested in the Union and was active
in its behalf by soliciting employees for membership during his free time. At
some time while employed in the above department, Raia had a conversation
with Mammena As to this conversation Rata testified as follows : "
. . . lie stopped me, he came over to my department and called me out.
He said, 'Pete, I want to have a talk with you." I said, "All right." He
said, "I heard you are sticking around with the Union
I said, "Yes," he said, "Well, I use to belong to unions once," he says,
and it never got me anywhere . . .
Raia impressed the undersigned as an honest and sincere witness and accord-
ingly the above testimony is credited.
° Mammena was not called as a witness at the hearing . However, counsel for the Board
and the respondent entered into a stipulation to the effect that Mammena, if called as a
witness , would deny the statements attributed to him by Raia and "whatever credibility
be given to the testimony of Sam Mammena shall be weighted in the same manner to the
,same degree as to the credibility fixed by the Trial Examiner with reference to the testi-
mony of Walter Swoboda." Swoboda did not impress the undersigned as a reliable or
credible witness in all respects . He was evasive in his answers , especially when ques-
tioned by counsel for the Board in connection with the circulars issued by the respondent
and with respect to the time when the respondent first knew of the organizing activities
-of the Union in the plant
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the same day, and some few hours after his conversation with Mammena,
Swoboda approached Rain and accused him of activities on behalf of the Union
during working hours. Raia denied the charge 5 There is no evidence in the
case or contention by the respondent that Raia actually did solicit employees
on company time, nor did Swoboda offer any explanation as to the reason for
his warning to Raia. The evidence shows that employees were ordinarily cau-
tioned by their foremen against solicitation on company time and there is not
any other incident in the case where such warnings were given to employees by
Swoboda or by any persons under his immediate supervision Since there is
no evidence or contention that Raia had been conducting union activities on
company time, it appears that Swoboda's warning was totally unnecessary.
In the undersigned's opinion, the short lapse of,time between Mammena's talk
about the Union and Swoboda's warning is more than coincidental. If Raia
had been conducting union activities on company time, Mammena certainly would
have cautioned him about such activities during his conversation about the
Union. Accordingly, the undersigned is convinced and finds that Swoboda's
warning was not sincere but was merely issued by him to intimidate Raia and
discourage his activities on behalf of the Union.
Harry Fiester was foreman of the machine shop. Paul Fortier, Division Head,
was Fiester's superior. About March or April of 1943, Fortier conducted "job
analysis" interviews of employees in Fiester's department Fiester testified
credibly that he overheard some of these interviews by Fortier and that they were-
conducted as follows
At this time he started talking to the employees , and this was, of course,
after he got through finding out what their machine shop experience was,
if they knew how to solder , or anything like that . Then he said to them,
as close as I can remember , was that the Union ; lie said he didn ' t understand
why they should join the Union , because they were getting paid union wages,
and they will only be paying two bucks to the union for nothing.
Fortier testified that in one particular case mention was made of the Union,
when an employee asked him what he thought about it and that he had replied
that "some unions are good and some unions are not" and that it was up to
the employees to decide on any particular organization . Otherwise , Fortier
denied the statements attributed to hun by Fiester . Fortier further testified-
that Fiester was discharged for "leaving people go home ahead of time and
okaying time -cards up to the full amount of hours. " Fiester was not called by
the Board in rebuttal and did not deny that he was discharged for the above-
reason. The Board introduced into evidence an affidavit dated August 7, 1943
and signed by Fortier . In part, this affidavit reads as follows :
During the spring we conducted some job analysis interviews The question
of the union came up in some of them since circulars were being passed out
frequently . One asked me if the union could help and I told them it could
if it was the right kind of union We talked back and forth on the points
they brought up I may have asked one or two persons what they thought
of the union which was passing out the handbills . I never inquired as to
who signed cards for the union and who had ever belonged to a union,
before. Frequently we would discuss the handbills I would mention what
experiences I had had and what I read in the paper.
6 Raia testified without contradiction to the above conversation with Swoboda , and the
undersigned credits his testimony in this connection
RUSSELL ELECTRIC COMPANY 779
At the hearing, Fortier denied that the circulars were discussed by him with
employees under his supervision or during the interviews Fortier did not im-
press the undersigned as a credible witness, especially in view of the fact that
his testimony at the hearing was in serious conflict with the statements in his
affidavit. As stated above, the affidavit was signed in August of 1945, or shortly
after the interviews had taken place. The statements in the affidavit clearly
indicate that discussions concerning circulars took place during the interviews
Fortier's attempts at the hearing to explain sworn statements in his affidavit
were, in the undersigned's opinion, extremely weak
At about the time that the above interviews by Fortier took place, Fortier
had a conversation with Fiester concerning union stewards. As to this conver-
sation Fiester testified credibly that the following conversation ensued :
He says, "We don't care to have a union here," he says, and I says, "Why?"
And he says, "Well, we can't run the place the way we want to. We will
have to be bothering with union stewards."
Fortier denied the above statements. The undersigned does not find that this
statement by Fortier constitutes interference, since the conversation was between
supervisory employees, but believes it is worthy of note to show the ani-union
attitude of the respondent and of its supervisory employees which is apparent
throughout the record in the case.
John Lawler was employed by the respondent as a tool and die maker in the
toolrooni About April of 1945 Lawler had a conversation with James Brown,
Division Head, who had supervision over the respondent's toolroom. For several
months prior to the conversation Lawler had been wearing a button in the
plant designating that he was a member of the Union. As to this conversation
Lawler testified credibly as follows
Well, he said to me in the tool room, he said, "What are you wearing one of
those for`i" He says. "A man of your intelligence don't need to wear a
button to get anything out of a company like this."
I said, "Well," I said, "I believe I wear a union button for the same
reason everybody else is wearing one in here " . . lie said, "Well," he says,
"you know we don't need tool makers around here We can send all our
work out We can clean out our tool room and send our work out, if
necessary "
Brown testified that lie had a conversation with Lawler in the early part of
1945 but that in the conversation he merely talked to Lawler in an attempt to
dissuade him from resigning his position Otherwise Brown denied the state-
merits attributed to him by Lawler Concerning incidents involving Brown which
will be hereinafter related, the undersigned does not credit Brown's testimony
and, therefore. his denials as to this conversation are not credited
Conclusions
The undersigned finds that the respondent, by issuance of the above circular
and by the statements and actions of Mammepa, Swoboda, Fortier and Brown,
° Sidney Rein , an employee in the maintenance department at the time of the above
conversation , testified that he had a conversation with Lawler about April 1945 . As to this
conveisation Rein testified as follows.
He said lie had been in to see Mr Brown and Mr. Brown had objected to him wear-
ing the union button and asked him why lie wanted to wear a union button, that it
would never do hiin any good.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interfered with, restrained, and coerced its employees. Standing alone, some of
these statements and actions of respondent's officers and supervisory employees.
would not constitute interference, but in their totality and in conjunction with
other unfair labor practices hereinafter related, they show a deliberate policy on
the respondent's part to disparage and defeat the Union. In effect, the circular
set forth above compares the Union with Hitler and the Nazi party and, con-
sidering the date cf publication, it effectively held up to ridicule and disparaged
the Union. By the statements and actions of Mammena, Swoboda, Fortier, and
Brown, the respondent threatened, interrogated and discouraged its employees in
their union activities.
2. Raymond C. Sirelleuberger
a Introduction
The Board contends that the respondent discriiiiinatorily refused to grant
Shellenberger a leave of absence on November 2, 1944, which, in effect, amounts
to a constructive discharge, and thereafter refused to hire him although work
was available The evidence adduced by the board at the hearing shows that
Shellenberger, in addition to the November 2 incident, applied for and was refused
employment on three separate occasions, namely (1) on or about November 25,
(2) in the latter part of December, and (3) on or about June 28, 1945. There are
many questions of fact relating to these incidents and the undersigned, in herein-
after discussing them, will not attempt to set forth the conflicting testimony
verbatim In resolving the credibility issues the undersigned credits the testi-
mony of witnesses of the Board and the respondent in part.
b. The respondent 's refusal to hire on November 2, 1944, and thereafter
Shellenberger was first hired by the respondent about January of 1944 He was
employed as an armature winder in department 49 A (Armature Winding De-
partment), and his foreman was Frank Murolo.
Shellenberger was- active on behalf of the Union from shortly otter he was
first employed by the respondent until his employment was terminated The
record indicates that lie was the instigator of union activities in at least his
own department, if not the entire plant. In the beginning and until about July
of 1944, Shellenberger concealed his activities and they were mostly confined to
selecting employees who could be trusted in carrying on work for the Union
The evidence as a whole further discloses that he was regarded by both the
employees and management as the leader of the organizing efforts of the Union.'
About May 8, 1944, Shellenberger asked Murolo for a leave of absence for the
reason that his wife was ill Murolo granted the request and Shellenberger was
absent for about four weeks. At the end of that time he returned to work at the
plant. Thereafter and starting about the beginning of July 1944, Shellenberger
openly advertised himself as an adherent and organizer of the Union. During
July he protested to Murolo concerning an employee who was distributing circu-
lars of the respondent to employees on company time and property. In addition,
Shellenberger openly kept membeiship application cards of the Union on his
bench.
a Murolo testified that he as told by another employee during the first week ot Shellen-
bergei's employment that Shellenberger might attempt to organize the plant
RUSSELL ELECTRIC COMPANY 781
At some time in July 1944, Shellenberger and three other active members of
the Union were called into the office of Lloyd Connaway, respondent' s "general
works manager." Shellenberger testified credibly and without contradiction that
the following transpired: s
Q Tell us what he said?
A Well, the exact conversation, as I can see it-we all took a chair and
he introduced himself and I said, "Yes, I know you."
And he says, "Now, this question on the wage increases we have at the
Board for approval-now", he says, "I want you people to know that there
is no union or anybody else that can get them any faster than Russell
Electric."
Q. Than what?
A. He says, "There is no union or anybody else that can get the wage
increases for you any faster than Russell Electric can get them."
Q All right.
TRIAL, EXAMINER EADIE. Did he refer to the-War Labor Board?
The WITNESS He referred to the War Labor Board He says, "To prove
my point, 1 am going to call the War Labor Board-I know a person up
there," he says, "and I am going to call them and let you people talk to them."
I said, "Well, myself, personally, I don't care to talk to them." I said,
"If I want to find out any information about the wage structure, I will go
down to Ernest DiMaio or the union hall and I can find out more than
you can tell me or anyone else."
That is the attitude I took and it wasn't welcome, I could see that.
However, he called the War Labor Board or called someone. I don't
know if it was the War Labor Board, but he did call someone and he
talked to the party on the other end of the line for a couple of minutes
and lie said okay for the girls. He says, "Here is the telephone. You
listen in, and one of the other ones come in with me in the other office and
1 will connect up the other telephone to here and you can hear that we
are getting action from the Board."
He invited me, too, and I said, "I still don't care to listen," and Bob
Wagner and-if I remember right, one of the girl's didn't listen, but one
of them did, One of them listened on one telephone and one of the girls
went into the other office, connected, and listened in on the other telephone,
but I didn't. I think one of the other girls listened in, too. I am not
positive, but I think so. I know two of them did listen in.
Prior to the time of the above conversation with Connaway, Shellenberger
had questioned Murolo concerning the delay in raising the wage rate structure
in the plant, but neither Shellenberger nor the Union had requested any con-
ference with Connaway or with management concerning the matter. In view
of other acts of interference previously related, the undersigned believes and
finds that the above actions and statements of Connaway constitute interference,
restraint, and coercion
On November 2, 1944, Shellenberger again requested Murolo for an indefinite
leave of absence due to illness of his wife. Shellenberger testified credibly that
Murolo replied, "I am sorry but . . . whenever they want to leave for three
Connaway was not called as a witness
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or four weeks we have changed the policy You can't get a leave of absence . . .
We automatically figure you are no longer employed."'
Immediately after the above conversation with Murolo, Shellenberger Lett
the plant. Respondent's "Separation Notice" shows that Shellenberger "quit"
on November 2, 1944, with the reason stated as "going to another state-wife
ill."
On about November 25, 1944, Shellenberger returned to Chicago. He tele-
phoned Murolo and told him that he wanted a job. At Murolo's suggestion,
Shellenberger went to the respondent's plant the next day. There he was inter-
viewed by James Glenn, Employment Director. In substance, Glenn told
Shellenberger that the respondent did not need armature winders at that time,
but did need electrical inspectors Shellenberger stated he would take the
job as electrical inspector but Glenn refused him that position " 0 1 [urolo was
called to the office and he told Shellenberger that work in his department was
slack and that he was transferring employees to other departments Murolo
suggested to Glenn that perhaps he could find a job for Shellenberger in another
department, but Glenn insisted that Shellenberger should be hired as an
armature winder. Finally, Murolo stated that the respondent was expecting
a new contract and advised Shellenberger to take a temporary job in another
plant for about a month, at the end of which time. he should contact him
(Murolo). Shellenberger agreed to do this and left the plant"
Some few days after November 26, as the result of a visit to the office of
the United States Employment Service where the respondent had a requisi-
tion for electrical inspectors on file, Shellenberger again visited i espontlent's
plant and applied to Glenn for the job of electrical inspector Glenn refused
to employ him as such'Z
Concerning further conversations with Glenn and Murolo, Shellenberger
testified credibly that about one month after November 25, 1944, he again tele-
phoned Murolo and Murolo told him to report for work; that he went to the
plant and told Glenn of his talk with Murolo ; that Glenn replied that \Iurolo
did not need armature winders, that he then suggested that Glenn see \Iurolo ;
that Glenn answered that there was not any need for him to see Murolo but
that he would, that Glenn left for a short time and when he returned lie told
0 As to this conversation Dlurolo testified as follows
Well, he mentioned that his wife was ill, she was in Iowa, and that the doctor had
said, If he were there it might help her and lie would like to go and lie asked me for
an indefinite leave and I told him I could not give him an indefinite leave We talked
in general as to why we could not give anything like that. I just told him "indefi-
nite" meant there was no definite date, so I couldn't make it indefinite I asked
him how long he thought he might be gone'i He said, "Two or three weeks, maybe a
month, and then again I might stay there for good, I don't know "
Murolo farther testified that there had not been any change of policy in connection with
leaves of absence and denied the statement attiibuted to him by Shellenberger in this
connection Other witnesses for the respondent also testified that there had been no
change of policy concerning leaves of absence
10 Sliellenberger testified to the effect that he was qualified as an electrical inspector.
The respondent adduced evidence showing that it had certain specifications as to training
and experience for electiical inspectors and that Shellenberger did not meet these require-
ments The undersigned finds that Shellenberger's training and experience did not quality
him as an electrical inspector in the respondent's plant and that the above and subsequent
refusals to hire him as such were not discriminatory.
11 Glenn was not available to the respondent as a witness Shellenberger testified cred-
ibly to the above conversation without contradiction Murolo testified substantially to
the same effect as Shellenberger, insofar as his part in the conversation was concerned
12 See footnote 10, supra.
RUSSELL ELECTRIC COMPANY 783
hint that Murolo did not need any armature winders ; that he ( Shellenberger )
left the plant and again telephoned Murolo; that he reported his talk with
Glenn to Murolo ; that Murolo told him to return to the plant; and that there.
after, although Murolo stated to Glenn that he would recommend Shellenberger
for any temporary lob in the plant, Glenn again refused to employ him.
Murolo testified that he did not "think" he had any conversations with
Shellenberger, either in person or by telephone, after the conversation in the
latter part of November of 1944 As a whole, however, his testimony, in effect,
denies that he ever told Shellenberger to report for work. There is evidence
in the case to support Shellenberger's testimony in this connection. Requisi-
tions for armature winders, which will be hereinafter discussed more fully,
were on file in the respondent's employment office at about the time of the
above conversations. Shellenberger obviously was confused in his testimony
concerning this meeting with Glenn and Murolo, as is pointed out in the
respondent's brief. However, this confusion was as to the sequence of events
and not as to the actual occurrences
c. The respondent's alleged refusal to hire on June 2S, 1945, because of charges
filed with the Board
Through the Union, Shellenberger filed an unfair labor practice charge with
the Board on about December 19, 1944 After noticing in a Chicago paper an
advertisement of the respondent for certain skilled help, including electrical
inspectors, Shellenberger returned to the plant on June 28, 1945, and applied
for a position He was first interviewed by a female clerk and then by John
Conway, successor to Glenn as Employment Director.
As to his interview with Shellenberger, Conway testified credibly, in sub-
stance, that Shellenberger applied for the position of armature winder; that
he (Conway) checked and found that there were no requisitions for armature
winders ; that upon telling this to Shellenberger, the latter replied that Conway
was not trying to find him a job because of the charges filed by the Union against
the company; and that Conway then informed Shellenberger that any further
conversation should be held with Swoboda
Conway and Shellenberger then went to Swoboda's office During the con-
versation between Swoboda and Shellenberger, Conway and Dorothy Kent,
Swoboda's secretary, were present, and the latter made a transcript of the
conversation.
Concerning his conservation with Shellenberger, Swoboda testified credibly as
follows : "
Q. All right.
State . as far as you can recall, what the conversation was that took place
on that date in your office?
A. Raymond Shellenberger came in and stated that lie believed he could
work there and that we were not hiring him because of some charges
The respondent introduced into evidence the above-mentioned memorandum transcript
of the conversation which purportedly was prepared and sworn to by Kent Kent was not
available as a, witness This exhibit confirms Swoboda's version of the conversation
Shellenberger, when examined in connection with the transcript of the June 28 conversa-
tion, denied its contents for the most part Conway corroborated Swoboda's version of the
conversation Murolo testified that on June 28 lie was fist called by a girl in the personnel
office and then by Swoboda and that in each instance lie informed the caller that lie did
not need armature winders
755420-48-vol 74-51
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which were filed on his behalf and I, of course, told him that wasn't true-
that if there were positions available that he could qualify for, that I did not
see any reason why he could not work ; and I suggested that I check with his
foreman of his former department and I called Frank Merillo (sic) and
asked him whether or not he needed any male help He said lie did not,
but that at that particular time lie was farming out people to other depart-
men ts.
After I was through talking to Frank illerillo (sic), and explained what
the situation was to Raymond Shellenberger-the fact that there were no,
jobs open at that time-at that particular time, I explained that he should
apply again.
Q. What, if anything, did Shellenberger say with reference to advertise-
ments?
A. Oh, he did say that there was some ads in the papers calling for help
and he•was here to present himself and I explained to him that the people
that we needed were people who possessed higher skills such as tool and die
makers, draftsmen and so forth ; and that we were in pretty bad shape there
as far as employment was concerned.
Q. What, if anything , did Ray Shellenberger say with reference to his
charges filed with the National Labor Relations Board?
A. Well, I am quite sure he asked me whether or not the charges had any-
thing to do with it and I told him that those charges had nothing whatsoever
to do with it; that I felt that those charges were untrue and that our rela-
tionship was somewhat strained, but I felt that he was sincere about it and
that his appearance at the plant on that particular day had nothing whatso-
ever to do with him getting employment there
The respondent's contentions
The respondent states in its answer :
Respondent further states that the employment of Raymond C Shellen-
berger was terminated on November 2, 1944, upon request of the said Raymond
C. Shellenberger for the reason that it became necessary for said person to
leave Chicago, Illinois, because of illness in his family.
Respondent further states that on June 2S, 1945, at the time Raymond C.
Shellenberger requested employment, respondent had no need for any arma-
ture winders, the position which said party occupied during his employment
by respondent, and that respondent had no other position available for which
Raymond C. Shellenberger was able to qualify.
At the hearing the respondent contended, in substance, that when Shellen-
berger returned to the plant in the latter part of November, 1944, work in the
armature winding department was slack; that starting at about that time em-
ployees of that department wei e either being transferred to other departments
or were being laid off ; that no armature winders were hired after November of
1944; that although the respondent had contracts for armatures running until
February, 1946, work in the department gradually fell off due to cut-backs in
orders, especially after V-E Day in May of 194.5; and that the armature winding
department practically ceased to exist about August, 1945, or shortly thereafter.
The respondent further contended at the hearing that it did not grant "indefi-
nite" leaves of absence to employees
RUSSELL ELECTRIC COMPANY
Concluding Findings
785
The respondent does not contend that the quality or, quantity of Shellenberger's
work in any way entered into the termination of his employment on November
2, 1944, or the respondent 's subsequent refusals to rehire him. In fact, it is
admitted that he was one of the best and highest paid armature winders in the
department. The respondent contends that he "quit" his job on November 2
because of the fact that the respondent refused to grant an "indefinite" leave of
absence. However, Shellenberger testified and the undersigned finds that when
he requested Murolo for a leave of absence on about May 8, 1944, he did not
specify any definite length of time that he would be absent Y4 Swoboda testified
that the granting of leaves of absence was left up to the individual foremen
and that it was the foremen's job to discourge leaves when the plant was busy
and to encourage them when work was slack. Moreover, evidence adduced by
the respondent shows that work in the Armature Winding Department was fall-
ing off beginning about the end of September, 1944, and that two employees in
Murolo's department were laid off during the week ending September 29. Under
the circumstances, it would seem that Murolo would have granted Shellenber-
gers' request for a leave of absence rather than release him, especially since the
respondent was expecting the award of a new contract for armatures. The ques-
tion then presents itself of why Shellenberger was granted an indefinite leave in
May but was refused a similar leave in November There can be only one an-
swer, in the undersigned's opinion, namely, the respondent had by the latter
time discovered that he was the leader of the Union's organizing drive in the
plant and was anxious to dispose of his services if given an opportunity. That
the respondent was concerned with his union activities is clearly shown by the
fact, as found above, that he and other active members of the Union were sum-
moned to the office of Connaway in July, or about the time when Shellenberger
openly advertised himself as an adherent and organizer of the Union. At the
meeting with Connaway, Shellenberger refused to listen in on the telephone
conversation between Connaway and someone purported to be connected with
the War Labor Board and he was otherwise hostile to Connaway's attempts to
satisfy those present on the wage increase application
As to the conversations between Shellenberger, Murolo and Glenn on about
November 25 or 26 and in the latter part of December, the facts indicate that
Murolo was anxious to rehire Shellenberger either as an armature winder or on
a temporary job in another department On each occasion Shellenberger first
telephoned Murolo In th+e first conversation Murolo told him to come to the
plant and in the latter Murolo told him to report for work. However, on each
occasion when Shellenberger went to the plant, he was refused a job by Glenn,
the Employment Director. There is evidence in the case to support Shellen-
berger's version of the telephone conversation with Murolo in December. At
about the time of this conversation with Murolo, the Armature Winding De-
partment had filed at least two requisitions with the respondent's employment
14 Murolo testified that Shellenberger asked for a two or three weeks ' leave at that time.
However, it is Sliellenberger's uncontradicted testimony that he was absent for about four
weeks. The respondent introduced into evidence a document entitled " separation notice"
which shows the last clay of work as May 8 for Raymond Shellenberger The -reason or
separation is noted as leave of absence, and the length of the leave of absence granted is
not specified in the document This exhibit supports Shellenberger ' s testimony to the effect
that an indefinite leave of absence ii. - granted in May of 1944
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office , each of which requested the hiring of eight persons i6 Murolo testified
to the effect that the persons to be hired were to be trained in the respondent's
school, that all the requisitions were continuing and called for only eight persons,
that the requisition was made in anticipation of the award to respondent of a
new contract for armatures, and that after November 1944 his department never
did require or hire armature winders since the contract was never awarded.
The undersigned, however, does not believe Murolo to be a credible witness in
all respects 18
Even if all the requisitions were for trainees, they show that the respondent
needed armature winders and intended to hire them.. The trainees would have
become armature, winders upon completion of the training period which the
evidence indicates took several weeks. In addition, the respondent had arma-
ture contracts running until February 1946." There is testimony concerning
cut-backs which started in April 1945, but, other than vague testimony that work
was slack in the Armature Winding Department, there is no specific evidence of
any cut-back in November or December of 1944
Accordingly, it appears that Murolo intended to hire Shellenberger as an
armature winder in the latter part of December.
Accordingly, the undersigned is convinced and finds that the respondent on
November 2, 1944, discriminatorily refused to grant Shellenberger a leave of
absence, and thereafter, refused to employ him by reason of the fact that he was
a member of and was active on behalf of the Union
As noted above, the undersigned credits the testimony of Conway and Swoboda
as to the conversations with Shellenberger on June 28. While it has been found
above that Swoboda in his testimony concerning the respondent's circulars was
evasive and not a credible witness, the undersigned credits his testimony con-
cerning the June 28 conversation because the evidence in the case, as a whole.
supports his testimony in this respect. There is nothing contained in the state-
ments of Swoboda, as found above, that would indicate or constitute a violation
of Section 8 (4) of the Act, and therefore it will be recommended that this allega-
tion of the complaint be dismissed. The undersigned does not attempt to make a
determinative finding as to the probable length of time that Shellenberger would
have been in the respondent's employ after November 2, 1944. Although it con-
clusively appears that the Armature Winding Department ceased to exist about
August, 1945, the evidence shows that the respondent had a policy of transfeiring
employees to Other departments when work in their own departments ceased or
16 Copies of the requisitions were introduced in evidence. One dated December 13, 1944,
specified eight persons , either male or female, with the job description designated as "Arm.
Winding" . This requisition also contained the notation , " Effective until filled " Another
requisition , dated December 18, 1944 , also shows eight armature winders but specifies "to he
trained in school " Two other requisitions were on file which contained identical notations,
insofar as the Armature Winding Department was concerned , as the one dated December 13.
16The Board introduced in evidence an affidavit dated January 23 . 1945, and signed by
ilfurolo The body of this affidavit is set forth in Appendix A. attached to this report In
his testimony concerning this affidavit , Murolo testified that Betty Scaiuzzo and Betty
were not hired as armature winders ; that neither they nor Joseph Fox were included
in or hired as a result of the requisition for eight trainees and that Fox was an armature
winder who came from the respondent's armature school As for the statement in his
affidavit that he would "grab" an experienced winder, Diuiolo testified that th a t was his
personal feeling The undersigned does not believe that 1lurolo ' s explanations of his
affidavit are plausible
17 This was testified to by Swoboda . From Murolo ' s testimoy , however , it would appear
that the contracts were near completion in December of 1944 There is no dispute that
the armatuie contracts were cancelled in August 1945 and that the Armature Winding
Department ceased to exist shortly thereafter
RUSSELL ELECTRIC COMPANY 787
was slack 'Under the circumstances it is probable that Shellenberger might
still be working foi the respondent. Since, absent discrimination, the probabilities
are that Shellenberger would still be in the respondent's employ, and since re-
spondent must disentangle itself from the consequences of its own illegal conduct,
the undersigned will recommend that the respondent offer Shellenberger rein-
statement
3 The dischai (le of Bert Davis 28
Davis was first hired by the respondent about April of 1943. He left the
respondent's employ from September 18 to November 17, 1943, at which time he
was rehired. He was employed by the respondent as a first-class millwright in the
maintenance department. He became interested in the Union early in his em-
ployment and about February 1945, he solicited employees to sign membership
application cards of the Union. For several weeks or a month prior to April 20,
1945, Davis wore a button in the plant designating him an organizer of the Union,
,md for some time prior to that he had worn an ordinary button of the Union.
At about April 1945, and during all times hereinafter mentioned, Reginald
Roddy was foreman of the maintenance department and James Brown, Division
Bead, was Roddy's superior. When the maintenance department first came under
his jurisdiction in April 1945, Brown interviewed individually the maintenance
employees as to their qualifications The employees were told by Roddy to report
to Brown for the interviews and he told some of them, including Davis, to remove
their union buttons before being interviewed by Brown '0 Roddy also advised at
least one employee not to wear his union buttons as "MMMr. Brown don't like
unions." 20 The undersigned finds that these statements of Roddy to employees
under his supervision constitute interference, restraint, and coercion
Disregarding IRoddy's warning, Davis wore his union buttons when interviewed
by Brown.2' Some few days after this interview and on April 20, 1945, Davis was
laid off for the reason, as stated on his separation notice, "Force reduced lack of
work " 22
'd The undersigned does not find Davis to be a credible witness in all respects Accord-
ingly, his testimony is not credited unless uncontradicted or corroborated by other witnesses
or evidence
is Davis and Ronald Dickinson , another maintenance employee, testified credibly to the
above statement by Roddy. Dickinson testified that Roddy made this statement while he
(Dickinson) and Davis were together
20 Sidney Rein, a "group leader" in the maintenance department, testified credibly that
the above statement was made to him by Roddy in the presence of Davis. He further testi-
fied that Roddy also made the same statement to Davis Roddy denied, in effect, the state-
ments attributed to him by Davis, Dickinson and Rein For reasons hereinafter stated,
the undersigned does not credit Roddy's testimony in all respects. Roddy testified that he
told the employees in a "group" about the forthcoming interviews with Brown , that he told
Davis to "tidy up ' ; that Davis, referiing to his union button, said, "Shall I take this off?" ,
and that lie (Roddy) did not make any comment
1' Both Davis and Rein testified that he (Davis) wore his union button Dickinson testi-
fied that he did not see Davis remove his button prior to his interview with Brown
Brown testified that lie did not notice any union buttons on Davis when he interviewed him.
=2 Another document concerning Davis, dated April 20, 1945, and entitled, "Personnel
Advice," states, "This man has been employed as a millwright, but due to lack of work, it
has become necessary to transfer various employees who have the proper experience and
ability to machine repair, but Mr Davis has no training in this class of work " The docu-
ment is signed by Roddy and Brown.
Dickinson testified without contradiction that he also wore his union button during the
interview with Brown , and that he was laid off on the same day as Davis but did not file
a charge with the Board Rein testified without contradiction that lie did not wear has union
button during the interview with Brown and that he was employed by the respondent until
January 1946.
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That same day and the following day Davis had conversations with Ted Castle,
day foreman of the "basement machine shop." With respect to these conversa-
tions, Davis testified without contradiction and the undersigned finds that he told
Castle that he had been "let out" ; that Castle said he thought he could use him
on the night shift as he needed a lathe operator; that he (Davis), after saying
that he wanted the job, told Castle that he would telephone him the next day;
and that when he spoke to Castle the following day, Castle said that Paul Fortier
(Castle's Division Head) had told him that Davis could not work there and that
Castle could have "anyone else in the building" except Davis.
Since April 20, 1945, Davis has not been called back to work by the respondent.
The respondent's contentions
The respondent's contentions as to the lay off of Davis are set forth in its answer
-as follows :
That on or about April 20, 1945, Bert Davis was laid off for the following
reasons:
(1) Lack of work in his department.
(2) The entire division and organization structure of respondent was
then being revised and an analysis was then made of the qualifications of
all employees being considered for the positions then available. Bert Davis
did not possess the necessary qualifications. By reason thereof Bert Davis
and other employees who were not qualified, were laid off because respondent
no longer required the type of work being rendered by such employees.
At the hearing, when asked by the Trial Examiner to clarify the respondent's
contentions, counsel for the respondent stated, ". . . we didn't lay him off
with the expectation of hiring him. In other words, our contention is that Mr.
Brown took over the task of machine work that Burleigh had prior to that time,
and he couldn't use this man, and Brown concluded from his qualifications and
background he was not the type of worker he wanted."
Brown and Roddy testified, in substance, that when Brown took over the
maintenance department, the machines in the plant needed major repairs; that
such work could only be done by skilled machinists ; that the millwrights in the
maintenance department at that time were not competent or able to perform the
necessary work ; that the millwrights were only able to make minor repairs, such
as replacing parts; and that there was not enough minor repair work to keep all
of the millwrights busy.
Concluding Findings
It appears that in April 1945 there were at least 7 employees in the Mainte-
nance Department under Roddy. Of these Rein and John Zallenas were group
leaders. Dickinson and Joe Zallenas were second-class mill:=nights or helpers.
"Castle was not called as, a witness. Fortier, who has been heretofore mentioned in
connection with Foreman Fiester, denied that he had made the above statement in his
conversation with Castle Fortier testified, in substance, that Castle asked him about a
job for Davis as a lathe operator on the night shift under Foreman Dan Russell, that
Russell was Davis' "brother-in-law" ; that he told Castle that he did not want employees
in his departments working under foremen to whom they were related as a similar situ-
ation in Foreman Frank Lass' department was causing Fortier "No end of trouble." Davis
testified that Russell was married to his wife's sister. Swoboda testified that the respond-
ent had no specific policy with reference to permitting persons to work under supervisors
to whom they were related and that in this connection the "foreman" is responsible for
harmony in his department.
RUSSELL ELECTRIC COMPANY 789
Toni Greco and John Fricano were classified as oilers (it appears that these
employees also acted as helpers in addition to their regular duties of oiling ma-
chinery). As stated above, Davis was a first-class millwright. Group leaders
also were first-class millwrights but received a higher rate of pay.
The respondent contends that at this time it was in need of skilled machinists
to perform the major repair work on its machines ; that there was a surplus of
millwrights who were not capable of performing this work ; and that in the lay-offs
those employees who were best qualified for the work were retained?` Although
it conclusively appears that Davis had seniority over at least 3 of the above
employees who were not laid off, the undersigned does not believe this question to
be material in view of the fact that it appears that Davis was the only person
with the rating of first-class millwright who was not a group leader on or about
April 20, 1945.
Prior to April of 1945 the respondent brought in outside help for the major
repairs on its machines. After April, Brown testified that 2 machinists were
hired in the Maintenance Department. Roddy also testified that 2 machinists
were hired about April of 1945, but his testimony indicates that these 2 machinists
.were not the same as those to whom Brown had reference. Brown's testimony
indicates that there was enough major repair work in the plant to require the
full time of the machinists Roddy testified, however, that the machinists to
whom he had reference did the same work as Davis but, in addition, also did
work that Davis was not capable of doing.R"
Although the respondent did not directly contend that Davis was discharged
because of the quality or quantity of his work as a first-class millwright, Brown
testified, in effect, that Davis was a loafer, not conscientious about his work and
otherwise inefficient. Roddy testified that Davis had been careless on several
jobs ; that his work was "poor", but that the only reason for Davis' lay-off was
lack of work. The Board introduced in evidence an affidavit dated September
10, 1945, and signed by Roddy, the body of which is set forth in "Appendix B,"
attached hereto. This affidavit is in serious conflict with Roddy's testimony and,
accordingly, the undersigned does not believe Roddy to be a credible witness in
all respects.2
Brown testified that from April of 1945 until he left the respondent's employ in
January 1946, some millwrights were employed, but testified that he did not know
the number. Rein testified that "numerous" second-class millwrights and 2 first-
class millwrights were employed after Davis' termination of employment in April.
It appears, however, that the first-class millwrights were the 2 machinists referred
to. in Roddy's testimony. It is to be noted that Brown testified to the effect that
24 Rein testified credibly and without contradiction that after April the respondent in-
stalled some new machines which required moving and erecting on the part of maintenance
Dien . This work apparently accounts for the hiring of the millwrights hereinafter discussed.
25 Both Roddy and Rein identified one of these " machinists" as an employee by the
name of Siebert Rein testified that Siebert did "exactly" the same type of work as per-
'formed by Davis. Roddy testified that Siebert and the other machinist hired at the same
,time were able to make parts for machines by using lathes, shapers, milling machines and
grinders, which Davis was unable to do for the reason that he did not have the "Knowledge
of that kind of machinery " Neither Siebert nor the other machinists whose first name was
identified as William were called as witnesses
"9 Prior to being shown the affidavit, on cross-examination Roddy testified that he had
never classified Davis as a "good" employee On redirect examination, Roddy testified that
Katz (A Field Examiner for the Board) wrote the contents of the affidavit, that he
(Roddy) read the affidavit before signing it, and that Katz "misinterpreted" some of his
statements.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent did not need millwrights because they were not capable of per-
forming major machine repairs and that for that reason the Maintenance De-
partment had a surplus of millwrights. In fact, Brown's testimony as a whole
indicates that there was very little, if any, work for millwrights in the plant
during and after April. There are various other discrepancies in Brown's testi-
mony and between the testimony of Brown and Roddy. Moreover, the under-
signed has found above that Brown made remarks to Lawler concerning the
latter's union button. These remarks clearly show Brown's anti-union senti-
ments The conversation with Lawler took place about the time of Brown's inter-
views with maintenance employees in April, 1945
Accordingly, the undersigned is convinced and finds that the respondent on
April 20, 1945, discharged Bert Davis and thereafter failed and refused to employ
him because of his membership in and activities on behalf of the Union The
undersigned further finds that Fortier refused to permit Davis to work in the
machine shop department- on the night shift on April 21, 1945, for the same
reason. Fortier's anti-union attitude is clearly disclosed in his remarks to
Foreman Fiester as found above The evidence shows that Foreman Lass, who
was subordinate to Fortier, had 4 or 5 of his relatives working for him Further,
Swoboda testified to the effect that there was no specific policy on the question
of relatives and that the question was therefore left to the individual foremen
to decide for themselves. Fortier's remarks to Castle when Castle questioned
him concerning the possibilities of putting Davis on the night shift clearly indi-
cate that Fortier had something more on his mind concerning Davis than the
latter's relationship to Foreman Russell, especially when Fortier said that
Castle could have anybody else in the plant except Davis.
4. The lay oils of toolroom, employees
A. The concerted activities
At all times mentioned herein, Gordon Danser was the foreman in the toolroom
and James Brown was over Danser as Division Head.
About December 6, 1945, the employees in the toolroom signed a round-robin
petition calling for a 25-percent wage increase 27 The petition was forwarded
to the respondent by being placed in the "company mail." The employees did
not receive any immediate reply from the respondent and, at the suggestion of
Michael J. Fantozzi, a meeting of employees was scheduled and held some few
days later. At this meeting Wilton Battles 2' was appointed chairman and Mario
M. Barelli was made secretary. A "committee" composed of Fantozzi, Battles,
Marcel Charamond, and John Flammini was also appointed. At the meeting
the employees signed a pledge to act concertedly 29 The day after the meeting
a letter was sent to the respondent advising it that a committee had been
appointed and that Battles should be contacted for further negotiations. This
letter was signed by Barelli as secretary. At the respondent's invitation, a
meeting with the committee was held on December 10. General Works Manager,
27 There were approximately 40 employees in the toolroom at the times mentioned herein.
It appears that at sometime during 1944 or 1945 all toolroom employees belonged to the
Union and that many of them wore union buttons in the plant
29 Battles was selected chairman because of his seniority as a toolroom employee. He
was still in the respondent ' s employ at the time of the hearing.
19 Several other meetings of the employees were held but the undersigned finds it unnec-
essary to comment upon them.
RUSSELL ELECTRIC COMPANY 791
Lloyd Connaway, and Walter Swoboda represented management at the meeting
and the respondent made a transcript of the discussions 30
The following day at another meeting of toolroom employees, the committee
reported the results of the meeting with management Thereafter, and some
few days prior to December 18, individual wage raises were granted to employees
by the respondent.
B The lay ott of Michael J Fantozzi
Fantozzi was hired by the respondent on June 19, 1945, as a milling machine
operator He was permanently assigned to operate one of two horizontal milling
machines which were in the toolroom " The only vertical milling machine in
the toolroom was operated by employee John Kemper 33
When employed by the respondent Fantozzi was a member of the United
Automobile Workers (CIO), and he openly wore a button of that union in the
plant. He subsequently became a member of the Union.
As related above, Fantozzi attended the meeting with management on Decem-
ber 10 as a member of the toolroom committee The next day he approached
Connaway and engaged him in conversation. Fantozzi testified without con-
tradiction as follows :
. . . I had a previous knowledge of the system of which the Western
Electric Company operated on, and that is, I knew of a retirement plan
which was in effect at Western Electric Company at that time, is now and
has been for quite some time, and it also came to my knowledge that the J. P.
Seeburg Company had a bonus plan in existence at that time. I approached
Mr Connaway with that and told him that I thought it would be only fair
in evaluating the differentials in rates that those two things be taken into
consideration, because after all, they were of a monetary value.
Q (By Mr. Erickson) That is, you told him in your conversation with him
of the knowledge that you had known of what was occurring at Western
Electric and at Seeburg?
A That is correct
Q Yes. All right.
A. And when I got through with my conversation he turned away from
me and he says, "Under no conditions can we take any retirement plan or
bonus system into consideration." I says, "Yes," I said, "You should. I
may want to work here for 25 years. You don't know whether I intend
to do so or not." So he says, "AW, heck, you are just a radical and a Com-
munist," and with that he walked away from me.
On December 18, 1945, Fantozzi and a maintenance man started to overhaul
Fantozzi ' s milling machine .33 About 10 minutes after Fantozzi had commenced
"*The evidence conclusively shows that the transcript omits parts of the discussion at
the meeting and that there was no agreement between the parties , as is indicated by the
last paragraph of the transcript.
"Fantozzi 's machine could be converted to vertical milling by means of a "vertical
head" attachment and Fantozzi often did vertical milling An employee by the name of
Wilson , who had more seniority than Fantozzi , operated the other horizontal milling
machine
32 Kemper had less seniority than Fantozzi , having been hired about one or two months
prior to December 1945
33 There is no dispute that Fantozzi 's machine required major repairs in December and
had needed such repairs for sometime prior thereto.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this job, he was told to report to Danser's office. As to the ensuing conversation
with Danser, Fantozzi testified credibly that Danser said, "I have to let you
go ... lack of work" ; that he replied, "Are you sure that that is the reason?";
that Danser then said, "Well, I want to assure you, Mike, that there is no personal
feeling . . . I have my orders, and I am just carrying them out" ; that he
asked Danser if the meeting (between management and the committee of tool-
room employees) had anything to do with the lay-off; and that Danser replied,
"You should never stick your neck out for someone else." 34 Fantozzi left the
plant immediately after this conversation with Danser.
By letter dated January 16, 1946, the respondent requested Fantozzi to report
for work on January 21. Fantozzi replied to this letter by telegram dated
January 18 in which he refused to return to work.9'
The respondent's contentions
In its answer the respondent states as follows :
That on or about December 19, 1945, Michael J. Fantozzi was laid off be-
cause of lack of work which resulted from the fact that his mill required
overhauling for sometime prior thereto , and it was concluded that such
repairs should be made during the Holiday Season.
At the hearing both Danser and Brown testified that there never was any
seniority policy applying to the toolroom . Brown testified to the effect that
when lay-offs were necessary in the toolroom , it was the policy to retain those
employees with the highest degrees of skill for the work available . There is no
evidence of any lay -offs in the toolroom prior to December 18, 1945.
The respondent further contended , in effect, that work in the toolroom was
slack in December of 1945. Brown testified that such work had been on the
downgrade for 3 or 4 months prior to December.
Concluding Findings
There is no dispute that Fantozzi 's machine needed major repairs on Decem-
ber 18 and for a considerable time prior thereto. There is considerable " evidence
in the case concerning the question of seniority , and an employees ' manual was
introduced in evidence . With respect to lay-offs this manual contains the fol-
lowing paragraph :
Whenever it becomes necessary for the Company to, lay off some of its
employees due to material shortages or contract cut-backs, both seniority
and ability will be determining factors.
84 It is undisputed that Fantozzi had no warning of the impending lay-off. On December
17 he had been informed by Danser that he had received a 10-cent per hour wage increase,
but no mention was made at the time of any possible lay-off. As to the above conversation
with Fantozzi, Danzer testified that he told him that the lay-off was due to the repair of
his machine. As to the statements attributed to him by Fantozzi, Danzer at first testified
that he did not "remember" making them, and then denied that he had told Fantozzi that
he should not stick his neck out. For reasons hereinafter stated, the undersigned does
not believe Danzer to be a credible witness in this and other respects.
.Si At the hearing Fantozzi stated that he does not desire reinstatement.
RUSSELL ELECTRIC COMPANY 793
As to seniority, Swoboda testified as follows :
Well, we tried according to seniority, whenever we felt that the ability was
the same, then we gave the benefit of the doubt to the person with the longest
record of employment but ability was the first factor that we considered in
lay-offs or rehires.
Neither the employees' manual nor Swoboda in his testimony make an exception
for toolroom employees in the administration of respondent's seniority policy.
The undersigned finds that the above policy applied to toolroom employees.
As noted above, both Brown and Danser testified that there was no seniority
policy in the toolroom. The undersigned does not credit their testimony in
this connection, but accepting their testimony for the sake of argument, it appears
that Fantozzi's lay-off was not in accordance with the policy as testified to by
Brown. Throughout his testimony he stated to the effect that, highly skilled
employees were needed in the toolroom and that where a question of lay-offs was
involved ability to perform the required work alone was taken into consideration.
Brown testified that Fantozzi received a higher rate of pay than Wilson, the
other horizontal milling machine operator, because he was a "better producer."
Therefore, according to Brown's own testimony, it would seem that he would have
recommended ,the lay-off of Wilson rather than Fantozzi. There are many dis-
crepancies and contradictions in the testimony of Brown and Danser. Brown,
in his testimony, indicates that he alone, without consulting Danser, determined
and recommended for specific reasons that Fantozzi and other toolroom em-
ployees should be laid off. Danser, on the other hand, testified that he had a
general discussion with Brown concerning lay-offs ; that in this discussion no
specific names were mentioned; and that he (Danser) selected the employees to
be laid off. Brown's testimony indicated that, with the exception of a lamination
die which will be discussed more fully hereafter, there was very little if any
die "construction" work in the toolroom ; that such die construction work was
done on a contract basis outside the plant; and that work in the respondent's
toolroom was confined, for the most part, to installation and maintenance of
existing dies in the plant Danser, on the other hand, testified that there was
considerable die construction work in the toolroom, which dies, however, were
not as big or involved as the lamination die.36 Brown ,testified that tool and die
makers were plentiful on the labor market during December, 1945, whereas
Danser testified that such skilled help was scarce at all times mentioned herein.
There are many other contradictions and discrepancies between the testimony of
Brown and Danser which the undersigned does not consider necessary to mention
herein as they do not particularly bear on the issues involved in the case. For
these reasons the undersigned does not believe Brown and Danser to be credible
witnesses.
The undersigned has found above that the seniority policy, as stated in the
employees' manual and as testified to by Swoboda, applied to all of respondent's
employees, including those in the toolroom. It is undisputed that Fantozzi
had more seniority than Kemper, the vertical milling machine operator, and
s8 The evidence discloses that dies were being constructed for the respondent's machines
at the times mentioned herein by reason of the fact that the respondent was converting to
peace-time production
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there is no contention by the respondent that Kemper was moi'e skilled than
Fantozzi as a milling machine operator In fact, Brown testified that Kemper
and Fantozzi were about equal insofar as ability was concerned .17
The evidence clearly shows that Fantozzi was the leader in the concerted
activities of the toolroom employees. He suggested that the employees organize
and notify the respondent that a committee had been formed to handle negotia-
tions on the requested wage increase He also acted as the committee spokesman
at the meeting with management In addition to these activities of Fantozzi, lie
was a member of the Union and was active on its behalf." The statement of
Connaway that Fantozzi was "just a radical and a Communist" shows that man-
agement regarded Fantozzi as an agitator of toolroom employees. Danser's
statement to Fantozzi on December 18 to the effect that he should not have
stuck his neck out for someone else confirms this conclusion
Accordingly the undersigned believes and finds that Fantozzi was laid off on
December 18, 1945, because of his concerted activities with other employees in
the toolroom and because of his membership in and activities on behalf of the
Union.
C The lay-off of Mario Al. Barelli
Barelli was hired by the respondent as a tool and die maker about May of 1944.
He joined the Union about January 1945, and openly wore a union button in
the plant for about 7 months prior to December 19, 1945 As stated above, he
was active in the concerted activities of the toolroom employees and was made
secretary of their organization . As secretary, he signed the letter sent to the
respondent which named the committee representing the employees
About July of 1945 , Bob Boulay , Brown 's "assistant," said to Barelli that if
Barelli were working for him and wore a union button, he would lay him off
Danser was present when Boulay made this remark , and said that Barelli
had a right to wear a button if he "saw fit." '° The undersigned finds that thin
remark of Boulay constitutes interference."
On December 18, 1945, Barelli was informed by Danser that his rate of pay
had been increased 5 cents per hour . The next clay, about quitting time, Danser
told Barelli, "You probably won't believe me when I tell you I am sorry to let
you go, but that is what I have to do ." Upon being asked by Barelli for a reason,
31 Brown further testified that Fantozzi was competent and able to run the vertical mill.
Danser at first testified that no particular employee was assigned permanently to the
vertical mill on or prior to December 18 and for "quite some time" after, but later testified
that Kemper was operating that machine for about 2 months prior thereto. Dancer
further testified (before correcting his testimony that Kemper was assigned to the vertical
mill prior to December 18) that no one was assigned to the vertical mill for the reason
that "The load of work behind the mill was not sufficient to warrant putting an operator
on it" ; and that "Fantozzi's skill lay in the operation of a horizontal milling machine"
(indicating- that Fantozzi was not competent or efficient as a vertical milling machine
operator).
as Dancer testified that he saw a number of toolroom employees wearing union buttons,
whereas Biown testified that he did not notice any union buttons in the toolroom
z Baielli testified to the above conversation without contradiction . Boulay was not
called as a witness This statement of Boulay further reflects the attitude of Brown toward
the Union . As found above , Brown himself made disparaging remarks concerning the
wearing of a union button to Lawler, another tool and die maker.
41 Although the record is silent as to Boulay ' s exact duties or authority , the uncontra-
dicted testimony that he was Brown's assistant sufficiently identifies him, in the under-
signed ' s opinion , as a supervisory employee or as part of management
RUSSELL ELECTRIC COMPANY 795
Danser replied that he was an "agitator" and would cause too much harm or
confusion in the department 41
The following day Barelli returned to the plant for his tool box. At that time
lie got a release which specified "lack of work" as the reason for his lay-off.
Barelli then went to Brown to have the reason for his lay-off changed on the
release. Danser was present at the time. Brown said that "lack of work" was
the "true reason," but Danser admitted that that was not the reason and that
what Danser had told Barelli the day before was correct 42
By letter dated January 16, 1946, the respondent requested Barelli to report for
work on January 21. Barelli replied by telegram dated January 13, in which
lie stated that he was not available for work with the respondent."
The respondent's contentions
The respondent contends in, its answer that Barelli was laid off because of
lack of work
Concluding Findings
For about 3 weeks or a month prior to his lay-off, Barelli had charge of or did
the "bench work" on the construction of the lamination die.44 After Barelli's
lay-off, John Barron, who was hired about 6 months prior to December 1945 and
who had less seniority than Barelli, was placed in charge of the lamination die
work
The anti-union attitude of Bi own has previously been shown In addition,
there is a definite showing in the case that the respondent was concerned with
the concerted activities of the toolroom employees and was determined to dis-
courage such activities by laying off the leaders. This is disclosed by the con-
versations between Fantozzi, Connaway, and Danser, as previously related, and
by Danser's remark to Barelli to the effect that he was an "agitator." Moreover,
it has been shown above that Barelli had more seniority than Barron. There is
no showing that Barron had more ability or skill than Barelli but, on the contrary,
the evidence indicates that they were about equal in this respect 4•u
41 Bat elli testified credibly to the above conversation . Danser denied the statements
attiibuted to him by Barelli `
42Barelli testified credibly to the above conversation with Brown and Danser Brown
admitted that Barelli wanted the reason for lay-off shown on the release changed He did
not deny Barelli ' s version of the conversation or testify as to whether or not Danser was
present Danser testified that he was not present during Barelli 's conversation with
Brown As stated above, the undersigned does not believe Danser and Brown to be credible
witnesses
41 At the hearing Barelli testified that lie did not desire reinstatement
44 Thee e is considerable testimony concerning the lamination die upon which the under-
signed finds it unnecessary to comment Brown testified that either on December 18 or
19 he discovered that a 'detail' or pact of the die was missing, that it would require 10
or 12 weeks to replace the lost part, and that there was no work on the die for Barelli
during that period of time Brown testified to other reasons for Barelli's lay-off but, as a
whole, his testimony strongly indicates that the missing detail was the immediate cause
Danser at first testified that the missing detail of the lamination (lie had "nothing" to do
with Baielh's lay-off, but later testified that it was "not necessarily" the cause Both
Brown and Danser testified to the effect that "bench work" was slack during December,
1945
46 Danser testified that Barron did not work continuously on the lamination die He
further testified that Barelli was a "very skilled (lie man , and that Barelli and Barron
did about the sane work and received about the same pay.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, the undersigned is convinced and finds that the respondent laid
off Mario M. Barelli on December 19, 1945, because of his concerted activities with
toolroom employees and because of his membership in and activities on behalf of
the Union.
d. The lay-off of Elmer F. Milcezny
Milcezny did not appear at the hearing as a witness. He was employed by
the respondent as a tool and die maker. He was laid off on December 18, 1945,
with the reason stated on his separation notice as "lack of work."
By letter dated January 16, 1946, the respondent requested Milcezny to report
for work on January 21. In a letter dated January 19, \lilcezny, in effect, refused
the respondent's offer of employment 90
There is testimony that Milcezny was one of two instigators of the concerted
activities of the toolroom employees. However, the Board failed to offer any
evidence that the respondent had any knowledge of this fact or that Milcezny
was a leader or active in the concerted activities after their inception.
While from the evidence as a whole, especially in view of the fact that Milcezny
was laid off at the same time as Fantozzi and Barelli, there is more than a sus-
picion, in the undersigned's opinion, as to the respondent's motives for the lay-
off, nevertheless, the undersigned concludes and finds that the respondent did not
lay off Milcezny on December 18, 1945, because of his concerted activities or
because of his membership in or activities on behalf of the Union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above.
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such of them as have been found to be unfair labor
practices tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent discriminated in regard to the hire and
tenure of employment of Raymond C. Shellenberger and Bert Davis. It will there-
fore be recommended that the respondent offer them immediate and full rein-
statement to their former or substantially equivalent positions 47 without preju-
dice to their seniority and other rights and privileges. It will be further recom-
mended that the respondent make them whole 40 for any loss of pay they may
96 Milcezny's letter refers to a letter of the respondent , dated laiiuary 14. No such
letter was offered in evidence.
41 In accordance with the Board ' s consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position wherever -
possible , but if such position is no longer in existence , then to a substantially equivalent
position ." See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico Branch, 65 N L. R. B. 827.
48 In the case of Shellenberger , it has been found that the respondent refused to employ
him on November 2, 1944 , by reason of the fact that it did not grant him a leave of absence.
Since Shellenberger did not return to the plant until about November 26 (the date until
which he probably would have been away if he had been granted the leave of absence), it
will be recommended that the respondent make him whole starting from that date.
RUSSELL ELECTRIC COMPANY 797
have suffered by reason of the respondent's discrimination against them by pay-
ment to them of sums of money equal to the amounts they would have earned as
wages from the dates of the discriminatory discharge, in the case of Davis, and of
the discriminatory refusal to hire, in the case of Shellenberger, to the dates of
the respondent's offers of reinstatement, less their net earnings" during said
periods.
It has been found that the respondent discriminatorily laid off Michael J.
Fantozzi and Mario M. Barelli. Since they refused the respondent's subsequent
offers of reemployment it will not be recommended that the respondent offer them
reinstatement. It will be recommended, however, that the respondent make
them whole from the dates of the discriminatory lay-offs to the dates of the
respondent's offers of reemployment, Jess their net earnings during said periods"
The scope of the respondent's illegal conduct discloses a purpose to defeat
self-organization among its employees, and an underlying attitude of opposition to
the purposes of the Act to protect the rights of the employees generally" Ac-
cordingly, it will be recommended that the respondent cease and desist from
in any manner interfering with the rights guaranteed in Section 7 of the Act.
Since the undersigned has found that the respondent did not refuse to hire
Raymond Shellenberger on June 28, 1945, because he had filed charges with the
Board, and that the respondent did not discriminatorily lay off Elmer Milcezny,
it will be recommended that the complaint be dismissed in these respects.
Upon the basis of the foregoing findings of fact and the entire record in the
case. the undersigned makes the following :
CONCLUSIONS OF LAW
1 United Electrical, Radio S. Machine `Yorkers of America, C. I. 0, is a labor
organization within the meaning of Section 2 (5) of the Act.
2 By discriminating in regard to the hire and tenure of employment of Ray-
mond C. Shellenberger, Bert Davis, Michael J. Fantozzi, and Mario M. Barelli,
thereby discouraging membership in the Union, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (3)
of the Act.
3 By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
:i The respondent has not engaged in unfair labor practices by the lay-off of
Elmer Milcezny.
6. The respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (4) of the Act by refusing to hire Raymond Shellenberger.
49 By net earnings " is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company, 8 N L R B 440 ?Monies received for work performed upon
Federal, State, county, municipal, or other work-relief projects shall be considered as
earnings See Republic Steel Co,porotion v. N. L R. B , 311 U S. 7.
40 See footnote 49, supra.
0 See May Department Stores Company v N L. R B., 326 U. S. 376
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Russell Electric Company, Chicago,
Illinois, its officers, agents, successors, and assigns, shall':
1 Cease and desist from.
(a) Discouraging membership in the United Electrical, Radio & Machine
Workers of America, C. 1 0, or any other labor organization of its employees, by
laying off, discharging, or refusing to reinstate any of its employees, and from
refusing to employ any member of that Union Or in any other n,umer discriminat-
ing in regard to their hire and tenure of employment of any term or condition
of employment,
(h) In any other manner interfering with, restraining, or coercing its enn-
ployees in the exercise of their right to self-organization, to foram labor organiza-
tions, to join or assist United Electrical, Radio & Machine Workers of America,
C 1. 0, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection .is guaranteed
in Section 7 of the Act
2 Take the following affirmative action which, the undersigned finds will
effectuate the policies of the Act,
(a) Offer to Raymond Shellenberger and Bert Davis immediate and full rein-
statement to their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges;
(b) Make whole Raymond Shellenberger, Bert Davis. Michael J F:uitozzi and
Mario M BarelU for any loss of pay they may have suffered by reason of the
respondent's discrimination against them by payment to them of suns of money
equal to the amounts they would normally have earned as wages from the dates
of the discrimination to the dates of the respondent's offers of reinstatement
less their net earnings during said periods;
(c) Post immediately at its plant at Chicago, Illinois, copies of the notice
attached to the Intermediate Report herein marked "Appendix C " Copies of
said notice, to be furnished by the Regional Director for the Thirteenth Region,
after being signed by the respondent's representative shall be posted by the
respondent immediately upon the receipt thereof, and maintained by it for sixty
(60) consecutive clays thereafter, in conspicuous places, including all places
N% here notices to employees are customarily posted Reasonable steps shall be
taken by the respondent to insure that said notices are not altered, defaced, or
covered by any other material,
(d) Notify the Regional Director for the Thirteenth Region it) writing. within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies stud Regional Di-
rector in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid
It,is further recommended that the allegations of the complaint that the re-
spondent discrnnmatorily discharged or laid off Elmer Milcezny and refused
to hire Raymond C Shellenbergei because he had filed charges with the Board,
he dismissed.
RUSSELL ELECTRIC COMPANY 799
As provided in Section 203.39 of the Rules and Regulations of the National-
Laboi Relations Board, Series 4. effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service of
the order transferring the case to the Board, pursuant to Section 203.38 of said
Rules and Regulations, file with the Board, Rochambeau Building, Washing-
ton 25, D C , an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record or
pioceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof ; and any
party or counsel for the Board may, within the same period, file an original and
four copies of a brief in support of the Intermediate Report. Immediately upon
the filing of such statement of exceptions and/or briefs, the party or counsel for
the Board filing the same shall serve a copy thereof upon each of the other parties
and shall file. a copy with the Regional Director Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203 65 As further provided in said Section 20339, should any party
desire permission to mugue orally before the Board, request therefor must be
made in writing to the Board within ten (10) days from the date of service of
the order transferring the case to the Board
JOHN H. EAnm,
Trial Examine?.
Dated October 17, 1945
APPENDIX A
I told Shellenberger in October that I could not give him an indefinite leave
He was an excellent winder, one of four with a top rating of A When he came
back, I was laying off winders, so L could not hire him back It wasn't 'till
several weeks later that 1 put in a requisition for help to Dlr. Glenn, Employ-
ment Dlgr., for eight Ariuatute winders-this was around the first of the year
when I requested eight, as experienced as he could hire. He's only been able to
supply about three of the eight-Betty Scaruzzo, rehired; Betty (new
hire for equalizing) ; Fox, newly hired, from the school. In other words, I still
have a requisition in for about five winders, experienced if possible.
I don't have or need night shift winders now.
A foreman more or less controls the number of people needed in the depart-
ment
This last requisition form was signed by Henry Dooling and by me. The Divi-
sion Head signs the requisition foriu, filled out by the foreman. The requisition
form is in effect until either the Employment Office supplies the men or we notify
them they are no longer needed.
If we get an experienced winder, we grab him. I would grab one now if I
could get one.
APPENDIX B
Bert Davis has worked under my supervision since he came here. He has
always been extremely hot-headed, which I overlooked because I like him and
knew lie was a go9d worker. He was about my third best maintenance man-third
to Zallenas and Rein on days
When Brown took over the department he told me he wanted to talk to each
of the men individually I told them to fill out an application that Brown wanted,
telling where they ii orked before I looked over Davis' application before lie
went in, and noticed how lie said he quit or was fired from all his previous jobs.
755420-48-vol 74-52
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I told him that if I saw an application like that, I wouldn't hire the man. I made
no remark to him about wearing-or not wearing-a union button when he went
in to see Brown A little later in the day Brown told me that Davis had come
in with a chip on his shoulder I later heard from the men that Davis had tried
to tell Brown off. When Brown called me in, he told ine to fill out the pink lay-
off slip for Davis.
The day all this happened Davis was in a bad mood all day. He was tempera-
mental and hot and huffy.
His discharge was primarily the result of Davis' insubordination. Brown
asked me whether Davis was frequently hot-headed like that and I told him that
Davis and I got along well except that we had words once in a while
One time before I recall that Bert got angry and quit-then he came back.
He got a vacation that year that he shouldn't have gotten. Why, I don't know.
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist United Electrical, Radio & Machine Workers
of America, C I. 0, or any other labor organization, 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.
We will offer to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the discrimi-
nation.
Raymond C. Shellenberger
Bert Davis
We will make whole the employees named below for any loss of pay suf-
fered as a result of the discrimination.
Michael J. Fantozzi
Mario M Barelli
All our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
RIISSELL ELECTRIC COMPANY,
Employer.
Dated ---------------- By ---------------------- '----------------------
(Representative^ (Title)
NOTE. Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in ac-
cordance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.