Spalek Engineering Co.

National Labor Relations Board - Board Decisions

Dec 12, 1942

45 N.L.R.B. 1272 (N.L.R.B. 1942)

In' : the `Matter ' of'•ADOLPH - SPALEK AND"WILLIAM J. ZRENOHIK; CO-
PARTNERS, DOING BUSINESS AS SPALEK ENGINEERING COMPANY and
SOCIETY OF DESIGNING ENGINEERS, LOCAL 201, FEDERATION OF
ARCHITECTS, ENGINEERS, CHEMISTS AND TECHNICIANS, CIO.
Case No. C-2300.Decided December 12, 1942
Jurisdiction : engineering services industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union conditions of employment
consisting-of: (1) application forms providing a space in which prospective
employees were asked to indicate their union, affiliation and (2) requirement
that apprentices as a condition of employment execute an affidavit stating
that their wage rate was to be determined by their employers-and imposing
a penalty in the event of default ; anti-union statements by one of employers ;
anti-union conduct of employers including destruction of-anion literature in
presence of an employee, impeding the lawful distribution of union literature
in front of their premises, and procuring the arrest and detention of the in-
dividuals distributing the literature.
Discrimination: employee was discharged because of union membership and ac-
tivity and his refusal to conform to the anti-union pattern of his employers,
and not,for the reasons asserted as justification for the discharge.
Remedial Orders : discontinuance of requirements that applicants for employ-
ment furnish information as to union affiliation ; discontinuance of affidavits
by apprentices requiring them to renounce, as a condition of employment,
the full benefit of their right to collective bargaining ; reinstatement' of dis-
criminatorily discharged employee with back pay.
Mr. Jerome H. Brooks and Mr. C. Thomas Downs, for the Board.
Darden and J rashear, by Mr. Frederick`'B. Darden, of -Detroit',
Mich., for the respondents.
Mr. Joseph Tuma, of Detroit, Mich., for the Union.
Mr. Harry H. Kuskin, of counsel to -the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
"Upon charges duly filed by Society- of Designing •Engineers,y Local
201; Federation of Architects, Engineers, Chemists and Technicians,
affiliated with the Congress of Industrial' Organizations, herein called
45 N. L. R. B., No. 176 ' .
1272
- "SPALEK ENGINEERING, COMPANY 1 273
the. Union, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Seventh Region (Detroit,
Michigan'), issued its complaint dated June 18, 1942, against Adolph
Spalek and William'J. Zrenchik, co-partners doing business as Spalek
Engineering Company, Detroit, Michigan, herein called the respond-
ents, alleging that the respondents had engaged in and were engaging
in unfair. labor practices affecting commerce, within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint` and notice of hearing thereon were duly served upon
the respondents and the Union. . , t ,
With respect to the unfair labor practices, the complaint alleged in
substance: (1) that the respondents discharged Thomas Smock on or
about March 15, 1942, and thereafter refused to reinstate him, be-
cause he had joined and assisted the Union and engaged in concerted
activities; '(2) that, since September 1941, the respondents and their
agents have impeded the lawful distribution of union literature, have
destroyed union literature in the presence of their employees, have
interrogated employees as to their membership in the Union, have
threatened employees with closing the plant or other reprisals if the
organizational activities of the Union continued,, and have required
the execution by certain of their employees of an instrument, designed
to waive the employees' right-to the full benefit of collective bargain-
ing; and (3) that the respondents, by the foregoing acts, interfered
with, restrained, and coerced their employees in the exercise of the
rights 'guaranteed in Section 7 of the Act.
The'respondents filed an answer to the complaint on July 13, 1942,
denying that they had engaged in any unfair labor practices;' aver,
ring that, the alleged,unfair labor, practices ,did ,not, in any event, af-
fect commerce within the meaning of the Act, and alleging affirma-
tively that Smock had been discharged for cause.
Pursuant to notice, a hearing, was held, at Detroit, Michigan, on
July 16 and 17, 1942, before Gustaf B. Erickson, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondents were represented by counsel, aril the Union by its rep-
resentative; all participated in the hearinig. 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 com-
mencement of the hearing, the Trial Examiner reserved ruling' on
the respondent's'motion to'dismissthe complaint filed*oh July 13,11942,
and 'thereafter ' denied' it iii his Intermediate` Report. ' 'At the 'close
of the Hearing; the motion 'of'counsel for th'e Board to conform the
pl'eadiiigs, toIthe proof' in such''rnatters ^as'iiaines, 'spelling,' and 'dates
i)'t: - ^• ^' ",', •, , 'itt'I ' fin!„t ' ... ., 4^tt ,, .f'l+'
t •^ i .t t t- t' .4 .^'l! ,'} - ,il } i'.(t't,
1274 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD
was granted-without objection. During the course of the hearing,
the Trial Examiner made rulings on other motions and on objections
to the admission of evidence. The Board has reviewed tlie-rulings
of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed. The parties were
afforded, but declined, an opportunity to argue orally before the
Trial Examiner. Counsel for the respondents submitted a brief to the
Trial Examiner on August 3, 1942.
Thereafter, the Trial Examiner issued his-Intermediate Report-dated
August 20,1942, copies of which were duly served upon the respondents
and the Union. He found that the respondents had engaged in and
were engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and Section 2 (6) and (7) of the Act, and
recommended that the respondents cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
As to employee Smock, the Trial Examiner recommended dismissal
of the complaint. On September 14, 1942, the-Union filed its excep-
tions to the Intermediate Report, and on September 24, 1942, the
respondents filed their exceptions and a supporting brief.
Thereafter, pursuant to notice duly served on the parties, a hearing
was held before the Board in Washington, D. C., on' October 13, 1942,
for the purpose of oral argument. The Union appeared by its rep-
resentative and participated in the hearing. The respondents did not
appear. -
The Board has considered the exceptions and the brief submitted by
the respondents and the exceptions submitted by the Union and, insofar
as the exceptions are inconsistent with the findings of fact, conclusions
of law, and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS or FACT
1. THE BUSINESS OF THE RESPONDENTS
Adolph Spalek and William J. Zrenchik conduct a co-partnership in
Detroit, Michigan, under the firm name and style of Spalek Engineer-
ing Company. They are engaged under contracts on a cost-plus basis
by Chrysler Corporation, Ford Motor Company, Packard Motor Car
Company, and similar concerns to design tools, jigs, and fixtures essen-
tial in the production of bombers, bofors, guns, and trucks for -the
United States and British Governments. During the fiscal year end-
ing July 1, 1942, the respondents received more than $1,000,000 for
their engineering- services. In that period, the manufacturing con-
cerns served by the respondents produced for the United States Gov-
ernment and Great Britain military equipment and munitions valued
at more-than $50,000,000. Chrysler Corporation and Ford Motor Car
- •SPALEK ENGINEERING COMPANY 1275
Company produced war materials during that period valued in excess
of $25,000,000 and $15,000,000, respectively, for which the respondents
furnished 20 percent of the total designing required. The respondents'
services were employed in the same capacity and to a substantial extent
by Packard Motor Car Company, McCord Radiator Company, Munroe
Auto Equipment Company, Star Tool and Die Company, and R. C. A.
Manufacturing Company. At times, the respondents have assigned
employees to the designing rooms of their customers, where they have
performed the work agreed upon. All the respondents' services were
performed and, with the exception of two designs, were delivered in
Detroit, Michigan.
During the same period, the respondents purchased at retail stores
in Detroit, Michigan, blueprint paper, drafting tables, pencils, and
kindred supplies valued at $35,021.02, of which more than 90 percent
represents materials which were produced outside, and transported to,
the State of Michigan. The respondents employ more than 100 drafts-
men, architects, and apprentices. ,
H. THE ORGANIZATION INVOLVED
Society of Designing Engineers, Local 201, Federation of Architects,
Engineers, Chemists and Technicians, is a labor organization, affili-
ated with the Congress of Industrial Organizations. It admits to
membership employees of the respondents.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Anti-union conditions of employment
For the past 6 years, the application forms for employment used by
the respondents have provided a space in which prospective employees
have been asked to indicate their union affiliation. The' respondents
urge that the requirement in the applications has no significance,
,since such applications are in standard form, purchaseable from any
stationer, and had been used by the respondents long before the com-
mencement of any union activity. We regard the fact that prospec-
tive employees have been confronted with the question of their union
affiliation upon applying for employment'clearly interfering with,
restraining, and coercing the employees in the exercise of 'the rights
guaranteed under the Act.'
Since June 1, 1941, the respondents have also required that appren-
tices, as a condition of employment, execute an affidavit stating that
1 See Entwistle Manufacturing Company and Textile Workers Union of America, 23
N. L. R. B. 1058.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the amount of their pay is . to be determined by the respondents and
that . their .tenure of employment , is to be . for not less than a year, a
penalty of $500 being imposed by the respondents in the event of a
default in the obligations , thus assumed by the apprentices . The re-
spondents argue that the penalty- clause as to apprentices has never
been enforced . Whether or not the penalty clause has been enforced
is not material . By compelling apprentices upon pain of serious
penalty to be bound by the respondent 's unilateral determination of
their wage rate, the respondent has limited the right of these employ-
ees to bargain collectively with respect to this important condition of
their employment and has thereby interfered with the right to self-
organization and collective bargaining guaranteed in the. Act.
2. Opposition to the Union '
Early in February 1942, the executive board of the Union started a
campaign to organize the employees of; drafting and designing job
shops in the City of Detroit, including the respondents ' employees. In
furtherance of the campaign , a meeting of the Union was scheduled for
the evening of February 24, 1942. At about 9 o'clock on the evening
of February 23, W.-Dudenhoefer , office manager of the Union , stationed
two Postal, Telegraph messenger boys at one of the entrances to the
respondents ' premises for the purpose of distributing to the respond-
ents' employees literature advertising the scheduled meeting. Several
employees , including . Thomas Smock , gathered around the messengers.
In a short while, William Zrenchik , followed by Adolph Spalek, the
respondents herein, appeared on the scene . Zrenchik testified that he
asked one of the messenger boys to let him see what he was distribut-
ing, and that the messenger .,gaye him.all the . union literature he had.
About this time, Smock left., After Spalek demanded to know what
Dudenhoefer and the messenger boys were doing, Dudenhoefer
answered ' that they were carrying on - legitimate union business.
Thereupon Spalek stated that "we'll find out whether you can get
away with this sort of thing." When Dudenhoefer and the messenger ,
boys started to leave, they were forcibly detained by Spalek in the
presence of employees of the respondents ; and Spalek demanded that
they await the, arrival of the police., At this point, Dudenhoefer told
Spalek that he, was being , very foolish and that if the respondents'
employees wanted an ,- organization they would organize regardless. of
what-he , did,,but .Spalek,rep 'lied--that he .had spoken ,to all his employees
and that none of them wanted a union. 'When the police arrived,
according ,to the uncontradicted : and,,credible testimony of Duden-
hoefer, Spalek showed a copy of the notice of - the union meeting to^one
of the police officers, complaining that the messenger --boys and
SPALEK =ENGINEEiRING• COMPANY ; . - 1277
Dudenhoefer "were creating a disturbance, making trouble, and
possibly to cause a strike," and the officer remarked that ".. this
seems to be a labor dispute or a labor problem here." Dudenhoefer
and the two messenger boys were taken in the police scout' car to a
police station in Detroit; Zrenchik, Spalek, and employee- Swanson
followed in another automobile. At the police station, Spalek com-
plained that Dudenhoefer and the messenger boys had violated
certain ordinances of the municipality; whereupon Dudenhoefer and
the boys were locked up by the police but they were released one-half
hour later.
The respondents contend that the work being performed by them
is of a highly secret nature and that it is imperative that the work
and premises be completely free from saboteurs. Zrenchik and Spalek
testified that they did not know who the persons involved in the dis-
tribution of the literature were, and that they consequently feared
they might be saboteurs or spies.- Therefore, they explained, they
summoned the police and had the persons detained. We are unable to
regard this reason as having any validity, for the circumstances sur-
rounding the distribution of the union literature- belie, such a conten-
tion. Although Zrenchik and Spalek did not know Dudenhoefer and
the two boys by name, there is no credible basis for the assertion that
they feared they might be spies or saboteurs. ' Spalek testified that he
may have seen Dudenhoefer once or twice before, and both Zrenchik
and Spalek identified the two boys as messengers. In addition,
'Zrenchik and Spalek testified that they saw several of their employees
standing in the lobby at the time and Zrenchik added that there was
a "lot of excitement, hollering and laughing." It is likewise clear
that the respondents were aware of the Union's organizational activity.
Although Zrenchik denied that he had read the union literature before
he called the police; it would appear that he, as well as Spalek, were
well apprised of the facts before the police arrived. Dudendoefer tes-
tified that he reminded Spalek, in the presence of Zrenchik, that both
Spalek and Zrenchik had been members of the same union then
engaged in distributing the literature. It is further apparent that
Spalek was on notice of the Union's activity, for he answered Duden-
hoefer's argument that he was carrying on legitimate union business
by insisting that "we'll find out whether you can get away with this
sort of thing," and he thereafter complained to the police that the
messenger boys and Dudenhoefer "were creating a disturbance, mak-
ing trouble, and possibly to cause a strike." We find that, by their acts
on the, evening of February 23, 1942, the respondents impeded the
lawful distribution of union literature td their employees and procured
the arrest and detention of individuals distributing such literature in
an effort to interfere with the Union's organization efforts.
1278 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
On the following morning, February 24, according to the testimony
of "Smock, Spalek warned Smock, while at work, that if the Union
organized the shop he would "close the place down and farm his work
out to other job shops." Although Spalek testified that he never
threatened Smock or any of his employees or intimidated them in any
way against joining a union or freely organizing for any labor pur-
poses, he did not specifically deny the conversation with Smock. We
credit the testimony of Smock, as did the Trial Examiner, and find
that Spalek made the remarks thus attributed to him by Smock.
The respondents' attempts to interfere with the organizational ac-
tivities of its employees is further apparent from the testimony of
employee Rulapaugh. He testified without contradiction that the
following incident occurred on March 20 while he was at work at his
drafting board : Spalek stopped at his board and inquired as to how
things were progressing. Upon noticing two pieces of union litera-
ture in an open drawer in the back, of Rulapaugh's drafting board,
Spalek picked them up, looked at them, tore them into bits, and threw
them into the waste basket. Rulapaugh was wearing a union button
in his lapel at the time, and Spalek asked him if he belonged to the
Union. When, Rulapaugh replied"in the affirmative, Spalek told him
that the Union had made "quite a bit of trouble" for him and sug-
gested, that Rulapaugh join an organization from which he could
learn something and "get some value." Rulapaugh stated that he
would like to belong to such an organization, and Spalek asked him
whether he had ever heard of the American Society of Tool Engineers,
which is not a labor organization. When Rulapaugh told him that
he had, Spalek suggested that he speak to Harry Fowlie, the respond-
ents' chief engineer and Rulapaugh's supervisor, about joining that
organization. At the same time, Spalek inquired whether he was
very active in the Union.
The respondents, in explanation of Spalek's action, contend that
it was a rule of the shop that only official shop papers could be kept
in or on the drawing boards. Zrenchik testified that supervisory
employees were instructed to remove any foreign papers from drawing
boards and desks and to throw them into the waste basket, and that
employees could retrieve such papers thereafter. Zrenchik testified
further that although he may, at times, have torn'up union literature
or other papers, he did not make a practice of doing so. Although
Spalek testified, he was not questioned about this incident. We find,
in the light of the remarks made by Spalek at the time he destroyed the
union literature and in view of the unusual action of tearing up the
literature instead of throwing it away, that Spalek's conduct was'in-
tended to convey to Rulapaugh the respondents' opposition to the
Union. We find further that, by his statements to Rulapaugh, Spalek
attempted to induce Rulapaugh to abandon the Union.
SPALEK ENGINEERING COMPANY 1279
We find that, by confronting prospective employees with the ques-
tion of their union affiliation, by requiring apprentices to forego their
right to the full benefit of collective bargaining, by impeding the law-
ful distribution of union literature and procuring the arrest and
detention of the individuals distributing the literature, by the destruc-
tion of union literature in the presence of an employee, and by their
other conduct evidencing opposition to the Union and compelling
;withdrawal. therefrom, the respondents have interfered with, re-
strained, and coerced their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
B. Discrimination with regard to the hire and tenure of
employment of Thomas Smock
Smock started to work for the respondents as a checker on October
13, 1941. His job was to check drawings designed by other employees
to see that the parts designed were interrelated and correctly dimen-
sioned so that they, would fit and function properly in the machine to
which they had been assigned. Smock was the senior, of the three
checkers in the department in which he worked. In the course of
checking drawings, the checker usually consulted with the employees
who had designed and detailed them. The head of the department,
who was called the leader, allotted the jobs in the drafting room and
worked with the checkers. By March 15, 1942, the date of his dis-
charbe, Smock had received two individual increases in pay.
Smock joined the Union in 1935 and became a member of the execu-
tive board in 1939. When the Union began its campaign to organize
the employees of drafting and designing job shops in Detroit, in
February 1942, Smock, who was still a member of the executive board,
was made a steward of the respondents' plant and charged with the
responsibility of organizing the respondents' employees. At that
time, Smock began to wear a union button at the plant. He was active
in distributing union cards, talking "to employees about organizational
benefits, enrolling members, and collecting dues and initiation, fees.
MMThen the union literature was being distributed on February 23,
Smock was present and was seen by Zrenchik. '
On the morning of February 24, as found above, Spalek warned
Smock that if the Union organized the shop, "he would close the place
down and farm his work out to other job shops." During the same
conversation, according to the testimony of Smock, wages were dis-
cussed and Spalek further told Smock that he had received a report
from certain government agents on Smock's past "radical" labor
activities and intimated that he would see that Smock was unable to
receive' employment elsewhere for the duration of the war. Spalek
1280 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
did not specifically deny these statements , although he testified that he
never threatened Smock or intimidated him in any way to deter him
from joining or organizing a union. We agree with the Trial Exam-
iner and find that Spalek made the remarks attributed to him by
Smock.
Smock testified that, a day or two after the union meeting of Feb-
ruary 24, Spalek again engaged him in a conversation at his draft-
ing board and told him that Spalek knew the name of -every employee
who had been present at the union meeting and that "he had had a
secret agent up there ." Spalek did not deny this conversation specif-
ically, and we credit the testimony of Smock, as did the Trial
Examiner. -
Smock testified without contradiction that, shortly after the first
organizational meeting of the Union , Chief Engineer Fowlie placed
him in charge of checking in his department , and told him "very
carefully" not to inform Spalek of the promotion . Smock testified
further that, early in March , Spalek told employee Vidigian and
Smock that on the following Monday, there would be two or three
Army officers across the hall from where Vidigian and Smock were
working and that these officers "would prevent any labor organizational
activities within his organization ." Although Spalek did not specif-
ically deny Smock's testimony in this respect , he testified that on one
occasion in the course of a conversation with Smock he was comparing
his employees with soldiers in the Army and, stated , "how you like to
have your soldiers watch you fellows to work here." We credit the
testimony of Smock, as did the Trial Examiner.
However, despite the respondents ' open opposition , Smock con-
tinued to be active in the Union and to carry on his duties as steward in
charge of the organizational drive at the respondents ' plant.
On Sunday , March 15, 1942, Smock was summarily discharged by
Zrenchik . According to the uncontradicted testimony of Smock, he
was'at work at his drafting board after returning from lunch, when
Zrenchik came to him and told him that the respondents had "a very
important job" which they wanted him to check and that it would be
necessary to transfer him from the department in which he was work-
ing on the second floor to a room on the first floor . Smock gathered
up his effects and, with the help of a fellow employee who had been as-
signed by Zrenchik to help him, moved to his neiv quarters and began
to work. Smock testified further, without contradiction, that about
3 p. m. on that day Zrenchik came to him and told him that the respond-
ents were compelled to let him go, and that in response to his question
as to why he was being discharged, Zrenchik stated, We have just had
a report from the Ford organization that your work is very inefficient."
Smock received his check, which was ready for him, and left.
SPALEK ENGINEERING COMPANY 1281
The respondents contend, in effect, in their answer that the follow-
ing reasons combined to bring about the discharge of Smock:, (1) He
remained away from work because of sickness in the fall of 1911
longer than was necessary; (2) he violated the rules of the respond-
ents in going from one department to another; (3) he was too talka-
tive,;.and (4) he was inefficient.
At the hearing, the respondents made no claim that Smock was
away from work because he was either unable or unwilling to dis=
charge properly the duties for which he was employed. In addition,
Zrenchik testified that when Smock returned to work after his illness,
his record of illness was not counted against him. In any event,
the' respondents' contention would seem to be without validity in
view of the fact that Smock received a merit raise in January 1942,
shortly after his return to work. We find the contention to be with-
out merit, as did the Trial Examiner.
In support of the respondents' second allegation, several of the
employees and Spalek and Zrenchik testified that-Smock talked while
at-work. There was considerable testimony also that much of this
talk concerned the Union. Smock admitted that there might have
been occasions when he discussed organizational work "for a second
or two or a minute or two;" and also that he night, during working
hours, have discussed a book which he had written, "but very inci-
dentally." Although it appears from the record that the respond-
ents' objection to talking had been announced 'repeatedly to their
employees, it is also apparent that the employees generally talked
during working hours on matters not related to the work. Leader
Federico Thibault testified, without contradiction, that more than
10 times a group of employees had talked about things other than
business, and- employee William Wichman testified that the discussion
of personal matters by employees during working hours occurred
"frequently." There is no evidence in the record that Smock had
ever been warned that he would be discharged unless he ceased talk-
ing. In addition, Thibault testified that no one to his knowledge
had ever been discharged for talking. In their brief the respond-
ents urge that the topic of Smock's discussion was of no concern to
them; that, although, in fact, the principal topic was the Union, the
essential violation was his talkativeness. It is inconceivable, how-
ever, that the respondents would have discharged Smock for being
talkative when only a few hours before they had transferred him to
a more responsible position. Under the circumstances, we find that
it was ,not'Smock's talkativeness but his union activity which con-
cerned ' the respondents.
As a further explanation of the discharge, Leader Louis Schweit-
zer and Spalek testified that Smock violated a working rule in going
493508-43-vol. 45-31 1.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from one department to another , and Thibault testified that Smock
committed an infraction of another rule by coming into the drafting
room from the checking room and talking to designers without per-
mission. Schweitzer testified that the respondents had signs in the
plant announcing the rule against going from one department to
another. Schweitzer testified further that, although Smock came
into his department two or three times, he said nothing,,about ,it to
Smock, but that when his attention was called to the fact that Smock
was talking to the employees "about unionizing about wanting the
boys to join the union ," he told Smock that he would not tolerate
such conversation during working hours and admonished him for,
being there . Spalek testified that he caught Smock "quite a few
times" going into other departments than his own and talking to
employees there . In connection with the further alleged violation,
Leader Thibault testified that Smock,. who worked in his depart-
ment, had talked to designers in that department without Thibault's
permission . It is clear that the rule , if it in fact existed, had been
violated with impunity by other employees. Thus Thibault ad-
mitted that Vidigian , a checker , had talked to designers without per-
mission and it does not appear that Vidigian was reprimanded or
penalized . Leader Frederick Firmin would not state categorically
that employees always follow the correct procedure of getting per-
mission from the leader to talk to the designer , and Wichman, an
apprentice designer , testified that it is advisable , not compulsory,
to see the leader before talk ng to the checker. Smock was not
questioned about whether he had broken these rules at any time.
The record is barren of any testimony that Smock was ever warned
that he would be discharged unless such conduct ceased, nor was
his violation of the rules mentioned at the time of his discharge by
Zrenchik . As Schweitzer's testimony implies, the respondents did
nothing about these alleged violations by Smock until they learned
that the topic of discussion was the Union.
In support of their contention that Smock was also discharged
for inefficiency the respondents rely, in chief , on two complaints
allegedly received from the Chrysler Corporation and the Ford
Motor Company , two of the respondents ' customers , to the effect
that Smock 's work was inefficient . As to the complaint by Chrysler;
employee James Wilson, a follow-up man, testified that lie was re-
quested "last fall" by the Chrysler Highland Park plant , through
one Miller who kept a list of designers and checkers on jobs that
"backfired ," to keep Smock , "one of three other checkers ," off Chrys
ler work. Although Wilson made it clear that the verbal coi ipla nt
from Chrysler occurred "last fall," Zrenchik testified that there is
often a reluctance on the .part of follow-up men to relay such infor-
,SPALEK ENGINEERING COMPANY 1283
mation, that the complaint came to his attention " in due course"
in the latter part of February 1942, and that Smock was kept off
Chrysler work as a result . However, Zrenchik testified that the
complaint which precipitated Smock's discharge was the one received
from the Ford Motor Company in the middle of March 1942, which
he characterized, as very serious. -Spalek and Thibault , who were
interrogated on Smock's inefficiency , also testified as to a Ford com-
plaint about Smock's work. Spalek stated that he had been shown
one of Smock 's drawings on Ford work in January , February, or
March, 1942 ; and Thibault referred to two jobs in January 1942
for the Ford Motor Company , checked by employee Gray, a lay-out
man, and rechecked by Smock, on which Smock committed errors and
for. which he [Thibault] caught "plenty of hell. " Thibault made
no mention , however, of any complaint by Ford during March 1942;
nor did he speak of any complaint by Chrysler. Likewise Chief
Engineer Fowlie, who was in charge of all designers and checkers,
when questioned about Smock 's work, criticized him for making
considerable changes in drawings , for not being a first-class checker,
for lacking a great deal of judgment, but made no reference to any
comnphiint by either Ford or .Chrysler. Fowlie, despite his criticism
.of Smock, admitted , however , thafhe gave responsible jobs to Smock
to check, and manifested his high regard for him by designating
Smock as chief checker in his department in the latter part of Feb-
ruary. Although Spalek testified that Fowlie complained about
Smock's work to him and wanted to know why Spalek did not dis-
charge Smock , that testimony stands refuted by Fowlie , for the
latter stated that he was stirred up about Smock , yet he did nothing
about it, and "never carried [his] troubles to Spalek in any form."
Smock denied generally that he had ever received any complaints
about his work, although he had spoken about his work in 1942 to
Fowlie, Wilson, and one or two other contact men.
The respondents ' contention that -they discharged Smock for in-
efficiency is inconsistent with the evidence . It is our opinion that the
Chrysler complaint came to the respondents ' attention considerably
before Smock 's discharge , for it is doubtful that Wilson would have
delayed several months in telling the respondents about a complaint
from their largest- customer if the complaint was considered serious.
In any event , very little or no attention was paid to that complaint,
for it is the undisputed testimony of Smock that on March 15 Zren-
chik assigned him to what Zrenchik termed a "very important job."
Of further significance are the facts that neither Fowlie nor Thibault
made mention of such a complaint when questioned about Smock's
inefficiency ; that Fowlie designated Smock as chief ' checker in' his
department in the latter part of February ; that Smock was never
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
informed of the Chrysler complaint; and that there is no showing
that the others against whom a similar complaint was made were in
any way penalized. Moreover, Thibault and Zrenchik testified that a
pertain amount of complaints or "kick backs" are in order,on the
work being done at the plant.
The record on the Ford complaint is further proof of such inconsist-
ency. While the evidence on the Chrysler complaint was somewhat
detailed, the testimony as to the Ford complaint is vague in many
respects . There is no evidence in the record on the exact nature of
the "report" of the Ford complaint, and it is not clear whether the
complaint was oral or written. ' Zrenchik's testimony, in this respect,
was merely that "several jobs bounced back with Smock's signature,
and, of course, that meant we had to fix them up." Moreover, there
is disagreement among the respondents' witnesses as to when the com-
plaint was made. Furthermore it does not appear that anyone else
whose work was involved was discharged on account of this com-
plaint, or that Fowlie, who was charged with "seeing that the designs
get out right to the customers" was criticized in any way for allowing
the faulty work to go to this customer. Indeed, the facts about the
alleged complaint of March 15 appear not to have been made known
to Thibault and Fowlie. The record is likewise barren of any testi-
mony that Smock was warned that he would be discharged upon
receipt of any more complaints about his work. It is to be noted also'
that, when Zrenchik discharged Smock, he stated that "we have just
had a report from the Ford organization that your work is very
inefficient ." It would appear, under the circumstances, that hardly
enough time' had elapsed from the receipt of the complaint to allow
for a careful investigation. We are consequently not convinced that
the Ford complaint was in fact'made, or that, if it was made, it con-
stituted the'basis'for Smock's discharge.
In our opinion the true reason for Smock's discharge, about 3
weeks after the commencement of the Union's organizational drive,
is to be found in his union activities. The respondents' opposition
toward the self-organization of their employees was revealed by the
requirements in the application forms for employment, by the form
of the affidavits obtained from apprentices prior to the commence-
ment of work, by the interference with the distribution of union
literature at the start of the organizational drive, and by the anti-
union statements and conduct of the respondents. In fact, the re-
spondent's hostility toward Smock's aggressive union' activity was
made strikingly clear when Fowlie urged Smock not to tell Spalek
about his promotion by Fowlie to the position of chief checker in
his department. Smock, however, chose to disregard the warnings
implicit in the statements and conduct of the respondents' and in the
SPALEK ENGINEERING COMPANY 1285
remarks of Fowlie. He was present in front of the plant when the
union literature was distributed, acted as shop steward in charge of
the organizational drive and as executive board member of the Union,
talked considerably to employees at the plant about the.Union, and
persisted in his union activities until the time of his discharge. On
all the facts, we find, that the respondents' contention that Smock
was discharged for cause is not borne out by the record and that the
alleged Ford complaint was'a pretext seized upon by the respondents
for discharging Smock and thus ridding themselves of the Union's
steward and of an employee who had demonstrated his refusal to
conform to the anti-union pattern of his employers.2
We find that, by discharging Thomas Smock on March 15, 1942,
the respondents discriminated in regard to his hire and tenure of
employment, thereby discouraging membership in the Union and
interfering with, restraining, and coercing their employees in the
exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondents set forth in Section
III,,above, occurring in connection with the operations .of the re-
spondents described in Section I above, have 'a close, intimate, and
substantial relation to trade, traffic, and commerce among, the sev-
eral States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondents have engaged in unfair labor
practices, we shall order them to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act.
We have found that the respondents unlawfully required appli-
cants for employment to give information as to their union affiliation
and required apprentices, as a condition, of employment, to renounce
the full benefit of their right to collective bargaining. We shall, con-
sequently, order the respondents to cease and desist from- such prac-
tices. We shall also order the respondents to inform personally, in
writing, each of their employees who completed such application card
or executed such affidavit that the respondents will no longer require
applicants for employment to furnish information as to their union
2 The Trial Examiner's ruling that Smock was discharged for cause was based on the
technicality that the record did not foreclose the possibility that the Ford complaint was
actually received and thereby failed to eliminate the further possibility that the respond-
ents actually had just cause to discharge Smock.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affiliation, and that they will no longer solicit, enter into, continue,
enforce or attempt to enforce such affidavits.
We have found that the respondents discriminated in regard to the
hire and tenure of employment of Thomas Smock because of his union
membership and activity. To effectuate the policies of the Act, we'
shall order the respondents to offer him full and immediate reinstate-
ment to his former or substantially equivalent position, without preju-
dice to his, seniority and other -rights iand privileges. ^ Since the Trial
Examiner recommended that the complaint be dismissed as to Smock,
we shall require the respondents to make him whole by payment to him
of a sum of money equal to the amount he would normally have earned
as wages from the date of the discrimination against him to the date
of the receipt of the Intermediate',Report by the respondents, and from
the date of this Decision and Order until the offer of reinstatement, less
his net earnings 3 during these periods 4
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Society of Designing Engineers, Local 201, Federation of Archi-
tects, Engineers, Chemists and Technicians, affiliated with the Congress
of Industrial Organizations, is a labor organization, within the mean-
ing of Section 2 (5) of the Act.
• 2. By discriminating in regard to the hire and tenure of employment
of Thomas Smock and thereby discouraging membership in the Society
of Designing Engineers, Local 201, Federation of Architects, En-
gineers, Chemists and Technicians, affiliated with the Congress of
Industrial Organizations, the respondents have engaged in and are
engaging in unfair labor practices, within the meaning of Section 8 (3)
of the Act.
3. By interfering with, restraining, and coercing their employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondents have engaged in and are engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
8 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining Rork 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 Crosett Lumber Company and United Brotherhood of Carpenters and Joiners of
American, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It. B. 440 Monies
received for work performed upon Federal , State, county, municipal or other work-relief
projects shall be considered as earnings See Republic Steel Corporation v. N. L. R. B.
311 U S 7.
S See Matter of Dannen Grain & Millinq Company and Flour, Cereal , Feed Mill & Grain
Elevator Workers, Federal Union #21008, affiliated with the American Federation of
Labor, 30 N. L. It. B. 888; Matter,,of E. R. Haffelfinger Company, Inc. and United Wall
Paper Crafts of North America, Local No. 6, 1 N. L. It. B. 760.
a
.SPAtEK ENGINEERING, COMPANY- 1287
4. The aforesaid unfair labor practices are unfair labor practices
'affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ents, Adolph Spalek and William J. Zrenchik, a co-partnership doing
business as Spalek Engineering Company, their agents, successors,
and assigns, shall :
1. ' Cease and desist from :
(a) Discouraging membership in Society of Designing Engineers,
Local 201, Federation of Architects, Engineers, Chemists and Tech-
nicians, affiliated with the Congress of Industrial Organizations, or
in any other labor organization of their employees, by discharging
any of =their employees or in any other manner discriminating in
regard to their-hire and tenure of employment or any term or condi-
tion of their employment;
(b) Giving effect to 'the provision in the affidavits of apprentices
that the respondents will regulate their wages, or to any extension,
renewal, modification, or supplement thereof, and any superseding
affidavit of similar character which may now be in force;
(c) • Requiring applicants for employment to furnish information
as to their union affiliation;
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. -Take the following affirmative action which the Board finds,
will effectuate the policies of the Act :
(a) Offer Thomas Smock immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges;
(b) Make whole Thomas Smock for any loss of pay he may have
suffered, by reason of the respondents' discrimination against him,
by payment to him of a sum of money equal to that which he would
normally have earned as wages during the periods from the date of
such discrimination to the date of the receipt of the Intermediate
Report by the respondents, and from the date of this Order to the
date of the offer of reinstatement, less his net earnings during such
periods,;',
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Personally inform in writing each of their employees who
have signed application cards containing information as to their
union affiliation that the respondents will no longer require applicants
for employment to disclose their union affiliation, and personally
inform each of their employees who have signed affidavits as appren-
tices that the respondents will no longer require their apprentices to
sign such instruments, or any similar instrument, and that they will
not enforce such instruments or operate under them;
(d) Post immediately in conspicuous places throughout their plant,
and maintain for a period of at least sixty ( 60) consecutive days
from the date of posting , notices to their employees stating (1) that
the respondents will not engage in the conduct from which they are
ordered to cease and desist in paragraphs 1 (a), (b), (c ), and (d) of
this Order ; ( 2) that the respondents will take the affirmative fiction
set out in paragraphs 2 (a), (b), and (c) of this Order; and (3)_
that the respondents ' employees are free to become or remain mem-
hers of Society of Designing Engineers , Local 201, Federation of
Architects , Engineers , Chemists and Technicians,, affiliated with the
Congress of Industrial Organizations , or any other , labor organiza-
tion, and that the respondents will not discriminate against , any
employee because of membership or activity in such organizations;
(e) Notify the Regional Director for the Seventh Region in writ-
ing, within ten (10 ) days of the date of this Order, what steps. the
respondents have taken to comply herewith.