The Austin Co.

National Labor Relations Board - Board Decisions

Aug 29, 1946

70 N.L.R.B. 851 (N.L.R.B. 1946)

In the Matter of THE AUSTIN COMPANY and INTERNATIONAL FEDERA-
TION OF TECHNICAL ENGINEERS', ARCHITECTS', AND DRAFTSMEN'S
UNION, No. 90-A, AFL
Case No. i3-C-2664.-Decided August 09, 1946
Mr. Robert Ackerberg, for the Board.
McKnight, McLaughlin & Dunn, by Messrs. Edward J. McLaughlin
and Harry L. Kinser, of Chicago, Ill., for the respondent.
Mr. Wilbur Millard, of Chicago, Ill., for the Union.
Miss Ruth E. Blie field, of counsel to the Board.
4f DECISION
AND
ORDER
On July 10, 1946, Trial Examiner Mortimer Riemer issued his
Intermediate Report in the above-entitled proceeding, finding that
the respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the respondent filed
exceptions to the Intermediate Report and a supporting brief. The
Board has reviewed the rulings made by the Trial Examiner at the
hearing 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.
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, The Austin Company, Chi-
cago, Illinois, and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Federation of Tech-
nical Engineers', Architects', and Draftsmen's Union No. 90-A, afli-
70 N. L. R. B., No. 63.
712344-47-vol. 70 55
851
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ated with the American Federation of Labor, or any other labor or-
ganization of its employees, by discharging or refusing to reinstate
any of its employees, or by discriminating in any other manner in
regard to their hire and tenure of employment, or any term or con-
dition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to form
labor organizations, to join or assist International Federation of
Technical Engineers', Architects', and Draftsmen's Union, No. 90-A,
affiliated with the American Federation of Labor, 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 -will
effectuate the policies of the Act':
(a) Offer to Arthur S. Brown immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges :
(b) Make whole Arthur S. Brown 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 that which he normally
would have earned as wages from the date of the discrimination against
him to the date of the offer of reinstatement, less his net earnings during
such period ;
(c) Post in conspicuous places throughout its district office in
Chicago, Illinois, copies of the notice attached hereto, marked "Ap-
pendix A." Copies of said notice; to be furnished by the Regional Di-
rector for the Thirteenth Region, shall, after being signed by the re-
spondent's representative, be posted immediately by the respondent
upon receipt thereof and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps shall be
taken by the respondent to insure that said notices are not altered, de-
faced, or covered by any other material;
(d) 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. I
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the respondent has discriminated
in regard to the hire and tenure of employment of Paul K. Hastings
on or about September 6, 1945.
MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the
above Decision and Order.
THE AUSTIN COMPANY
APPENDIX A
NOTICE TO ALL EMPLOYEES
853
Pursuant to a Decision and Order 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 employees in the exercise of their right to self-organ-
ization, to form labor organizations, to join or assist Inter-
national Federation of Technical Engineers ', Architects', and
Draftsmen's Union, No. 90-A, AFL, or any other labor organiza-
tion, 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 employee named below immediate
and full reinstatement to his former or substantially equivalent
position without prejudice to any seniority or other rights and
privileges previously enjoyed, and make him whole for any
loss of pay suffered as a result of the discrimination.
- Arthur S. Brown
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 member-
ship in or activity on behalf of any such labor organization.
THE AUSTIN COMPANY,
Employer.
Dated ------------------------- By -------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Robert Ackerberg, for the Board.
McKnight, McLaughlin & Dunn, by Messrs. Edward J McLaughlin and Harry
L. Kinser, of Chicago, Ill., for the respondent.
Mr. Wilbur Millard, of Chicago, Ill., for the Union
STATEMENT OF THE CASE
Upon an amended charge duly filed January 23, 1946, by International Feder-
ation of Technical Engineers ', Architects ', and Draftsmen 's Union, No. 90-A,
affiliated with the American Federation of Labor, herein called the Union, the
National Labor Relations Board, herein called the Board, by its Regional Direc-
tor for the Thirteenth Region (Chicago, Illinois), issued its complaint dated
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 10, 1946, against The Austin Company, Chicago, Illinois, herein called the
respondent, alleging that the respondent had engaged in and was engaging in
unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2
(6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint, notice of hearing, and amended charge were duly
served upon the respondent and the Union.
Concerning the unfair labor practices the complaint alleged in substance that
the respondent: (1) discharged Paul Hastings on or about September 6, 1945,
and Arthur S Brown on or about September 14, 1945. and thereafter refused to
reinstate them for the reason that each of them had joined and assisted the Union
and (2) discharged Arthur S. Brown on or about September 14, 1945, and there-
after refused to reinstate him for the reason that he distributed a petition among
the employees of the respondent's Chicago branch to change the hours of employ-
ment and engaged in concerted activities with other employees of the said branch.
In its answer filed May 21, 1946, the respondent denied that it was engaged in
interstate commerce within the meaning of the Act and denied the commission of
the unfair labor practices alleged. The answer admitted the discharge of the
employees but averred that the discharges were for good cause. b'or a further
defense, the answer averred that after the respondent had instituted a procedure
to change its hours of employment, Brown, without authority, distributed a
petition during working hours and that thereby, Brown interfered with and dis-
turbed the work of other employees, and that this activity of Brown was not a con-
certed activity within the meaning of Section 7 of the Act.
On May 27, 1946, counsel for the Board served a demand that the respondent's
answer be made more particular and definite concerning the causes for the dis-
charge of the employees named in the complaint. By telegraphic order dated May
29, 1946, the respondent was directed, pursuant to Article II, Section 15 of the
Rules and Regulations of the Board, to make the allegations of its answer more
particular and definite concerning the causes for discharge. Respondent complied
with the said order and filed its jjill of particulars dated June 4, 1946.
Pursuant to notice, a hearing was held.at Chicago, Illinois, do June 4 and 5,
before Mortimer Riemer, the undersigned Trial Examiner, duly designated by
the Chief Trial Examiner. The Board and the respondent were represented by
counsel, the Union by its representative, and all parties participated in the hearing.
A full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded the parties.
At the conclusion of the Board's case, counsel for the respondent moved to dis-
miss the complaint., The motion was denied. At the conclusion of the hearing,
counsel for the Board moved to conform the pleadings to the proof. There was
no objection to the motion and said motion is herein granted. Ruling was re-
served on the motion of counsel for the respondent to dismiss the complaint. This
motion is disposed of as hereinafter indicated. A date was fixed for the filing of
briefs, and thereafter counsel for the Board and the respondent submitted their
briefs.
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
The Austin Company is an Ohio corporation, with its principal corporate offices
in Cleveland, Ohio. The respondent is engaged in the business of designing and
constructing office and industrial buildings and structures throughout the United
THE AUSTIN COMPANY 855
States, Canada, and other countries. It maintains offices in Chicago, Illinois ;
Cleveland, Ohio ; Detroit, Michigan ; Houston, Texas ; Indianapolis, Indiana ; Los
Angeles, California ; New York, New York ; Oakland, California ; Philadelphia and
Pittsburgh, Pennsylvania ; Seattle, Washington ; and St. Louis, Missouri. In
addition, the respondent controls several wholly owned subsidiary corporations,
including The Austin Co, Ltd, Toronto, Canada; Austin Engineers, Inc., a Michi-
gan corporation ; and The Austin Securities Co., Ltd, a California corporation.
The instant proceeding is concerned only with the respondent's Chicago district
office.
The Austin method, for which the respondent is known, is a complete service
to the industrial world through which service, respondent analyzes industrial
problems, makes a survey and report, followed by preliminary engineering, archi-
tectural and construction drawings, followed finally by actual construction of
the office, industrial building, or other structure involved. On some projects
the respondent performs the designing and engineering services only and con-
struction work is done by others. In the course and conduct of this business, the
respondent causes large quantities of lay-outs, designs, plans, specifications, and
blueprints to be mailed and delivered to its clients in various States through the
United States, and purchases building materials and other materials in the
course and conduct of said business. From time to time respondent causes its
technical and supervisory employees to be transported from and through States
of the United States to other States and foreign countries. In 1942, respondent
received as gross income from all services in excess of $264,000,000, and in 1943
and 1944, the amounts received exceeded $164,000,000 and $48,000,000, respec-
tively. As of June 1945, respondent was engaged in work and had executed
contracts for work not yet in progress of a value exceeding $20,000,000.
The Chicago district office services projects in Michigan, Wisconsin, Minnesota,
Missouri, Oklahoma, Indiana, Kansas, Wyoming, Texas, and Louisiana. This
area changes from time to time depending on the needs of clients and instructions
from the head office. A typical project in the Chicago office proceeds in the
following fashion : one of the district salesmen or engineers will visit a client
to obtain necessary information or the client will request that the respondent
survey its operations to determine the proper design of a proposed structure.
After this has been accomplished, actual design working drawings are begun in
the Chicago office Before the plans are completed, the purchasing of building
materials is started by the Chicago office and actual construction in the field
on the job site is commenced. As the operations proceed, the plans are completed
and the Chicago office through its various departments, such as sales, estimating,
engineering, accounting, and expediting, maintain close check over the construc-
tion. Lay-outs and blueprints are completed in Chicago and sent to the job site.
The supervising field force is likewise sent from the Chicago office, and a job
superintendent is sent to the site. The superintendent hires local labor if
available. When labor is not available, it is imported from any place obtainable.
About 30 percent of the actual construction work on the job site is sublet to
sub-contractors who engage their own labor. Sub-contractors are at all times
responsible to respondent. Each project sets up an independent office on the job
where books and pay-roll data are kept. Banking requirements for the project
are performed locally.
The principal items used in any project include structural steel, cement, brick,
tile, steel sash, lumber, metal doors, paint, boilers, transformers, etc. Orders
for these materials are placed by the Chicago office from sources as close to the
site as possible for delivery on the job. A substantial amount of material that
goes into any project crosses one or more State lines. For example, a substantial
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
portion of the structural steel used by the respondent on projects under the
supervision of the Chicago district comes from Pennsylvania and Indiana. A
substantial portion of the cement is purchased by the Chicago office from dealers
in the local areas who in turn get it from producers in Indiana. The respondent
itself ,fabricates steel at Cleveland, Ohio, which product is then used by its
various branch offices in their operations throughout the United States.
In the course and conduct of the operations of the Chicago office, as outlined
above, the respondent did business in 1944 and 1945 as set forth in the table
below.
Item 1944 1945-fist halt
1. Value, design work___________________________ $226, 000 $184, 000
2. Value, design work on buildings to be constructed
outside Illinois_____________________________ 70, 000 36, 000
3. Amount of purchases_________________________ 1,293,000 341, 000
4. Amount of purchased materials shipped to Illi-
nois from places outside Illinois______________ 125, 000 40, 000
5. Value of construction work done in places' out-
side Illinois________________________________ 1,256,000 233, 000
Numbered among the clients of the Chicago office and for whom buildings have
been constructed are such leading American enterprises as the J. I. Case Com-
pany, Racine, Wisconsin; Missouri Pacific Lines, Sedalia, Missouri; Atchison,
Topeka & Santa Fe Railroad, Chicago, Illinois ; Pure Oil Company, Nederland,
Texas and Heath, Ohio ; Quaker Oats Company, Marion, Ohio ; Time Incorporated,
Chicago, Illinois, and United Airlines Inc, Chicago, Illinois; all of which oper-
ate on a nation-wide basis. The nature of the respondent's operations are such
that any delay in the engineering department of the Chicago office would inter-
fere with, if not stop,'actual construction in the field. From 1942 to date, the
respondent has employed between 800 and 1,000 engineers and designers. In
October 1945, the Chicago office employed 21 structural engineers, 9 electrical
engineers, and 21 mechanical engineers.'
The respondent denied that it was engaged in interstate commerce within the
meaning of the Act. The undersigned finds on the basis of the foregoing facts
that the respondent caused a substantial amount of lay-outs, blueprints, designs,
specifications, and personnel to be transported and delivered in interstate com-
merce, and that it has caused a substantial amount of materials and building
materials to be transported and delivered in interstate commerce to and through
States of the United States other than the-State of Illinois. It is also clear
that the Chicago office performs a vital service, preliminary to the manufacturing
process in some instances, and in aid of interstate transportation and dissemina-
tion of information in other instances. Its clients are directly and extensively
engaged in interstate commerce and a labor dispute limiting the respondent's
designing, drafting and engineering services would necessarily tend to curtail
and disrupt the interstate movement of its clients' products and services. The
undersigned finds that the respondent is engaged in commerce within the meaning
of the Act.'
1 The findings in the Section above are based upon the pleadings , the testimony of Charles
W. Payne; Jr., vice-president and district manager of the Chicago office, and stipulations
entered into between counsel for the Board and counsel for the respondent.
2 See Matter of Spalek Engineering Company, 45 N. L. R. B. 1272 ; Matter of Electrical
Testing Laboratories Inc., 65 N. L R. B. 1239.
THE AUSTIN COMPANY
11. THE ORGANIZATION INVOLVED
857
International Federation of Technical Engineers', Architects' and Draftsmen's
Union, No. 90-A, is a labor organization affiliated with the American Federation
of Labor, admitting to membership employees of the respondent. '
Ill. THE UNFAIR LABOR PRACTICES
There is no previous history of collective bargaining between the respondent
and its draftsmen and engineers. The respondent's engineering department is
divided into a structural division, architectural division, mechanical division and
electrical division. In September 1945,-there were between 60 and 70 employees in
the engineering department under the supervision of Arthur D. Engle, the dis-
trict engineer. The engineering department is confined to a single area in the
building occupied by the district office.
A matter requiring preliminary consideration for an understanding of the
two discharges, hereafter discussed, is the respondent's office procedure, particu-
larly what is known as the "squad system." Engineers and draftsmen in the
electrical division, in performing their work, have occasion to obtain information
or consult with engineers or draftsmen in other divisions who are working on
the same structure. When the need for consultation arises, the correct procedure
sought to be followed in the respondent's office, as well as generally observed in
engineering offices, is for the engineer or draftsman to first consult his squad
leader, who supervises the work of 5 or 6 engineers or draftsmen working under
him. If the squad leader cannot furnish the requested information it becomes
the duty of the squad leader to obtain the information either from the chief
draftsman, the squad leader, or the engineer or designer in the other division
concerned with the details of the plan. The information thus obtained is then
relayed to the electrical engineer who changes, modifies, or revises his design
in accordance with the information ° Engle testified that the squad system had
been common practice in the respondent's organization for 35 years and that all
graduates of engineering schools understand this system. The practice is not
enunciated by formal posted rule or proclamation, and in the case of the two
employees hereafter discussed, no specific announcement that this system was to
be followed and enforced was made at the time they were hired.
This procedure is followed in engineering offices to avoid duplication which
might result if an engineer, on every occasion that a problem arose, were to
proceed directly to obtain the information from an engineer in another division,
and to pin responsibility upon the squad leader in the event of mistakes. Tenney,
an electrical engineer called by the Board, and at the time of the hearing a squad
leader, testified that it was not necessary for an electrical draftsman to visit
other divisions and that the squad system was "generally understood." Tenney
testified further that electrical draftsmen obtain information directly only when
directed to do so by the squad leader, and he knew of no occasion when engineers
of other divisions would be consulted concerning the detail of their work, with-
out first obtaining the approval of the squad leader. Engle acknowledged how-
ever, that the system was not perfect in its operations and that "sometimes
a man would run back on his owns" to obtain information. Vice-President Payne
likewise acknowledged that engineers and draftsmen do wander from their draft-
s The word "respondent" where used hereafter refers only to the Chicago district office,
Chicago, Illinois.
I Findings based upon the testimony of Payne, Engle, Ernest B. Halas, and Robert B.
Tenney.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing boards and violate the practice and that the condition had not been "cor-
rected . . . entirely." Payne thus described the rule : "We prefer and re-
quest that the men do not leave their desks; that they are attentive to their
work, and that they do not attempt to obstruct the operations or prevent others
from working." For enforcement of the rule, Payne relies upon Engle. The
undersigned concludes and finds, upon the basis of the foregoing, that it was the
rule in the respondent's office for engineers and draftsmen in need of informa-
tion concerning the detail of their work to first consult their squad leader ; that
this rule, although an accepted engineering practice, was not published or posted;
that the rule was not perfect in its operations ; that it was honored in the breach
as well as in the observance; and that engineers and draftsmen did wander
from one division into another, by-passing their squad leaders, in order to obtain
information.
The discharge of Paul• K. Hastings
Hastings, an electrical draftsman, was hired by Engle on May 7, 1945.
Hastings' duties were to design electrical installations for buildings and to
place on paper the designs which might thereafter be printed for use on con-
struction. At the time that Hastings was hired he received no instructions or
directions from Engle concerning his work or the respondent's practices and pro-
cedures. Hastings worked under squad leaders Ernest G. Ross and Karl H.
Schattke. -
Hastings signed an application for membership in the Union on or about
August 23, 1945, and from that date until the date of his discharge on Septem-
ber 6, 1945, he spoke to 9 employees including Arthur` S. Brown, the other dis-
chargee, on and after company time concerning the working conditions in the
engineering department and the advantages of joining the Union. Hastings
and Brown compiled a list of the employees they had spoken to about the
Union. Hastings testified that every day need arose for him to consult employees
in the structural, 'mechanical, architectural, and plumbing and heat divisions
of the engineering department concerning the details of his work ; the con-
versations took from 10 to 45 minutes, during the course of which he talked
about other matters, including "the weather, the ball game, the war, unionism,
common every day subjects " Hastings was never told of any practice which
forbade him leaving his drafting board and there is no evidence that prior to
discharge, Hastings was personally reprimanded or cautioned because of
absences from his drafting board or for any other reason concerning the qual-
ity or quantity of his work.'
Once when squad leaders Ross and Schattke were at work 10 to 15 feet in
distance from where Hastings sat, Hastings was asked by employee Hurley
what the Union proposed to do about some condition of work. Hastings gave
"an answer that merely was to pass off" the question Hastings observed no
reaction by either Ross or Schattke to Hurley's question and there is no. evi-
dence that this brief conversation was overheard by either Ross or Schattke.
On the morning of Hastings' discharge, Engle called him to his office and
there told him that his services were not satisfactory and were terminated as
of 5 p in. that day. Hastings expressed surprise and stated that he thought
he was "doing a good job" Engle replied that he too was surprised, he
believed that Hastings' work was satisfactory. When Hastings asked the reason
J
c On one occasion , the time of which is not fixed , Engle asked Hastings for a "definite
commitment" on a specific task and observed that "a certain amount of time . . . be
spent on the job." This is the nearest thing approaching censure or criticism of Hastings'
work.
THE AUSTIN COMPANY 859
for his discharge, Engle replied that he could say nothing further, but if Hast-
ings returned in a month he would be able to tell him more a Thereafter Hast-
ings asked Ross what he knew about his discharge and Ross replied, "noth-
ing," stating in addition that his work was "swell." Then Ross spoke to
Schattke who expressed surprise, adding that Hastings' work was "fine." In
view of these comments, Hastings asked Schattke and Ross for a letter of
recommendation, which was given to him.'
In its bill of particulars, the responder" cited the following reasons for the
discharge of Hastings as well as Brown: "(a) Inattentiveness to work; (b) Dis-
turbing other employees by visiting and being away from drafting boards; (c)
Inability to adjust themselves to The Austin Company's organization; (d) Failure
to accept orders; (e) Argumentativeness, (f) Lack of cooperation; (g) Inapti-
tude: (h) Inability to work well with others clue to traits of personality and
disposition " Testimony of the respondent's witnesses at the hearing was in
support of the first three reasons quoted above There is no evidence that Hastings
failed to accept orders, was argumentative, refused to cooperate, lacked aptitude
or because of his personality was unable to work with other employees. Testi-
mony in support of the first three reasons is in the main directed to the issue
that Hastings did not observe the squad system rule and was frequently absent
from his drafting board. In this connection, Hastings admitted that he found it
necessary to consult with other engineers for periods of 10 to 45 minutes in dura-
tion. Payne testified that sometime in August 1945, he noticed Hastings was not
at his desk and he spoke to Engle about it and asked him to correct the situation.
Payne did not investigate the reason for Hastings' absence and when he spoke to
Engle he did not confine his remarks particularly to Hastings, but spoke generally
of the condition which permitted such an absence. Payne testified further that
he concluded from his observations' that Hastings was not conscientious in his
efforts and lie passed his conclusions along to Engle. Engle testified that after
Payne had called his attention to Hastings, he checked and found him visiting for
as much as 15 to 20 minutes at the time. Engle testified also that, although
Hastings' work was "good," he finally decided to discharge him because his
absences from the drafting board became "flagrant." Engle acknowledged that he
never investigated the reasons for IIiistings' absences, but knew therefrom that
something was wrong Engle observed Hastings talking to Brown and other
employees, but he could not recall that he ever spoke to Hastings or complained
to his squad leaders, nor could he recall any complaint from the squad leaders
about Hastings violating the squad system rule.
Whether in tact this conduct of Hastings was so violative of the respondent's
squad system as to warrant discharge, or whether it was because Hastings
talked about the Union, is the question to be resolved Admittedly the system
was breached by Hastings as well as others, although respondent sought to limit
the violations There is no history of previous discharges or reprimands for
rule violation and it is clear that Hastings was never criticized. Moreover,
there is no evidence that the respondent forbade employee conversations and
9 Finding based on Hastings ' credible testimony . Engle testified : 11. . . finally I
just called him [Hastings] in and said his work was unsatisfactory, and we would have to
get along without him, because in a big organization that becomes contagious , and the first
thing you know the whole thing is out of balance."
I The letter of recommendation signed by Ross and Schattke stated :
"This is to certify that Mr . Paul Kenneth Hastings has worked under the direction of
the undersigned at various times while employed in this office . He was engaged in
the preparation of electrical drawings pertaining to industrial buildings . His work
has been entirely satisfactory during the time he has been under the supervision of
the undersigned.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hastings conversed about the war and ball games as well as trade unionism.
Similarly, there is no direct evidence that his conversations impeded production
or interrupted the work of others. Finally , this record discloses that at the time
Hastings was discharged , the respondent was exceedingly busy and shortly there-
after advertised for additional engineers and draftsmen.
Thus the reasons assigned for the discharge of Hastings are quite inconclusive,
particularly in view of the fact that there is no showing that his conduct upset
the respondent ' s production schedules by slowing down his own efforts or those
of other employees . In view of the inconclusiveness of the assigned reasons for
Hastings ' discharge , the question next arises whether in fact it was because of his
union interest and activity . The most that can be said on this latter point
is that Hastings , during the entire course of his employment from May 7, 1945, to
September 6, 1945, spoke to 9 out of some 60 or 70 employees concerning the Union,
and that on one occasion ad inquiry to Hastings about the Union was made while
his squad leaders were 10 to 15 feet removed . There is no evidence that they
overheard this inquiry or thereafter communicated it to Engle . In a small office,
where employees are in direct contact with each other and under the frequent
and close observation , of their supervisor , it is possible for information concerning
any single employee to reach the supervisor in short order . Office gossip and
small talk have a way of traveling which sometimes equals the fastest mode of
direct communication . But to find that Engle knew of Hastings ' union activity it
must be inferred that Engle was told about it, or concluded from his observations
of Hastings ' conversations with other employees that they were in part concerned
with the Union . The undersigned is unable to reach the conclusion and find as a
fact based on logical inference from the known facts, that Engle knew of Hastings'
union interest or activities and discharged him for that reason . Although as
previously indicated , the undersigned is not altogether convinced that the reasons
advanced by respondent for the discharge of Hastings are in fact the true reasons
for the discharge , nevertheless , in the undersigned 's opinion , there is insufficient
evidence to support the conclusion that Hastings was discharged by reasons of
his union activity . Therefore , it will be recommended that the complaint be
dismissed insofar as it alleges the discriminatory discharge of Paul K Hastings.
The discharge of Arthur S. Brown
The complaint alleged that Brown was discharged on September 14, 1945,
because he joined or assisted the Union, and for the further reason that lie dis-
tributed a petition among the respondent's employees to change the hours of em-
ployment and engaged in concerted activities. The respondent's answer denies
that Brown was discharged by reason of his union membership or because he
circulated the petition, but rather because Brown, without authority, distributed
the petition and conferred with other employees during working hours to such an
extent that the production of work was disturbed. The additional reasons set up
in the respondent's bill of particulars heretofore referred to, were advanced at
the hearing to justify Brown's discharge. -
Brown is a graduate electrical engineer of some 9 years' experience in his pro-
fession. He was hired by Engle on or about August 16, 1945, and assigned to
squad leader Ross. His duties to design power and lighting systems for com-
mercial and industrial buildings were outlined by Ross but Brown was given no
instructions concerning the respondent's office procedures. Brown testified, as
did Hastings, that in the course of his work it became necessary to consult with
engineers in other divisions concerning the details of designs. Sometimes Brown
followed the practice of first consulting Ross and on other occasions he went
directly to the engineers engaged in work on the same project for the information.
THE AUSTIN COMPANY 861
Brown testified that this would happen every 2 or 8\days and that the consul-
tations with other engineers would take "from a few minutes to maybe a half
hour," during which conversations sometimes digressed into other matters
"of interest to people generally"."
Brown was a member of the Union at the time he was employed and from on
or about September 1, down to his discharge on September 14, 1945, Brown spoke
to some 9 or 10 employees about the Union. If, on the initial approach to an
employee, Brown found the reaction favorable, he would tell the employee that
the Union was trying to get all of the engineers interested so that the office could
be organized. Brown never engaged in these activities in the presence of other
employees, aside from the one spoken to, and he admitted that some of his union
conversations were on company time. One of the subjects of frequent discussion,
since it was a matter of general office dissatisfaction, were the working hours.
At this time the engineers were working 48 hours a week which necessitated
overtime several evenings during the week. .
Brown was acknowledged to be a good engineer and he was never criticized
for speaking to other engineers concerning engineering problems or the conver-
sations he held with them. The same observations concerning the respondent's
squad system made in considering the case of Hastings are likewise pertinent in
the case of Brown. It was the same practice that was involved and, as indicated
above, Brown did on occasion depart from its observance.
Although Brown was judged a competent engineer, he was, on one occasion,
criticized by Tenney for his method of circuiting lights. Brown's method was
satisfactory but did not conform to the way Tenney wanted it done. Brown took
the attitude that his method was correct and Tenney allowed the incident to pass
that way. Engle testified that Brown was argumentative and reluctant to accept
suggestions so that he was allowed to complete his work in his own way in order
to save time. Engle testified' also that in September 1945, he received several
complaints about Brown and on checking he noticed that Hastings and Brown
were together a good deal and that Brown was away from his desk for long
periods of time. Engle could not name the complainants and he testified that
he could not remember any squad leader complaining about Brown. He testified
finally that Brown did not fit into the respondent's scheme of office procedures
which had to be highly geared and coordinated in order to maintain peak pro-
duction, and for this reason, plus the fact that Brown was frequently absent from
his desk, Engle decided to discharge him.
In considering Engle's testimony in support of the reasons set forth in the
respondent's bill of particulars for Brown's discharge, it may be that Brown
was argumentative and showed a certain inaptitude for the respondent's method
of doing business. But this testimony is so general in nature as to make it
difficult to accord it weight as to the real factor for the discharge. The under-
signed does not believe that Brown was so argumentative as to warrant discharge
on that ground alone, and the only evidence to support this trait is the testimony
of Tenney, which on this point was rather insubstantial. Moreover, it is not
without significance that any trained professional man, who from years of prac-
tice has acquired a certain manner and method of performing the duties and
functions of his profession, becomes to some extent an individualist performer.
8Biown testified " . . the building has a certain structure, and running electrical
conduit and wiring we have to know just how that building is constructed so we don't have
any interferences on it, so we have to collaborate with the structural departments, me-
chanical departments, to see that there is no interference. In that line, anyone who was
working on the same job in these other departments, it would be my business to work things
out with them if I was so instructed by Mr. Ross, and at various times I was."
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Similarly, with respect to the other reasons cited such as for example, "inatten-
tativeness tb work" or "inability to adjust . . . . to The Austin Company's
organization," in view of the testimony that Brown was a competent engineer
and that his squad leaders Ross and Schattke had never complained about his
work, it is difficult to conclude that these reasons also justified his discharge.
Finally, although the undersigned believes and finds that Brown departed on
occasion from the respondent's squad system procedure and engaged other em-
ployees in conversation, he was never criticized for this by his squad leaders
or by Engle and there was no company rule which forbade employee conversa-
tions. The undersigned is of the opinion that the real reason for Brown's dis-
charge is found elsewhere and consideration is now directed to those events
which finally led to Brown's discharge.
In the summer of 1045, the respondent sought to change its hours of employ-
ment in order to eliminate night work. Implicit therein, was the need to evolve
a plan which would not decrease overtime pay since this was considered an
essential element in the take-home-pay of the engineers. Engle asked the squad
leaders to poll the engineering department on a practical plan which would ac-
complish this purpose. The squad leaders reported inconclusive results over
proposed suggestions and Engle directed them to work out a system and inform
him when they had the concurrence of a majority of the employees.
When Brown was hired on August 16, 1945, this matter was a topic of general
conversation. Although Brown made no effort to inject this question into any
discussion he had with employees about the Union, the subject arose inevitably.
Brown was informed that previous to his employment, a petition had been cir-
culated to change the hours of employment. During the week prior to his dis-
charge, Brown asked several employees why they did not get up another petition
requesting a change in the hours of employment. Brown first sought to have
others initiate the petition and he asked several 'co-workers to do so but they
refused. This was on or about September 7, 1945. When Brown ascertained
that among the employees he had spoken to, no one was willing to initiate the
petition he did so on or about September 10.° Although the respondent had
reached its decision to eliminate night work in the summer, it is clear from
testimony that no change had been made when Brown decided on his petition.
Brown was the first to sign the petition and then passed it along to his colleagues,
helping at times in its circulation. In all, he took about 15 minutes to do this.
When Brown had obtained 11 signatures, he gave it to his squad leader Schattke.
Brown never saw the petition thereafter and it was passed around among other
employees, including squad leader Ross, until 45 signatures were obtained. The
next day Brown asked Schattke what had happened to the petition and he was
informed that nearly all the employees had signed and that it had been turned
in to Engle, and that both Engle and Payne were pleased with the petition.
When Engle receivedkthe petition he observed that a majority of the engineering
department employees had signed and he took it to Payne who approved it.
The hours requested in the petition were thereafter established in compliance
with the petition. Engle testified that he knew that Brown had drawn up the
petition.
On September 14, the paymaster presented Brown with a letter, signed by
Engle, dated September 13, 1945, stating: "We regret to advise it is the decision
° The petition stated : "We , the undersigned believe that it would benefit both the com-
pany and the employees to discontinue working nights . It would be better for the health
of the employees , which would result Jr. their increased efficiency. We propose that the
working schedule be rearranged as follows:
Monday through Friday, 8: 00 to 12 : 00-1 : 00 to 5 : 45 ; Saturday , 8: 00 to 12: 15.
Total 48 hours." -
O
THE AUSTIN COMPANY 863
of the Management that s our services are terminated as of 5 p. in., Friday, Sep-
tember 14, 1945." On receipt of the letter Brown sought to see Engle, who
was out of town. He then inquired for Ross, who was likewise out of town,
and Schattke when questioned could give Brown no reason for his discharge.
Brown returned to the office and saw Engle on September 18. He asked Engle
why he had been discharged According to Brown's testimony, Engle told him
that he had "stepped out of bounds by getting up that petition" ; that a petition
"should originate with an organization man" and not be instituted by a new em-
ployee ; and "that the company did not want new employees organizing the men
for any purpose " Brown testified further as follows concerning his conversa-
tion :
. . I their asked if I had been fired because I was trying to organize the
men in the union, and-he said yes He said he didn't object to the men or-
ganizing among themselves, but the company did not want outsiders com-
ing in to organize the men. I then asked him if he knew that it was a viola-
tion of the law to fire a man for union activity. He answered by only re-
peating that I had stepped out of bounds and that things at The Austin Com-
pany just weren't done that way.
In the conversation, according to Brown, no criticism was made of his work and
none of the reasons set up in the respondent's bill of particulars were advanced as
grounds for his discharge.
Engle testified that he did not discharge Brown because he circulated the pe-
tition but tl at he criticized him for hio, activities in connection with the petition
for the reasons that he was a "new man"; it was not for Brown to start or
initi te a petition, and the pi oper procedure in this case was to go to a squad
leader or directly to Engle, "but not to originate a petition himself." Engle's
further testimony concerning the conversation with Brown was as follows:
He [Brown] asked me why lie had been discharged and I told him that his
services weren't satisfactory that he was putting in, and he hadn't worked
out satisfactorily to us, and I told him also, among other things, I criticized
him for going over the heads of the rest of the men and working up a petition
He says, "What do you think I am trying to do, organize a union?" He
says, "I don't even belong to a union ." I said , "Union? I didn't know any
union matter here." I said, "It isn't that. It is just good business to try toy
keep in harmony with the men you are working under, Brown "
Brown was a precise witness. He favorably impressed the undersigned
Engle, on the contrary, sought to magnify trifling details out of all proportion to
their true import. He was at times evasive and given to generalities in describ-
ing events His testimony concerning the reasons why he criticized Brown for
initiating the petition did not impress the undersigned, particularly in view of
the fact that Engle had requested an expression of majority opinion, and that
thereafter he and Payne approved the petition. Further, on the straight issue
of credibility as between Brown's version of the conversation with Engle, and
the latter's, the undersigned credits and believes the testimony of Brown as the
more reasonable under all circumstances. Having been denied specific reasons
for his discharge, Brown asked point blank if it was because he was trying to
organize the Union. This appears a logical question in view of Engle's generali-
ties, and more reasonable in the light of Brown's activities, than Engle 's version
that Brown asked, "What do you think I am trying to do, organize a Union?"
For the reasons heretofore expressed , the undersigned* cannot afford great
weight to Engle's criticism of Brown for initiating the petition. Admittedly the
goal of the petition was respondent's objective but up to the time of its initiation
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group leaders had failed to muster a majority expression of opinion. Brown's
effoits achieved that aim. The undersigned is of the opinion that Engle's charac-
terization that Brown "hadn't worked out satisfactorily", was directed not to
Brown's ability as an engineer or that he infrequently violated the squad system
rule, but rather to the fact that on these infrequent occasions Brown sought to
organize the Union. As previously indicated, the rule obviously did not forbid
discussions of matters of general human interest, including trade unions, pro-
vided of course, that work was not impeded. There is no showing that the latter
was the case. As found above, Engle told Brown that he was discharged for
trying to organize the Union as distinguished from any time he may have spent
talking about other matters in violation of the squad system.
The undersigned concludes and finds that Brown was discharged because he
tried to organize the respondent's engineers and because he engaged in con-
certed activities in violation of Section 8 (1) and (3) of the Act. -
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has violated Section 8 (1) and ( 3) of the
Act, the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action which the undersigned finds necessary to effectuate the
policies of the Act.
The undersigned found that the respondent discharged Arthur S. Brown be-
cause of his efforts to organize the respondent's engineers into the Union. A
discharge of an employee for engaging in union or concerted activities is a
serious violation of the Act and indicates a purpose to interfere with the rights,
of employees generally as guaranteed by the Act. Therefore, in order to make
effective the policies of the Act, it will be recommended that the respondent be
ordered to cease and desist from in any manner infringing upon the rights
guaranteed employees in Section 7 of the Act. 10
Respondent's counsel argued in°its brief that a finding of unfair labor practices
was unwarranted on the ground that "The evidence failed to show that re-
spondent had any knowledge that employees Hasttings and Brown were engaged
in Union activities." The undersigned has found that such knowledge did in
fact exist with respect to Brown. However, knowledge that a union was the
beneficiary of Brown's organizational activity is not controlling in this case.
Brown initiated the petition after consultation with his fellow employees. He
circulated it and signed it with 44 of his co-workers. Such activity constituted
the concerted activity contemplated in Section 7 of the Act. As has been found
above, one of the motivating reasons for Brown's discharge was his concerted
activity in circulating the petition. Consequently, if the findings herein were
based on concerted activities alone the remedy recommended herein would be
appropriate. The Board has held that a discharge based on concerted activities
not only violates Section 8 (1) of the Act but also discourages membership in a
labor organization in violation of Section 8 (3). However, whether Brown's
concerted activities be viewed as a violation of Section 8 (1) or 8 (3), the
0
ION. L. R. B. v. Express Publishing Co., 312 U . S. 426; May Department Stores v.
N. L. it. B., 326 U. S. 376. 1
THE AUSTIN COMPANY 865
undersigned deems it necessary, in order to effectuate the purposes of the Act,
to recommend Brown's reinstatement with back pay.:"
In view of the finding that the respondent discriminated regarding the hire
and tenure of employment of Arthur S. Brown, the undersigned will accordingly
recommend that the respondent make whole Brown for any loss of pay he may
have suffered by reason of the discrimination against him, by payment to him of a
sum of money equal to that which he normally would have earned as wages from
the date of the discrimination against him to the date of the offer of reinstate-
ment, less his net earnings," during such period.
Upon the basis of the above findings of fact and the entire record in the case,
the undersigned makes the following :
CONcLusloNS OF LAW
1. International Federation of Technical Engineers', Architects', and Drafts-
men's Union, No. 90-A, affiliated with the American Federation of Labor, is a
labor organization within the meaning of Section 2 (5) of the Act. ,
2. By discriminating with regard to the hire and tenure of employment of
Arthur S. Brown, thereby discouraging membership in International Federation
of Technical Engineers', Architects', and Draftsmen's Union, No. 90-A, affiliated
with the American Federation of Labor, 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 exer-
cise of the rights guaranteed in Section 7 of the Act, 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.
5. The respondent has not violated Section 8 (3) of the Act by the discharge of
Paul K . Hastings.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that The Austin Company, its officers, agents, successors, and
assigns shall
1 Cease and desist from :
(a) Discouraging membership in the International Federation of Technical
Engineers', Architects', and Draftsmen's Union No 90-A, affiliated with the Ameri-
can Federation of Labor, or any other labor organization of its employees by dis-
charge, and refusal to reinstate any of its employees, or in any other manner
discriminating in regard to their hire or tenure of employment, or any terms or
conditions of employment ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights to self-organization, to form labor or-
"Matter of Rockingham Poultry Marketing Cooperative, Inc, 59 N. L. R. B. 486,
486-487; Matter of The Sandy Hill Iron & Brass Works, 55 N. L R B. 1, 1-2; Matter of
Ever Ready Label Corporation , 54 N. L. R. B. 551 , 557-558; Matter of Texas Textile Mills,
58 N L. R B 352, 353.
L 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 earn-
mg^ See Republic Steel Corporation v N L. R. B , 311 U. S 7.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganizations, to join or assist International Federation of Technical Engineers',
Architects', and Draftsmen's Union, No. 90-A. affiliated with the American Fed-
eration of Labor, 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 guar-
anteed in Section 7 of the Act.
2 Take the following affirmative action which the undersigned finds will ef-
fectuate the policies of the Act
(a) Offer to Arthur S Brown immediate and full ieinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges,
(b) Make whole Arthur S Brown for any loss of pay he may have suffered
by reason of the respondent's discrimination against him in regard to his hire
and tenure of employment in the manner set forth in the section entitled "The
remedy," less his net earnings" during said period;
(c) Post in conspicuous places throughout its district office in Chicago, Illinois,
copies of the notice attached hereto marked "Appendix A." 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 immediately by the re-
spondent upon the 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 ;
(d) Notify the Regional Director for the Thirteenth Region in writing, within
ten (10) days from the date of the receipt of this intermediate Report, what steps
the respondent has taken to comply therewith
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
It is also recommended that the allegations of the complaint that the respondent
discriminatorily discharged Paul K. Hastings, be dismissed
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 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 proceeding (including rulings upon all motions
or objections) as lie relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of excep-
tions and/or brief, the party or counsel for the Board filing the same shall serve
a copy thereof upon each of the other parties and shall file a copy with the
Regional Director As further provided in said Section 33, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing to the Board within ten (10j days from the date of the order
transferring the case to the Board. Any party desiring to submit a brief in.sup-
port of the Intermediate Report shall do so within fifteen (15) days from the date
13 See footnote 12, supra.
THE AUSTIN COMPANY 867
of the entry of the order transferring the case to the Board, by filing with the
Board an original and four copies thereof, and by immediately serving a copy
thereof upon each pf the other parties and the Regional Director.
MORTIMER RIEMER,
Trial Examiner.
Dated July 10, 1946.
APPENDIX A
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 Rela-
tions Act, we hereby notify our employees that:
We will not in any manner interfere with, restrain, or coerce our employees'
In the exercise of their right to self-organization, to form labor organizations,
to join or assist International Federation of Technical Engineers', Architects',
and Draftsmen's Union, No 90-A, AFL 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 reinstate-
ment to their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the discrimination.
Arthur S. Brown
All our employees are free to become or remain members of the above-named
unioii 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.
THE AUSTIN 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
accordance 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.
712344-47-vol 70-56