The Owatonna Tool Co.

National Labor Relations Board - Board Decisions

Jun 16, 1944

56 N.L.R.B. 1427 (N.L.R.B. 1944)

0
In the Matter of TnE OWATONNA TOOL COMPANY and UNITED CON
STRUCTION WORKERS DIVISION OF DISTRICT 50, U. M. W. A.
Case No. 18-C-949.Decided June 16, 1944,
DECISION
AND
ORDER,
On March 7, 1944, the Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondent had
,engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action as set forth in the copy of, the Intermediate Report
annexed hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a supporting brief. Oral argument, in
which the respondent and the Union participated, was held before the
Board in Washington, D. C., on May 18, 1944. The Board has con-
sidered the rulings of 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
respondent's exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner, with the exceptions, additions, and qualifications
noted below :
Interference, restraint, and coercion;. domination
and interference with the formation and administra-
tion of the Independent `
In 1937, the respondent's president told a general assembly of the
employees, a number of whom had recently joined the American Fed-
eration of Labor, that he disapproved of their surreptitious meetings
and that it would be better if they had an• organization of their own.
Later in 1937 the respondent laid off three employees who had con-
tinued their activities on behalf of the American Federation of Labor;
and, in the spring of 1941, it discharged'an employee 'who had begun
to solicit memberships for the Union. On each of these occasions
charges of discrimination, which had been filed with the' Board, were
settled without formal Board action.
56 N. L. R B, No. '259.
1427
1428 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When the Union began an or'ganizational,,campaign among the re-
spondent's employees in the.fall of 1942,'the respondent resumed and
intensified its opposition to affiliated unions and to the Union in par-
ticular, coerced its employees in the exercise of the rights under the
Act, and dominated and interfered with the formation and adminis-
tration of a rival union, a course of action \^hich continued to the time
of the hearing before the Board. Thus, in various issues of the "Tool-
O-Gram," 1 a' company bulletin which it distributed among its em-
ployees, the respondent printed pseudo-patriotic attacks upon "union
leaders" and their "greedy squabbles" and upon "Mr. Lewis" as a
"dangerous" and "unscrupulous" example. At a meeting of depart-
mental foremen, the respondent's president stated that he was not
opposed to unions provided 'the employees organized an independent
union and at the same time attacked affiliated unions as a "bunch of
racketeers" who would take the employees' money without giving
any return and would seek to run the respondent's business. Officials
of the respondent questioned one job applicant and the employee-
sponsor of another job applicant as to whether the applicants were
union members and, in the second case, as to-whether the applicant was
an "agitator." A departmental foreman was demoted to a non-siuper-
visory position when his union membership because known. The re-
spondent's personnel director refused an injured union employee's
request for lighter work and answered his-inquiry as to why he had
not been given the same raises as other employees with the statement
that the employee in question was a member of the Union, that the
respondent did not wan, to have anything to do with the Union, and
that under the circumstances favors could not be expected. On one
occasion the respondent's president, in reprimanding a union em-
ployee, referred to the trouble his union activities were causing and
charged him and certain other employees with ingratitude because,
they had joined the Union. On another occasion, the respondent's
president made use of this charge of ingratitude in refusing raises
to union members. Further illustrating the respondent's open display
of antagonism toward its union employees were the separate sugges-
tions by the respondent's superintendent and its president that a known
union member ought to quit his'job.
., 'On January 30, 1943, the respondent rejected the Union's request
for recognition, whereupon the Union, on February 9, filed with the
Board a petition for investigation and certification of representatives.
Shortly thereafter, Foremen Drum and Denny, accompanied by em-
ployee Winship, approached union member Dillon during working
hours. In the presence of the foremen, Winship asked Dillon to per-
I
The first of these bulletins quoted by the Trial Examiner is dated September 8, 1942,
and not September 18, 1942, as stated in the Intermediate Report.
I
1 ^
THE OWATONNA TOOL COMPANY 1429
suade the employees to "forget" the Union at the forthcoming Board
election because there was no need for the Union. Foreman Drum
lidded that if the Union's demands were granted, the employees would
earn less than they were then making! Within a week after this inci-'
dent, a group of 5 foremen, including Drum and Denny, and 2 other
employees, planned the formation of the Independent. The Chief
Inspector and 9 of the 10 departmental foremen, whose supervisory
status entitled them to attend the "foremen's meetings" held by the
respondeut,3 attended the formal organizational meetings on Febru-
ary 23, 1943, joined the Independent,-and signed its Articles of Asso-
ciation. One of the foremen, Rasmussen, vas elected as the-first per-
manent vice president. Both before and after the organizational
meetings, a number of foremen openly solicited men'ibershlps for the
Independent, in several instances on company time and property.'
On occasions, a foreman, in seeking to persuade a union member to
abandon the Union and to join the Independent, stated that advance-
ment would result or that the respondent intended to discharge all
employees who were not members of the Independent.
The contrast between the treatment which the respondent accorded
the Independent and the Union makes apparent the respondent's back-
ing of the Independent. Goddard, a leader of the Independent, was
able to leave his work on the night shift for an hour and a half without
loss of pay to attend a meeting of the Independent, although guards
about the plant were supposed to check ingress and egress. Solicita-
tion of memberships and collections of, dues for the Independent on
company time and property were uninterrupted. Only on July 27,
1943, after the Independent had submitted an affidavit to the respond-
ent as to the extent of its membership and was presumably well
entrenched, did the respondent forbid organizational activities on
company time or-property. Finally, in August 1943, the respondent
entered into negotiations for a contract with the Independent with
knowledge of the pendency before the Board of the Union's charges
that the respondent had violated the Act with respect to the Independ-
ent and despite the fact that, for this reason and because of the rival
claim of the Union for recognition, the respondent had-previously
refused to bargain with the Independent in the spring and in June
1943. While no agreement was reached as to-the terms of a contract,
the respondent admitted at the hearing that, by taking part in these
The Trial Examiner incorrectly attributed the statements of Winship on this occasion
to Foreman Drum We find, however, that Foremen Drum and Denny and employee Win-
ship were jointly appealing to Dillon to campaign against the Union
3 The Trial Examiner's findings as to the status of these foremen are discussed below.
4 In this connection, the Trial Examiner erroneously referred to employees Goddard and
(George) Christenson as foremen We therefore affirm only his finding that Foremen
Drum, Connell, Denny, Wardry, and Krahulec solicited memberships for the Independent.
1430 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
negotiations, it had recognized the Independent as the bargaining
agent of its employees. A neutral employer would not thus have-
tipped the, scales in favor of one of two rival claimants for recognition.
By recognizing and negotiating with the Independent, the respondent
rendered it valuable-assistance.
We agree with the Trial Examiner, and find, that the departmental
foremen, whose activities we have hereinabove outlined, are supervisors
representing management in the eyes of the employees and that the
respondent is responsible'for their activities. In reaching this con-
clusion, we adopt the Trial Examiner's subsidiary findings of fact
and also rely'upon the following facts, not mentioned in this connec-
tion in the Intermediate Report. The respondent contends that the
only supervisors over production are the superintendent, a general
foreman for the day shift, and an assistant general foreman for the
night shift, in spite of the fact that 150 men are employed in at least
11 specialized departments. It accordingly appears that the respond-
ent must depend, and does depend, upon the men whom it calls "depart-
mental foremen" for effective supervision of each of the departments.
To enable the foremen to fulfill this supervisory function, the respond-
ent required all of them to attend a coure on job methods and planning,
given by its superintendent. The respondent also emphasized the
supervisory status of the foremen' in the bulletins it issued to the
employees.' Thus, on December 1, 1942, it notified the employees that
2 of the foremen had "been instructed to devote all their time in super-
visory work . .." [italics supplied]. And in its rules and regula-
tions for employees, the respondent specified "insubordination to fore
men or supervisors" [italics supplied] as ground for disciplinary
action or dismissal. According to the testimony of General Foreman
Soukoup, whom we credit as did the Trial Examiner; insubordination
to departmental foremen was within the prohibition of this rule.
Upon the basis of the foregoing and upon the entire record, we find,
as did' the Trial Examiner, that the respondent has interfered with,
restrained, and coerced its employees,in the exercise of the rights guar-
anteed in Section 7 of the Act and has dominated and interfered with
the formation and administration of, and has contributed support to
the Independent, in violation of Section 8 (1) and (2) of the Act.
Discrimination as to Clem.Smerslz
Smersh worked for the respondent from February 1942 until his
discharge on November 18, 1943. During this time he received raises
which increased his wage rate from 35 to 60 cents per hour. Smersh
s Cf. Matter of Elastic Stop Nut Corporation , 51 N. L. R . B.,694, 702, enforced 142
F (2d) 371 (C. C. A. 8), decided May 1, 1944. .
1
THE OWATONNA TOOL COMPANY 1431
joined the Union in August 1943. Shortly thereafter, the respondent's
president told Smersh that he, was "disgusted" with him because' he
had joined the Union. In October 1943, Foreman Christenson tried to
induce Smersh to withdraw -from the Union and promised that the
respondent's president would make it worth his while. Smersh, how-
ever, continued his union affiliation and testified at the original hearing
in this proceeding concerning anti-union statement's made by the
respondent's president and one of the foremen.
On November 18, 1943, the day,after the original hearing closed,
Smersh was discharged ostensibly because he refused to whitewash the
flamecutting room while the furnace was in operation. As he told his
superiors at the time, the fumes from the furnace- made the work
dangerous, particularly since the dust collector had burned out.
However, the superintendent refused to shut'off the furnace and in-
sisted that Smersh leave' his uncompleted task of whitewashing the
office and immediately whitewash the flame-cutting room. It appears
that the shutting off of the furnace for the half day required to white-
wash the room would not have slowed or interfered with the opera-
tions of the plant. Moreover, in view, of the normal, intermittent
operation of the furnace, the whitewashing of the flame-cutting room
might well have been postponed for a week when the furnace became
idle. - Indeed, the work was performed by another employee about
a week later when the furnace was in fact shut down. Under the
circumstances, the order which Smersh ^ref useto obey was clearly
unreasonable, not merely because of the danger involved, but because
the danger could reasonably have been avoided. The respondent's
failure to explain why Smersh was ordered to whitewash the flame-
cutting room before completing his work in the office and the issuance
of such an order on the day following the 'hearing at which the
respondent's anti-union attitude and ,unfair labor practices were
exposed, indicate an intention on the respondent's part to rely upon
Smersh's likely refusal to obey the order as a pretext for discriminating
against him because of his persistence in adhering to the Union and
because he had'just given damaging testimony before the Board.
We find, therefore, as did the Trial Examiner, that the respondent
discriminatorily discharged and refused to reinstate Smersh because
of his membership in the Union and because he gave testimony under
the Act,6 thereby discouraging membership in the Union in violation
of Section.8 (1), (3), and (4) of the Act.
e
There is no testimony in the record that a representative of the Minnesota State Indus-
trial Commission inspected the plant on or about November 18, although counsel for the
respondent, in cross-examining Smersh, suggested that such an inspection had been made.
Accordingly, we reverse the Trial Examiner's finding in this respect as well as his inference
that the improvement of the ventilating arrangement in the flame-cutting room was the
result of this 'inspection. -
W
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discrimination as to Kenneth R. Sette
Sette has been employed by the respondent since March 1941 and
worked regularly in the forge department from the fall of 19417
until early November 1943, except for a temporary assignment of a
few weeks in August and September 1943, in the steel room after
having been overcome by the heat. He joined the Union in August
1943 and testified as a Board witness at the original hearing in this
proceeding concerning the duties and authority of departmental
foremen.
On November 6, 1943, because of "light" work in the forge room,
Sette was temporarily,transferred from his job in that department
to general utility work, thus losing a production bonus averaging $4
or $5 a week. By November 20, work in the forge room had again
become normal but an employee with less seniority was given Sette's
job.8 On the following day, 4 days after the original hearing had
closed, the respondent rejected S,ette's request that he be returned
to his old position, on the ground that he had been "loafing on the
job." As the Trial Examiner found, Sette's satisfactory performance
of his work was attested by his receipt of individual as well as gen-
eral wage increases and departmental bonuses, by the absence of any
previous criticism for loafing, and by the fact that he had been
chosen by the foremen of the forge department to demonstrate, by
his work, the fairness of the bonus rate fixed for the department.
Moreover, the respondent introduced no testimony at the hearing on
the allegations of discrimination and thus made no attempt to support
the ground it gave to Sette for refusing to reinstate him to his job
in the forge room.
We find, therefore, as did the Trial Examiner, that the reason for
the respondent's refusal to reinstate Sette to his regular job was,not
that his work was unsatisfactory, but that, as in the case.of Smersh;
he was a member' of the Union and had given testimony under the
Act. We find further that by refusing to reinstate Sette to his reg-
ular job, the respondent discriminated in regard to the tenure, terms,
and conditions of Sette s employment, thereby discouraging member-
ship in the Union in violation of Section 8 (1), (3), and (4) of the
Act.
Y Sette began working in the forge department in the fall of 1941 rather than in the fall
of 1942 as found by the Trial Examiner -
8 The identity of the employee who took Sette 's job is not shown in the record . However,
it is clear that he could not have been Sette 's senior-m the forge department According
to Sette 's uncontradicted testimony , he had worked in the forge department longer than
any other non-supervisory employee except Clarence Bailey. Bailey had remained at his
own job in the department duting the period of Sette's temporary absence.
THE OWATONNA TOOL COMPANY 1433
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 Owatonna Tool Com-
pany, Owatonna, Minnesota, and its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of, or con-
tributing support to Tool Manufacturers Independent Union of
Owatonna, and dominating or interfering with the formation or ad-
ministration of, or contributing support to, any other labor organiza-
tion of its employees;
(b) Discouraging membership in United Construction Workers
Division of District 50, U. M. W. A., or in any other labor organi,za-.
tion of its employees, by demoting, discharging, or refusing to re-
instate any of its employees or by discriminating in any other manner
in regard to their hire or tenure of employment or any term or
condition of their employment; I
(c) Discharging, demoting; or otherwise discriminating against
any employee because he has given testimony under the Act;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to
form, join, or assist United Construction Workers Division of Dis-
trict 50, U. M. W. A. 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) Refrain from recognizing Tool Manufacturers Independent
Union of Owatonna as the representative of any of its employees
for the purpose of dealing with the respondent concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment, and completely disestablish
Tool Manufacturers Independent Union of Owatonna as such
representative;
(b) Offer Clem Smersh and Kenneth Sette immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to their seniority or other rights and privileges;
(c) Make whole the said Clem Smersh for any loss of pay he has
suffered by reason of the respondent's discrimination 'against him,
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-by payment to him of a sum of money equal to the' amount which
he normally would have earned as wages during the period from the
date of his discharge to the date of the respondent's offer of rein-
statement, less his net earnings during said period;
(d) Make whole the said Kenneth Sette for any loss of pay he has
suffered by reason of the respondent's discrimination against him, by
payment to him of'a sum of money equal to the amount which he
normally would have earned at his regular job in the forge room
during the period from November 21, 1943, to the date' of the re-
spondent's offer of reinstatement, less the sums received by him from
the respondent for other work during said period;
(e) Post immediately in conspicuous places throughout its plant
in Owatonna, Minnesota, and maintain for a period of at least
sixty (60) consecutive days from the'date of posting, notices to its
employees stating : (1) that the respondent will not engage in the
conduct from which it is ordered to cease' and desist in paragraph 1
(a), (b), (c), and (d) of this Order; (2) that the respondent will
take the affirmative action set forth in paragraph 2 (a), (b), (c),
and (d) of this Order; and (3) that the respondent's employees are
free to become and remain members of United Construction Workers
Division of District 50, U. M. W. A., or any other labor organiza-
tion, and that the respondent will not discriminate against any em-
ployee because of his membership or activity in that or any other labor
organization or because he has given, testimony under the Act;
(f) Notify the Regional Director for the Eighteenth Region in
-writing, within 'ten (10) days from the date of this Order, what.
'steps the respondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. Francis X. Helgesen and Clarence A. Meter, for the Board
Mr. Phillip J. Mackey, of St. Paul, Minn., and Mr . Samicel Lord ,' of Owatonna, i
Minn., for the respondent.
Mr John R . Walbrah, of Owatonna, Minn, for the Independent.
Mr. Milton Hodson, of Owatonna, Minn ., for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed October 28, 1943, by United Construction Workers
Division of District 50, U. M W. A, herein called the Union, the National Labor
Relations Board, herein called the Board, by its Regional Director for the
Eighteenth Region (Minneapolis, Minnesota), issued its complaint dated October
28, 1943, against The Owatonna Tool Company, herein called the respondent,
alleging that the respondent had engaged in and was engaging in unfair labor,
practices affecting commerce within the meaning of Section 8 (1) and (2) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint and notice of hearing were duly served
' Samuel Lord entered an appearance at the reopened hearing.
1
THE OWATONNA TOOL, COMPANY , 1435
upon the respondent, the Union, and upon the Tool Manufacturers Independent
Union 'of Owatonna,' herein called the Independent, alleged in the complaint to
be a company dominated union. -
With respect to the unfair labor practices the complaint alleged in substance:,
(1) that the respondent about February 19, 1943, inaugurated, created, and
established the Independent and, has since that time, (a) permitted and par-
ticipated in solicitation and campaigning-for the Independent on company time
and property, (b)' paid employees for time spent in activities on behalf of the
Independent, and (c) fostered and promoted the growth, and dominated and
interfeied with the activities of the Independent and contributed support to it;
(2) that the respondent since about June 1, 1937, (a) warncd and discouraged
its employees against affiliating with or becoming active in outside unions, (b)
questioned its employees and applicants for employment about their union
affiliations, (c) made disparaging and derogatory statements about labor unions,
and (d) 'advised employees that they would not receive benefits through collec-
tive bargaining with the Union or other outside labor organizations; (3) by the
`foregoing acts the respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights'guaranteed in Section,7 of the Act'
Pursuant to notice, a hearing was held from November 11 to November 17,
1943, at Owatonna, Minnesota, before J. J. Fitzpatrick, the undersigned Trial
Examiner, duly designated by the Chief Trial'Examiner. At the opening of,the
hearing the Independent filed a motion for leave to intervene. The motion was
granted and the Independent was permitted to' participate in the proceeding in-
sofar as its interests were affected The Board, the respondent, and the Inde-
pendent were represented by counsel, the Union by its representative. All
parties participated in the hearing and were granted full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues. At the conclusion of,the hearing, counsel for the Board, the
respondent , and the Independent , presented oral argument . The parties were
advised of their right to file briefs with the undersigned after the close of the
hearing.
After the close of the hearing Board's counsel served on all parties, and on
December 10, 1943, filed, a motion for leave to issue an amended complaint and
reopen the hearing. . Attached to the moving papers were a second amended
charge filed by the Union December 4, 1943, and the proposed amended complaint
based thereon. In addition to the allegations of unfair labor practices hereto-
fore referred to the amended complaint also alleged in substance that the
respondent about November 18, 1943, discharged Clem Smersh, and about Novem-
ber 20, 1943, demoted Kenneth Sette, because each of them joined and assisted
the Union and gave testimony under the Act. On December 10 the Chief Trial
Examiner notified the parties that objections to the motion would be received
up to December 13, 1943 -No objections were filed and on December 15 the Chief
Trial Examiner granted the motion and ordered the hearing reopened. On
2 Incorrectly referred to in the complaint at Onatonna Tool Makers Independent Union.
3 No formal answer was filed by the respondent. The respondent's counsel, at the open-
ing of the hearing, stated on the record that he had prepared a general denial to the corn-
plaint but had decided not to file it as he nas not required to do so under the Board' s Rules
and Regulations. All the allegations of unfair labor practices in the complaint were put
in issue by the examination of witnesses, the introduction of evidence' and oral argument
upon the merits by the respondent The allegations ot,unfair labor practices in the coin-
plaint will therefore be deemed denied by the respondent . Cf In the Matter of Model
Blouse Co et at., 15 N L.'R. B 133, 137. Furtheirnore, as will hereafter appear, the re-
spondent later filed a general denial to all allegations of unfair labor practices alleged in
the amended complaint.
1436 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD
January 8 , 1944, the respondent filed its answer denying all allegations of unfair
labor practices in the amended complaint.
1Pursuaiit to notice the reopened hearing was held January 12 and 13, 1944,
at Owatonna , Minnesota , before 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 ' All participated in the hearing and
were granted full opportunity to be heard,'to examine and cross -examine wit-
nesses, and to introduce evidence bearing on the issues After completing the
presentation of his evidence Board's counsel moved to conform the pleadings to
the proof in formal matters. There was no objection and the motion was granted.
The respondent then rested its case without the introduction of any further
te'stiniony . Oral argument was presented by counsel for the Board and for the
respondent . Both stated on the record that they did not desire to file briefs
with the Trial Examiner . No briefs have been filed . On February 1, 1944, after
the close of the reopened hearing the undersigned , pursuant to a stipulation
entered into by all parties ordered certain corrections made in the transcript
of the record.
Upon the record thus made , and from his observation of the witnesses, the
undersigned makes the following :
FINDINGS OF FACT'
I THE BUSINESS OF THE RESPONDENT
The Owatonna Tool Company, is a Minnesota corporation with its office and
principal place of business in Owatonna, Minnesota It is engaged in the
design, manufacture, and distribution of hand tools. During the year ending
October 28, 1943, it used materials and supplies in excess of $500,000 in value,
of which approximately •95 percent was purchased in States other than the State
of Minnesota. During the same peiiod the sales of finished products were in
excess of $500,000, of which 95 percent was sold and shipped in interstate
commerce to points outside the State of Minnesota. The respondent does not
question the jurisdiction of the Board.
II. THE ORGANIZ 1TIONS INVOLVED
United Construction Workers Division of District 50, U M W A., and Tool
Manufacturers Independent Union of Owatonna, unaffiliated, are labor organiza-
tions admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; domination of the Independent
1. Background
In the spring of 1937 a number of the respondent's employees,'including Oscar
Henson, Walter Bucholtz, Bob Davis, Vince Rischavy, Carl Hilland, and some
others, became interested in establishing an,American Federation of Labor union
in the respondent's plant and as a result a number of organizational meetings
were held at the homes of van ious employees. That, fall, Ruben A. Kaplan,
4 At the opening of the hearing the attorney for the Independent entered an appearance
"pursuant to the notice " He then stated on the recoi d that as his client'was not involved
he would not paiticipate and withdrew from the hearing
Unless otherwise indicated oil findings of fact herein are based upon undisputed
evidence. 1
THE OWATONNA TOOL COMPANY 1437
the respondent's president and general manager, told the employees who had
been assembled in the machine shop just before working hours ° that he did
not approve of the employees meeting surreptitiously and- that it would be much
better if the employees had an organization of their own.'
On October 15, 1937, the respondent notified all the employees that because
of seasonal slack woi k, and to avoid lay-offs or a plant shut-down, the plant
working hours would be reduced to 40 hours a week starting October 18 and so
remain until business revived.
Subsequently to the above talk of, Kaplan and the notice of the reduction
in the hours of work, Henson, Bucholtz, Davis, Rischavy, and Hilland' continued
their activities on behalf of the A F. of L. Union.
In November, Henson, Rischavy, and Hilland were laid off by the respond-
ent' At that time a charge was filed in the Regional Office of the Board, alleg-
ing that the lay-offs were discriminatory. After an investigation by the Board's
Regional Office, the' natter was settled without a hearing by the reinstatement
of Henson and Hilland° about-December 2, 1937, and the posting by the re-
spondent of the following notice in its plant :
THE COMPANY AFFIRMS AS ITS POLICY THAT ANY EMPLOYEE
MAY JOINT ANY LABOR ORGANIZATION OF HIS CHOICE AND THAT
SUCH ACTION ON THE PART OF ANY EMPLOYEE WILL IN NO WAY
RESULT IN ANY DISCRIMINATION AGAINST SAID EMPLOYEE AS
REGARDS TENURE, WAGES OR CONDITIONS OF WORK THE SU-
PERVISORY STAFF HAVE BEEN INSTRUCTED THAT ANY INFO RAC-
TION OF THE ABOVE POLICY WILL RESULT IN DISCIPLINARY
ACTION.
RECENT LAY-OFFS ARE DUE TO AND ANY FUTURE LAY-OFFS
WILL BE DUE TO BUSINESS CONDITIONS, AND THE AMOUNT OF
AVAILABLE WORK IN THE SHOP; AND AS SOON AS OPERATIONS
PERMIT ALL EMPLOYEES LAID OFF WILL BE REINSTATED IF THEY
SO DESIRE.
Signed (S) R. A. KAPLAN,
President.
DEC 2, 37.
2 Organizational activities for the Union ; other events
So far as the record discloses there was no further union activity by the
respondent's employees after the events above found until the spring of 1941.
° Early in 1937, the respondent had about 50 production employees and presumably
worked but one shift In the fall of 1941 as the respondent got into war production work
the number of employees gradually incieased until it reached approximately 150 about the
spring of 1943, where it has since remained, with approximately 100 employees working
on the day shift and 5,0 employees on the night shift . At the time of hearing the respondent
was engaged 100 percent in war work
7 This finding is based upon the testimony of Oscar Henson. Kaplan admitted talking
to the employees in 1937 and that he criticized them for holding secret organization meet-
ings Ile denied that he suggested to the employees the formation of an Independent union.
However, Kapan further testified that, since 1937, the respondent has not wanted any
organization among the employees, and stated that if the employees wanted a labor organi-
zation it preferred that they have an inside union It is therefore found, that Kaplan
made the statement substantially as testified to by Henson.
9 Bucholtz and Davis had in the meanwhile quit their jobs with the respondent
° Hilland received back pay for the time lost because of the lay-off. Henson did not as
his net earnings in the interim were more than he would have earned at the respondent's
plant Apparently Rischavy was not reinstated
1
587784-45-vol 56-92
1438 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD
About April 2, 1911, Employee Ted Maamun became interested in and joined
United- Construction Workers -Division of District 50, U. Al. W. A, although,
at the time the Union'had no local organization in Owatonna. Thereafter he
solicited applications for the Union among the respondent's employees. Later
in April, Maamun, accompanied by a group of interested employees, took one-half
a day off from work and went to Minneapolis, Minnesota, where the Union's
,office was located. A short time thereafter Maamun was discharged. A charge
alleging that the discharge was discriminatory was filed by the Union in the
Board's Regional Office. 'After an investigation the case was,settled about the
end of,May without a hearing, by the reinstatement of Maamuu with back pay.
-Subsequent to his reinstatement Maamuu was elected vice chairman of local
149 of the Union which in the meanwhile had been established in Owatonna10
Thereafter interest in the Union continued among the respondent 's employees
and in the fall of 1942 Milton Hodson, official representative of the Union, came
to Owatonna from the Minnesota office and a drive was inaugurated to organize
not only the employees of the respondent's plant, but also other manufacturing
concerns in Owatonna. On'September 18, 1942, the respondent issued'a "Tool-
0-.Gram" 11 which stated in part:
In the September issue of Reader's Digest there appeared an article under
the beading "They Were Expendable", telling of the inspiring saga of a
handful of American naval heroes who waged a forlorn-hope in midget torpedo
boats against the planes and cruisers and heavy guns of Japan's overwhelin-
ingly prepared aggression against the Philippines.
o • s s s , a m
In another magazine a cartoon depicted the effort we at home have been
making. Production in general was behind schedule, due to greedy squabbles
by some of our Union leaders . . .'which resulted in the loss of thousands
of man-hours, and how many soldiers no one will ever know. For three
successive months the War Bond quota figs not been met.
In the fall of 1942, Duane Baker applied for a job with the respondent giving
Oscar Henson as a reference. Vice-President Ave Kaplan later questioned Hen-
son 12 about Baker, among other matters inquiring if Baker was "an agitator"
and whether be was affiliated with any Union.
In October, Clarence Bailey, one of the older employees in the forge shop, was
appointed foreman in that department by President Kaplan At the time of
liis appointment Bailey reminded Kaplan that News Christenson had more,
seniority in the forge shop that he (Bailey) had, and was therefore entitled
to be foreman. Kaplan replied that Bailey was the man the respondent wanted
as foreman . Bailey then assumed the duties of department foreman and at-
tended three foreman's meetings 13 At the last foremen's meeting Bailey at- i
tended, in November, 1942, President Kaplan asked the foremen what they
thought about union activities in Owatonna. Upon receiving no specific response;
Kaplan stated that he had nothing against a union provided the employees or-
10 In the spring of 1942, Maamun became chairman of the Local when the previous
chairman resigned.
11 Tool-O-Gram was'the name given to a mimeographed or multigraphed communication
issued and distributed by the respondent to its employees or posted on its bulletin board
at irregular but frequent intervals.
12 About 1939 Henson, by virtue of his seniority , had become foreman of the plating
department.
13 These toremen ' s meetings were called by the respondent several times a month to
discuss production problems of the plant. They were attended by most of the department
foremen.
THE OWATONNA TOOL COMPANY '1439
ganized an independent union; that he did not want the employees "tied up
ivith some bunch of racketeers taking their money and doing them no good" ;
that he wanted to run his business his own way, but that "these fellows" would
be running his business for him
At the time of his appointment as foreman of the forge shop Bailey was a
member of the Union This fact, however, was not known to the respondent
at the time. After Bailey had been foreman for several weeks, and had attended
the three foremen's meetings above referred to, he accidentally left his billfold
containing his union card in the washroom. He returned for the,missing pocket-
book about 10 p. m. the same evening" and found that its contents had been
seen by several employees After this incident Bailey's connection with the
Union was advertised by the surreptitious marking of his initials "C A B.",
followed by "C I. 0"," on tools and on the walls in his department Bailey
was never again invited to the foremen's meetings, although they were .held
thereafter at frequent intervals. Nels Christenson was later appointed foreman
of the forge shop to succeed him." It is found that Bailey was not invited to
foremen's meetings after November 1942, and was thereafter demoted from
his position as foreman, because of his union membership
'In December, John W. Kenney, then a resident of Milwaukee, Wisconsin, who
had relatives in Owatonna, applied to the respondent for work, giving his sister's
home in Mankato, '1\Iinnesota, as his address He was interviewed relative
-to his qualifications by "one of the Kaplans" " who asked Kenney if he was a
union member. Kenney answered in the affirmative."
14 This finding is based upon the testimony of Bailey and the surrounding circumstances
Kaplan denied that he ever urged that an independent union be organized. Ed Betloch,
the only other department foreman who was questioned relative to this foremen s meet-
ing, testified that he could not recall Kaplan making the above statement As hereto-
fore found, Kaplan admitted a definite antipathy to any kind of union organization
among his employees and testified that if an organization was necessary he preferred
ithat the employees have an independent union He further testified to knowledge of
the efforts of the -Union to organize the employees, not only of the respondent but of
other local companies, and that these organizational efforts were a frequent subject of
discussion'in Owatonna In the light of Kaplan's anti-union attitude, his preference for
an inside union, and the creation in February 1943, as will 'hereafter appear, of the
Independent, the denial of Kaplan is not credited
16 At this time the respondent was maintaining two 10-hour shifts.
18 Although the Union was not at this time affiliated with the C I 0., it was associated
with that organization by the respondent and its employees
11 Before the advent of Personnel. Director Hertz in July 1943, who thereafter called
the foremen's'meetings, the department foremen were usually asked to attend these
meetings by General,Foreman Soukup, or one of the Kaplans Soukup testified that lie
knew of no ieason'why Bailey was not theieafter invited to the foremen's meetings
Piesident Kaplan more frankly testified that it was,decided to drop Bailey as,a foieman
about November 1942 because of the poor production showing in the -forge shop and that
finally about August 15, 1943, Nets Chiistenson was installed as foreman in place of
Bailey Lacking any corroborative evidence of poor production in the forge shop during
the period Bailey was in charge thereof, Kaplan's testimony that Bailey was demoted as
foreman because of poor production is not credited.
18 As previously found, Ruben A. Kaplan, was president of the respondent His brother
Ave, was vice president, and another brother Don, was plant superintendent.
"Kenney was not thereafter employed by the respondent In, his testimony lie was
unable to identify which Kaplan questioned him. Although there was no specific identi-
fication in this respect, the testimony is credited, lacking any denial Ruben Kaplan
was the only one of the three brothels who testified and he was not questioned relative
to the above incident. There was no showing of unavailability on the gait of the other
brothers Furthermore, the respondent had a record of the Kenney application winch
it produced at the hearing together with an ans\i ei to an inquiry made to a, Dlankato
credit bureau to the effect that no John W. Kenney was living at the address in Mankato
he had given
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 30, 1943, Hodson, the union, representative, demanded rbcogni-
tion of the Union by the respondent and submitted a proposed contract. No
specific proof of majority representation was produced and the respondent refused
to recognize the Union as the representative of its employees. On February 9,
the Union filed with the Eighteenth Regional Office a petition for, investigation
and certification of representatives, alleging that it represented a majority of
the respondent's employees in an appropriate unit.
3. Formation of the Independent; other events
About February 17 in the washroom of the grinding department during work
ing hours Harlan Denny, foreman of the steel room, and Harry Drum, foreman, -
of the heat treating department, talked to employee Russell Dillon20 about the
Union's petition for representation At that time Drum said to Dillon, "They
are going to have an election on the union here, so I hear. Won't you please
speak to the new boy's and the old boys along with them and ask them to forget
about it? We don t need no union here" Drum told Dillon that the Union
was asking for 70 cents an hour and a 40 hour week and under such circum-
stances-the employees would not make as much money as they were then
earning."
One evening about a week before February 23, a number of the employees
congregated in the bar room of the Owatonna hotel. The group included Harry
Drum, Stanley Connell, Harlan Denny, Frank Krahulec and Seward Abbott,
department foremen ; Paul Swenson, draughtsman ; and Gilbert Russell, ordinary'
employee During the course of the evening, the group decided to form an inde-
pendent union among the respondent's employees and A. L Goddard was se-
lected to organize the new union' From then until the following June there
was considerable activity on behalf of the new union. John R Walbran was
retained as attorney and prepared Articles of Association. Application forms
were printed and memberships solicited by department foremen Drum, Denny,
Connell and Joe Wardry as well as by some ordinary employees.. The evening
of February 20, Immanuel Kubalski and about 6 other employees were invited
to the home of Frank Krahulec, foreman of the repair department. During
the evening Kubalski signed an application to join the Independent, and paid
Krahulec 1 month's dues of 50 cents. An employee from Jostens,28 whom Kubal
ski was unable to identify by name,' was also present The Josten ^representa-
tive told the group it was important that the Union be kept out of Owatonna
and the Independent be established in the respondent' s plant, because, as he
stated, if the Union became established in the Owatonna Tool Company, it would
also gain a foothold at Jostens. During the course of the meeting the question
arose as 'to who would be a good leader for the Independent and Al Goddard's
name was mentioned in this respect. Goddard was then sent for and'spent about
20 Dillon was not on duty, at the time but had come to the plant to get his cap.
21 Neither Denny nor Drum testified , and there was no showing of their unavailability.
22 Up to the first of January 1943, Goddard had been a salesman for the respondent ;
however, about a month before the February meeting in the hotel , Goddard was em-
ployed on the night shift as a machine operator There is some evidence that Goddard
may have been at the hotel meeting , but the record is not clear in this respect. In any
event , Goddard shortly thereafter proceeded to organize the Independent.
23 Jostens is a manufacturing concern also located in Owatonna.
29 Kubalski testified that in addition to working for Jostens the man in question operated
a small fox farm near Owatonna. '
THE,OWATONNA*TOOL COMPANY 1441
to hour and a half at the party.' As heretofore found, Goddard had already
.been approached by Krahulec and other foremen relative to organizing the Tilde-
pendent. There is evidence of some solicitation on behalf of the Independent
on company time by employees and bysome of the department foremen. 't'hus,
Clarence Bailey testified that employee Geoige Christenson, during working hours
solicited him and other employees to join the Independent; that Harry Drum,
foreman of the heat treating, department, adjoining his department, came to
,him during working hours and told him that he did not have "anything against"
Bailey because the latter had previously joined the Union but that he wished
he would join the Independent Drum did not specifically deny this testimony
of Bailey's but did deny that he solicited for the Independent. In view of
Drum's interest in the Independent, heretofore found, his denial is not credited.
George Christenson did not testify and there was no showing of his unavail-
ability. It is therefore found that Bailey was solicited to join the Independent
by Chi istenson and Foremah Drum on company time.
Due to the efforts of Foremen Drum, Connell, Denny, Wardry, Kraliulec,
Goddard, Christenson, and other employees, a number" of the employees signed
Independent application cards and paid a month's dues of fifty cents prior to
February 23. On the afternoon and evening of February 23, Independent
meetings were held at a downtown hall, the afternoon meeting for the night
shift and the evening meeting for the day shift. The meetings were advertised
by word of mouth and by handbills passed to employees entering the plant.
The two meetings were attended by a majority of the respondent's employees.
The day meeting was called to order by Goddard who introduced Attorney
Walbran to the employees. Articles of Association of the Tool Manufacturers
Independent Union of Owatonna were then read and signed by all those present,
including Chief Inspector John Pichner 2' and practically all the department fore-
men. Temporary officers were then elected as follows : President, Al Goddard ;
Vice president, Frank Krahulec; and Secretary-Treasurer, Donald Thomas.27 At
the smaller meeting for the night shift the same procedure was gone through,
except for the election of officers. Including the Chief Inspector and foremen,
'96 of the respondent's. approximately 150 employees signed the Articles of-
Association. Thereafter meetings of the Independent were held about once a
month.
Early in the spring of,1943, Goddard and Thomas, the newly elected officers
of the independent, met with vice president Ave Kaplan and, claiming that the
Independent represented a ;najority of the production and maintenance em-
ployees of the respondent, asked that it be recognized as bargaining representa-
2c The respondent 's records show that for the weeks starting February 13 and 20, God-
dard worked each night and checked out only for a short lunch period" of about 1/2 hour
each evening There was no record that Goddard checked out foi any period save
lunch time on February 20, or on any other evening prior to February 23 The respondent
contends that it has had considerable trouble with night employees leaving their work
for periods without checking out. In view of the fact that there were never more than
50 employees on the night shift , and that in February, 1943, there were guards at the
plant protecting ingress and egress , the suggestion that employees on the night shift
could leave for indefinite periods without the respondent' s knowledge'is rejected.
27 Conceded by the respondent to have supervisory authority
27 Krahulec , however, resigned as vice president within twenty-four hours March 21,
Goddard and Thomas were elected as permanent president and secret ary -treasui ei, re-
spectively , and Everett Rasmussen , foreman of the cutting department , was elected vice
president . May 16, Goddard resigned as president and was succeeded by employee Richard
Craw b uck.
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive. Kaplan did not question the majority claim of the Independent or demand
proof thereof, but told'the Independent officials that lie could do nothing about
their request. because the Union also had asked for recognition
Oscar Henson, union member, who had joined the Independent on February
23, refused thereafter to pay dues to the latter organization. Later in the
spring Henson's brother-in-law, Foreman Everett Rasmussen told Henson that he
had better "get into" the Independent as Rasmussen had heard that the respond-
ent was going to discharge those employees who did not "sign up" in the'Inde-
penderit. That spring, Russell R. Dillon was asked by employee Dean Winship
during working hours to join the Independent Dillon replied that he wanted
to think it over. Later the same day Dillon was again solicited to join the
Independent by Foreman Everett Rasmussen 28 On May 15, 1943, the Union
filed a charge in the;Regional Office alleging assistance and domination by the
respondent of the Independent.
During the month of May a Tool-O-Gram was issued, prepared by William
Zamboni, in charge of the production control and time study department, in
the form of an open "patriotic" letter to John L. Lewis, subtly criticizing the
head of the United Mine Workers for holding up the nations coal production.
On May 18, another Tool-O-Gram was issued, also patriotic in tone, which
referred to the previous "letter" to- John L Lewis. The Tool-O-Gram then.
continued in part:
But Mr. Lewis is only one. There are many; not quite so well
publicized, perhaps, not quite so much in the public eye, but just as
dangerous and just as unscrupulous.
About June 1 President Crawbuck and Secretry Thomas of the Independent
submitted to either Ruben A. ,Kaplan or Ave Kaplan, an affidavit, executed by
Thomas, to the effect that the Independent represented a majority of the
respondent's employees. At the same time Crawbuck and Thomas discussed
with this official of the respondent terms of a proposed contract to be executed
between the Independent and the respondent. On June 7, Ave Kaplan wrote
Attorney Waibran that because of the union charges of unfair labor practices
filed against the respondent its attorney had advised that it could not enter
into an agreement with any labor organization until the charges were cleared.0
About the first of June, Henson began wearing his union button in the shop.
There was a coca-cola and' milk machine in the plant and it was customary
once every morning for the head of the plating department 30 to get coca-cola or
milk for the employees and pass it around in the department. About two days
after he started wearing his union button, Henson had secured the soft drinks
when.. Superintendent Don Kaplan' said to him, "Shorty, you've got to cut this
out. You have, been fooling around' here a little bit too much. If you want to
28'Neither Rasmussen nor Winship testified and there was no showing of the unavail-
ability of either as a witness
However, about the middle of August, because of "delay" in the prosecution of the
charge and to "get some action", the officials and attorneys for the respondent and the
Independent metcand discussed the terms of a proposed contract that Walbran had in
the meanwhile drafted. As the contract drawn was incomplete in certain respects, it was
agreed that Attorney Mackey redraft a foini of contract. Mackey did so and mailed copies
to Walbran and the respondent about August 30 Nothing further was done about it, how-
ever, and the form contract as redrafted was never accepted in all its details by the re-
spondent. The respondent does not, how ever, deny that it recognized the Independent as
the bargaining agency foi its employees in August, 1943.
80 As heretofore found `(footnote 12) Henson was foreman of the plating department.
THE OWATONNA TOOL COMPANY 1443
y`ou can get your time and quit right now". 'Henson replied that he would try
to do better.31 -
On Jul? 27, the respondent posted the following Tool-O-Gram on its bulletin
board :
Tool-O-Gram
RULES & REGULATIONS
JULY 27, 1943
The following rules and regulations relative to Company policy are
effective at once. `
1. PARTICIPATION IN ORGANIZATIONAL ACTIVITIES OF ANY
'KIND ON COMPANY TIME OR PROPERTY, ARE PROHIBTED.
2. NO PETITIONS SHALL BE PASSED ON COMPANY TIME OR
PROPERTY.
3 INEFFICIENCY IS CAUSE FOR DISMISSAL.
4 FAILURE TO REPORT TO WORK WITHOUT NOTICE BEING
DISMISSAL
S 1S CAUSE FOR
5. MERIT AND PROMOTIONAL WAGE INCREASES MUST BE'
HELD STRICTLY CONFIDENTIAL.
6 INSUBORDINATION TO FOREMEN OR SUPERVISORS IS CAUSE:
FOR DISCIPLINARY ACTION OR DISMISSAL32
These rules will be administered fairly, impartially and without dis-
criminatign. Violation of any one is cause for dismissal or other dis-
ciplinary action. '
About the middle of August, Ted Maamun, who as heretofore found had been!
discharged in 1941 but later reinstated in settlement of a union charge of dis-
crimuiation, went to the home of Personnel Director Hertz who was in charge
of employment and the handling of employees' grievances, and requested that he
be given lighter work because of his back injury" Maamun also asked Hertz
why he had not received a raise in pay when others around him were receiving
raises. Hertz, was was a resident of Owatonna but had only been with the
respondent since the previous July 1st„answered, `_'Well, now, you are with this
union 34 and naturally they don't want anything to do with the Union". Hertz'
then added that under the circumstances Maamun could not expect any'favors.
ii About six weeks prior to this incident Henson asked Don Kaplan for it raise Kaplan
answered that because of the wage-freezing formula it would not be possible to give him,
the raise, but that his work was "fine" and that Henson had always done good work
33 General Foreman Soukup testified that Rule 6 applied to insubordination to department
foremen President Kaplan, on the other Band, testified that the insubordination rule
applied only to Soukup,, General Night Foreman Bowman, and Chief Inspector Picliner.
Under all the circumstances the undersigned credits Soukup and discredits Kaplan in this
respect
33 At the time of his reinstatement in 1941 Maamun was put to work on a portable
grinder, which was heavier work than he had been doing prior to that time. In April, 1942,
while :working at the portable grinder be slipped and wrenched his back. ,Thereafter he
consulted and was treated by his own physician for a considerable period The doctor
advised Maamun, and told the latter that lie had informed the respondent, that he would
-often be temporarily laid up because of his weak back unless he was given lighter work.
At the time of the above conversation with Hertz, Maamun was not working because of his
back. _
34 Maamun, at the time was chairman of the Union ' s Owatonna local.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two weeks after this conversation, under his doctor's orders, Maamun quit his
job with the respondent3"
About August 25,tPresident Kaplan accused Clarence' Bailey a6 of responsibility
for a slow working start by the forge department employees that morning."
Bailey denied that he had caused the disturbance and explained that he was not
in the department at the time Whereupon Kaplan said, "Well, you have been
causing plenty of trouble around anyway "' Bailey asked in what respect and
Kaplan replied, "By your union activities." Bailey, denied that he had caused
trouble around the plant and stated that he did not understand why the respond-
ent was "against" him, adding, "I've always clone my work all right, the best that
I could You give the other guys raises and neglected to give me any." Kaplan
answered, "I wouldn't give you a raise if you were the last man in the shop.
After pulling a trick, like that on me " Kaplan then stated that he had helped
Bailey secure a loan when he built his home and that Bailey "turned around and
joined up with the Union to do him dirt", and that Bailey had worked himself
into a good job where he could make "good money" but had thrown it all away
"by joining up with this bunch of racketeers " During this talk with Bailey, -
Kaplan also criticized Clem Snnersh and Dean Winship for belonging to the Union
after he bad taken them in and given them jobs. Smersh joined the Union in
August, 1943. On August 25 he went to President Kaplan to inquire about a
raise in pay. Kaplan told Smersh that he was earning as much as he could get
elsewhere and that he was "disgusted" because Smersh had joined the 'Union.
Paplan also stated at 'this conversation with Smersh that he had helped Dean
Winship 38 and his family out and "look what he done to me,-he joined the
Union."
'In October Smersh, who worked in the forge department but at that time
was temporarily doing' painting work for the respondent, casually met Nets
Christenson, foreman of the forge shop, in a local bar During the course of
their conversation Christenson itold Smersh that if he dropped out of the
as This finding is based upon the unconhoveited testimony of Maamun Hertz was ques-
tioned about Maamun and his resisnation but isas not asked about and did not deny the
above testimony. Maamun testified that he went to Hertz' office to resign • that while
there, during Hert's temporary absence iron his office, lie saw an initialed niemoianchim
addressed to Hertz on the lattQi's desk instructing Heitz to check the union affiliations
of new applicants for iiork i'iraamun could not identify the initials Hertz denied that
he checked the union affiliations of applicants of that he had ever recrived instructions to
that effect Under the circumstances and lacking corroboration of 1\raamun s testimony,
the denial is credited
as As heretofore found Bailey was appointed foreman of the forge department in October
1942, but after the respondent discovered that lie was a member of the union lie was not
thereafter inn ited to the foremen s meetings and Nets Christenson succeeded him as depart-
ment foreman about the middle of August 1943 Bailey joined the Independent on Feb-
ruary 23, but did not pay any dues except for one month
37 The respondent had installed a system of incentive pay above the base rate whereby
if cei tarn jobs Ni ere completed within a specified time those employees ni ho worked on the
jobs could earn a bonus William Zamboni, who wrote some of the Tool-O-Grams from
about May, 1943, also estimated the employees' bonus earnings On the morning in ques-
tion apparently some of the employees in'the forge department were disappomted 'aith,
their bonus earnings and did not go to work promptly. Whereupon Nels Christenson re-
ported the dissatisfaction to Zamboni and, returning to the depaitment, told the mien to go
to work and that Zamboni would explain the payments On this assurance the employees
involved went to work
38 Winship joined the Independent on February 23 at the organizational meeting and
participated in Independent actnnities as late as May 16. The record is silent as to when
he joined the Union
THE OWATONNA TOOL COMPANY 1445
Union n Christenson was sure that President Kaplan would make it worth his
while. The same month Henson, foreman of the plating department 40 casually
met and visited with Nels Christenson in a downtown cafe. During the, course
of the conversation, which was m the presence of Henson's wife, Christenson
said to Henson, "Shorty, if you had a button-a union button, on I would tear
it off and I would stomp on it" Christenson then said that Henson should
get out of the Union and that he could better himself ifhe came "over with
them." Henson replied that he did not think it would do him much good to
come over because the respondent was feeling "pretty hard" towards hum.,
Christenson then offered to take Henson to President Kaplan the next morning if
Henson was willing to get "straightened up out of the other union " Henson
made no answer to this proposal. About the same time of the year 41 President
Kaplan came to Henson at work and said, "Oscar, I heard you made a remark
that there was- no Kaplan big enough to can you " Henson replied, "Well, Rube,
I never said that, but I did say the Independent Union couldn't can me " Kaplan
then ejaculated "So what?" several times and Henson added that lie would try
to do the best he could on the job Whereupon Kaplan used an obscene, dis-
paraging term toward Henson and told bun that if he "wanted to make a man
ouf of himself" lie would resign
4. Employee status of department foremen
As heretofore found, practically all the department foremen joined the Inde-
pendent on or about the time of its inception in February, 1943, and so far as
the record showgs are still members of that organization. In addition, Depart-
went Foremen Drum, Denny, Connell, Krahulec, Wardry, Nels Christenson and
Rasmussen were active in organizing or securing members for it and Drum,
Christenson, and Denny were active in opposition to the Union. The Board
contends and the respondent denies that the department foremen are super-
visors for whose activities the respondent is chargeable.
All he department foremen are required to: (a) see that work that comes
to the department is efficiently and expeditiously handled and that the work is
then passed on to the next department; (b) see that all the men in the
department are supplied with work and, as occasion requires, shift the workers
from one job or machine to another; (c) make ratings as to the efficiency of
the department employees; 42 (d) instruct new employees; (e) attend foremen's
meetings ; and (f) keep up production in the department. While not engaged
20 Smersh Joined the Independent on February 23, 1943, paying one month's dues.
April 6 he was solicited by Donald Thomas for his dues on company time, and at that
time paid two month's dues to the Independent . As previously found, in August Smersh
joined the Union
40 As previously found, Henson had been active in 1937 in attempting to establish an
outside labor organization in the plant Although foreman of the plating depai talent
for about four years by virtue of his seniority, he was not asked to the foremen meetings,
nor did he rate the employees in his department as described in footnote 42 infra.
41 Henson fixed the time as the opening of the duck season in the fall of 1993.
42 In August 1943, the respondent installed a rating-card system whereby the depart-
ment foremen were required to rate on individual, cards each employee in the department.
The record thus made was to be used by the respondent as a basis for raises Because
of its recent installation, the data from these cards had not actually been used up to the
time of the healing However , President Kaplan ' s testimony is credited that the cards
were being prepared and would be used for the above purpose and that the system of
rating thus installed was no different from that which had been employed previously
but simply a more efficient application of the system.
1446 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the above types of supervisory work the foremen work of machines or do
other manual labor the same as the other employees. They receive approxi-
mately the same wages as the other employees 93 None of the department
foremen have direct authority to hire or fire but their recommendations are
given weight, in wage increases, and they are also consulted, on occasion, by
Superintendent Don Kaplan and General Foreman Soukup relative to discharges
or demotions. By virtue of the merit rating system in their control, and by
consultations with higher supervisors, they can effectively recommend changes
in the status of employees in their respective departments. They are regarded
by the employees as representing management." The record indicates that the
amount' of actual supervision exercised by the respective department foremen
varies with the size of their departments and to some extent with the willingness
of individual foremen to accept supervisory responsibilities. It is clear, how-
ever, what functions they were supposed to perform - These functions de-
termined their relationship both to the employees and to management, irrespec-
tive of incidental laxities in the way they were actually performed. The fore-
men's meetings, which had been held over a period of years, and, until July
1943, at the direct call of management, and in which the top executives of the
respondent participated, were constant recognition by the respondent of the fore-
men's status. When this group, reflecting the known anti-union attitude.of the
respondent, inaugurated and sponsored the Independent, in the face of the Union's
organizational campaign, their activities presumpti\ ely suggested to the em-
ployees as a whole that they were acting on the respondent's behalf.45 It is
therefore found that the employee status of the department foremen 10 is-.such
that the respondent is responsible for their activities."
43 Most of the employees are skilled or semi-skilled craftsmen The respondent has
no uniform wage scale but pays each man laccording- to its estimate of his ability and
tries to keep the individual wages paid secret. On the other hand, the oldest man is
ordinarily selected as department foreman As a result there are one or trio instances
where the department foreman's rate is slightly less than a particularly skillful
mechanic in his department. For the most part the foremen receive as much as any
others in the department and, in at least one instance, slightly more The foremen do
not share in incentive earnings on particular lobs or in department bonuses, but do
participate in the average incentive earnings of the entire shop
44 These findings are based upon a reconciliation of the testimony of General Foreman
Soukup, President Kaplan, Personnel Director Hertz, several of the foremen and a
number of the employees.
4' H. .I Heinz Co v N L R B , 311 U. S 514, 521 , International Association of Ma-
chinssts v N L R B, 311 U S 72 - -
46 These department foremen include all the well defined departments in the plant with
the exception of the plating department, headed by Oscar Henson As previously found,
Henson was never invited to foremen's meetings nor did he rate the, employees in his
department. There is some reference in the recoid to the Production Control Department,
headed by William Zamboni, the Drafting Department, headed by Paul Swanson and
the Paint and Woodwork Shop, headed by Al Marek. None of these are actual depart-
ments. The first two are located in' the office Swanson does drafting and is assisted
by two or three'gnls. Zamboni, since May, 1943, assisted by one man, has made time
studies and estimates the incentive or bonus wage earned by the employees While it
is title that prior to May,, 1943, Zamboni prepared some of the Tool1O-Grams which the
respondent distributed, there is no evidence that the employees know lie was the author
of any or these documents Marek had-possibly one employee with him in the Paint and
Woodwork Shop None of the three prepared rating cards No finding is therefore
made that these three are supervisors. '
41N. L. R. B. v. Lsnlc-Belt Company, 311 U. S. 584. In the Matter of C. A. Reed Com-
pany, etc, 53 N L. R B 279 (decided October,30, 1943) In the Matter of Fine Art
Novelty Corporation, etc., 54 N. L. R B 480 (decided Jan. 14, 1944).
THE OWATONNA TOOL COMPANY 1447
B. Concluding findings as to interference and domination
At the time the employees attempted to organize an A. F. of L. Union in 1937,
the respondent, by the speech of President Kaplan, made it clear to the employees,
that it opposed such activities and suggested that the employees form a union of
their own. In the fall of that year, when some of the.employees continued their
union activities, the respondent again emphasized its opposition by laying off
two of these employees. Although it reinstated all but one of them later in the
year and posted a notice to the effect that the employees could join any labor
organization of their own choosing without discrimination, and so instructed its
supervisory staff, it is clear from the record and the respondent's subsequent
attitude, and the undersigned finds, that the respondent reinstated the laid off
employees and posted the notice only to settle the charge of discrimination that
had been filed with the Board against it. It continued in its attitude, as ex-
pressed by President-Kaplan at the hearing, of lack of enthusiasm for any labor
organization among its employees except an inside, unaffiliated labor union.
That the respondent's fundamental opposition to outside labor unions had not
changed was brought home to the employees in 1941 when Ted Maamun was
discharged after lie headed a movement to organize the' Union. Although
Maamun was later reinstated, this also was in settlement of a charge filed that
his discharge was disciiminatory. When interest in the Union continued in
1942 and spread, the respondent, in its Tool-O-Gram, contrasted the "greedy
squabbles of union" leaders with the heroic efforts of our forces in the Philip-
pines. It made inquiries as to the union affiliations of applicants for work in
the plant. When it became known that Clarence Bailey, whom it had recently
appointed foreman of the forge shop, was a member of the Union, theirespondent
ignored him thereafter as a supervisor and later replaced him in that position.
That fall, President Kaplan notified the supervisors in effect that any organiza-
tion among the employees excepting an independent union would be opposed by
the respondent as it did not want the, employees "tied up" with "racketeers" who
would try to run its plant. On February 9, 1943, the Union filed with the Board
a petition for investigation and certification of representatives, after it had
demanded and lad been refused recognition as such representative by the
respondent. A few days later Foremen Denny and Drum urged Russell Dillon to
ask the employees to "forget" the union election that might result from the
petition. Within a week thereafter a movement, headed largely by department
foremen, was inaugurated to start an independent union Some of the depart-
ment foremen as well as other employees thereafter solicited members for it on
company time and property. During this period foremen sought to discourage
the employees' interest in the Union A] Goddard left his night shift work for
an hour and a half to attend an Independent organization meeting without in-
curring loss in pay. At the first meeting of the Independent on February 23,
'Cfiief Inspector Pichner, concededly a supervisor, and practically all, the depart-
ment foremen, herein found to be supervisors, signed its Articles. During the
following spring Department Foreman Everett Rasmussen told his brother-in-law
Oscar Henson. that he had better "get into" the Independent as the respondent
was going to discharge those employees who were not members of that organiza-
tion. Until about May, Donald Thomas, secretary-treasurer for the Independent,
openly solicited dues from employees while they were working. There was some
solicitation for Independent members on company time. In May the respondent
subtly attacked the union's international president in two Tool-O-Grams. Two
1448 / DECISIONS OF NATIONAL LABOR RELATIONS BOARD
r
days after Henson began wearing his union button at work he was unjustifiably
criticized for- "fooling around" In July, after the Independent had .been fully
organized, but the Union was still attempting to secure members, the respondent
posted a notice prohibiting any kind of organizational activities on company time
or property. In August, the respondent renewed its negotiations with the Inde-
pendent for a contract and in the same month refused to grant Maamun an increase
in pay that had been granted some of his fellow employees, or to transfer him to
lighter work, because he was a union member. It accused deposed Department
Foreman Bailey of "causing plenty of trouble" because of his Union activities,
commented adversely to him about the union membership of two other employees.
and refused to let him share in a contemporaneous raise in wages That fall,
President Kaplan abused Henson and suggested he quit his job. In October,
Department Foreman Nels Christenson told Henson he would like to "stomp on"
Henson's Union button and offered to 'take Henson to President Kaplan if he
would leave the Union so that Henson could "better himself." Christenson told
employee Smersh that, if he would drop out of the Union, President Kaplan
would make it worth his while
From the above facts as found, the undersigned is convinced and finds that
the respondent has dominated' and interfered with the formation and adminis-
tration of, and has contributed support to, the Independent. It is further found
that by said acts, and by the various acts of interference and coercion of Union
employees by officials and supervisors above detailed, the respondent has inter-
, fered with, restrained and coerced its employees in the exercise of the rights.
guaranteed in Section 7, of the Act.
C. Discriinanation as to hire and tenure of employment
1. The discharge of Smersh
Clem Smersh, as heretofore found, joined the Union in August 1943. He was
criticized for so doing by President Kaplan, and Department Foreman Christen-
son tried to get him to resign. Smersh first came to the respondent in February
1942 in the assembly room at 35 cents an hour. Later he did trucking and then
general utility work. Although none of these jobs were promotions, his pay
was increased at regular intervals.98 About July 1943, when he was earning
60 cents an hour, he was made assistant to Chief Inspector Pichner. As he
was also a painter by trade, the latter part of October 1943 he was taken off
the inspection work and instructed to renovate the inside of the various depart-
ments in the plant. This renovation consisted of whitewashing the side walls
of the various rooms and painting any woodwork.
About November 15, Smersh had about completed this work in all the depart-
ments except the flame cutting department, the machine roomy and Superintend-
ent Don Kaplan's ofhce,whieh was located in the plant proper. At that time
General Foreman Soukup told Smersh that he was to work next in the flame
cutting department. This department is located in a large room which contains
a gas furnace for heating iron and steel blocks, a large and small flame cutting
machine,4D and a number of portable grinding machines. At the time of the
above conversation both Soukup and Smersh were in the flame room and Smersh
called the foreman's attention to smoke being blown by the dust collector to
the ceiling where he would have to start the whitewashing. Soukup replied'
that the smoke was bound to come to the ceiling, but that it would- amount
48 Smersh benefited by 4 pay increases , two of which were individual'raises in pay.
49 A dust' collector was attached to the small flame cutter for the purpose of removing
dust and fumes.
THE OWATONNA TOOL COMPANY 1449
I
to nothing as Smersh would be working on the walls: Smersh then responded,
"0. K." On the morning of the 16th Smersh, having completed all but the
three rooms above,meiitioned, secured permission from Soukup to next white-
wash Don Kaplan's office. While working- in the office on the 16th, Smersh
complained to Paul Swenson that he considered it dangerous for him to white-
wash in the flame cutting department because of the gas therein. Swenson
made no response to this comment." On November 18, although his renovating
work in the office was unfinished, Smersh was instructed by Don Kaplan to
leave that work and proceed to whitewash the walls in the flame room. When
Smersh went to the flame cutting department to carry out these instructions, he
found that the- two flame cutters and the gas furnace were in use but the dust
collector was burned out and not in use. Srnersh asked Don Kaplan, who came
into the room, if he would turn off the gas furnace, as it was "dangerous up there
next to the ceiling" with the furnace going Kaplan refused the request, where-
upon Smersh refused to whitewash the room. Kaplan then told Smersl%, "Get
your coat. You are all through Anybody that don't take orders is certainly
through working for us " Kaplan then took Smersh's badge and the latter
walked over to the company office to secure his pay check. While waiting for
the check in the assembly room, which adjoins the office, President Kaplan came
through that department. Kaplan said to Smersh, "What is the matter, Clem?"
Smersh explained that he had been ordered to-whitewash in-the flame cutting de-
partment and, as it was "dangerous in there," he had refused to do so. Kaplan
replied,'"Yes, it is dangerous in there." Nothing further was said and after
Smersh had been given his pay check he left the plant. He has not since been
recalled.
During the summer of 1943, Srnersh had been told by employees Earl Nissen
and Harvey I10-gate of 'the flame cutting department that the gas fumes gave
them headaches and otherwise affected them. There is other testimony, herein
,credited, of employees who worked in this department, that the gas fumes, 'par-
ticularly when the gas furnace was going, seriously affected them. Thus Russell
Dillon, who worked off and on in this department for a year and a half, testified
that he was bothered by the gas fumes and dust to such an extent that on his
doctor's orders he was transferred in October, 1943,- to another department.
Harvey Hogate, who worked in the flame department from February to August,
1943, testified that he was transferred at his request because the fumes and dust
caused him to "choke up " There is other credited testimony that the fumes
were stronger in the room when the furnace was running, and were worse near
the ceiling. The furnace was being used on November 18 to prepare a supply
of steel blocks for use in the plant. Ordinarily a two weeks supply of blocks
was made and in the meantime the furnace would not be used. On November
18 the usual two weeks supply had not been completed. If the furnace had been
shut off as requested by Srnersh, it would have remained idle for about halfla
'day while he whitewashed the upper portion of the walls. The one man oper-
ating the furnace could have done other work and, as there was a supply of blocks
on hand for more than that short period, it would not have interfered with the
other work in the plant.
A few days after November 18, the small flame cutter was moved closer to the
large one and a ventilating arrangement attached to both, which adequately
removed from the room any gas or dust created by either when in operation.,
About a week later another employee whitewashed the room while the furnace
60 As heretofore found, Swenson , a draughtsman , had a desk in the superintendent's
office. He was not a supervisor . Smersh ' s comment indicates that he was not looking
forward with enthusiasm to working in the flame cutting, department.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not in operation. There is evidence that' about a day or two prior' to
November 18 a representative of the Minnesota State Industrial Commission
visited the respondent for the purpose of checking the amount of fumes and
smoke in the plant.`'
2. Kenneth R Sette
Sette began working for the respondent in March 1941 in the steel room. He
later worked in the machine shop and about the fall of 1942' was transferred to
the forge department, where he worked with Arnold Mauseth on one of the four
large mechanical hammers. In August of 1943, while working in the forge
department Sette was overcome by the heat and was transferred to the steel
room temporarily. ' About September lie was returned to the forge department.
At' that time Personnel Director Hertz put Sette on a different hammer than
lie had, previously worked and told him that as, long as he was 4-F 62 he "would
have to buckle down and' really get to work." -In early November General Fore-
man Soukup again temporarily tiansferred Sette to the steel room because the
material then being handled was light weight and did not require the services
of two men per hammer. It was the usual practice to take one man off' the
hammers temporarily under such circumstances. Thereafter Sette did some
work in the steel room, but most of his work consisted of hauling and unloading
material, and general work. He was not attached to any department and, while
his base pay remained the same, he did not share in the production bonus of the
forge department " As a result his weekly pay check' was $4 or $5 less than
it would have been had he remained in the forge department.
About November 20 the forge department resumed its normal operations
requiring the services' of two men on the mechanical hammers. Another man
junior to Sette was assigned to work Sette had formerly been doing. On '
November, 21, Sette went to Hertz and inquired why he had not, been returned
to his forge work. Hertz told Sette that 'he did not know, but that he would
find out Later the same day Hertz sent for Sette and the following took place
as testified by Sette:
He [Hertz] said he had talked to Bailey [Soukup] and Don [Kaplan] and
Nels [Nels Christenson, foreman of the forge department] and they told
him that the reason I was removed from the forge shop.was that I was
loafing on the job, wasn't doing my,work, and unless they watched me all
the time I wouldn't get my day's work done. Nels Christenson told him.
I asked him what Bailey Soukup and Don told him, and he said they con-
firmed Nels Christenson's opinions, and he asked me what I had to say for
myself and I said, nothing, I asked him [you] a question and you gave me
an answer, and I walked out, and that was all that was said.
,Sette's starting wage with the respondent was 30 cents an hour. Thereafter
he shared in two general wage increases and was also the beneficiary of four,
small individual increases. In the fall of 1943 he was receiving a base pay of
75 cents an hour and shared in the production bonus rate applicable to the forge
department while working therein. On one occasion in the summer of 1943,
51, The respondent -developed the testimony relative to the inspection by cross-examina-
tion. It did not produce any other evidence thereon. It is a reasonable inference , herein
drawn, that the later improvements were the result of this inspection.
ca In October Sette was classed 4-F by his'local draft board. Prior to that he had been
deferred twice as essential to the respondent's operations.
93 As previously found, a production rate was fixed for the forge department, as well as
other departments. If the rate during a given period was made, it entitled all doing
straight production work in the department to benefit by a bonus for all additional pro-
duction during ,that period in the'department. -
THE OWATONNA TOOL COMPANY
0
1451
while handling hot steel in the forge department Sette accidentally burned a
fellow employee. Burnings of this kind were not unusual because of the
close working quarters. Sette had received burns in a similar manner. He
wad not criticized at the time because of this burning incident, and no mention
was made of it by Hertz on November 21, when he told Sette the reason the
latter was not being returned to the forge department. Prior to November 21
Sette had never been criticized for loafing"
About the end of November, 1943, after the first hearing, Sette was working for
Harlan Denny, foreman' of the steel department. He was instructed to remove
ice that had accumulated on some steel on the loading platform. He com-
pleted this job a few minutes before the noon lunch period and brought his
shovel and pick, Tito the department. Soukup saw Sette and the following
conversation took place, as testified to by Sette.
He said if, I didn't work right up to the whistle, he would get me my
check. I, said he must have misunderstood me. I will work up to the
whistle but I didn't have any orders to do any other work and, I was
going to see Harlan and didn't get that far. He said I will get your check
right now. I said that I didn't want the check. He said, alright, watch
it. That was all that was said. -
In February, 1943, Sette joined the Independent, and thereafter attended three
of its meetings. He joined the Union in August, 1943. At the first hearing his
testimony was largely confined to a description of the duties of Department
Foreman Christenson and Denny "'
D. Conclusions l elative to disci imination
The amended complaint alleges, and the answer denies, that the respondent
discharged Smersh and demoted Sette, because of their union membership and
activities, and because each gave testimony under the Act. After the Board had
presented evidence at the reopened hearing in support of the above allegations
the respondent offered no evidence in defense thereof but took the position that
the evidence received failed to sustain these allegations in the amended com-
plaint.
Theie is no contention that Smersh was not a competent, experienced em-
ployee. He was discharged ostensibly because he refused to obey instructions,
and whitewash the flame room. The respondent was certainly entitled to dis-
miss an employee for refusing to obey a legitimate order. In view'of the renovat-
ing work in which Smersh was temporarily engaged, the order for him to
work in the flame room was probably legitimate, but the timing and other cir-
cumstances surrounding the order were such as to cause grave suspicion as
to the respondent's motives. On November fS, one day after the original hearing
closed at which Smersh had given damaging testimony against the respondent,
he was ordered to take the unusual course of abandoning Don Kaplan's half
"Due to the heat stroke Sette was not in the forge department on August 25 when the
morning slow down occurred, heretofore referred to. -
' "T At the first hearing Sette also testified, and the undersigned finds, that for 3 days lie
substituted on Lawrence Stockwell's hammer, while the latter was away ; that prior to that
time Stockwell had been talking and criticizing because the department production rate
was so high that he could not get above it and thereby earn the department bonus ; that
when Sette took over the hammer temporarily Department Foreman Christenson came to
him and said, "Well, you want to'go fast all day today because you rant to show Stockwell
that a bonus can be made on that job" ; that to help in the showing Christenson allowed
Sette and his helper a half hour to grease the machine, although they only used ten
minutes ; that by being allowed the extra time for greasing he and his helper made a larger
bonus that day than they otherwise would have been able to do.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finished office and to begin work in the flame cutting department at a time when
the two flame cutters and the furnace, as well as the grinders, were in use.
With the lack of ventilating facilities the gas fumes physically affected the
department employees and had made at least one of them ill. Smersh knew
that these fumes were stronger near the ceiling, and were enhanced when the
furnace was going. Before complying with the instruction, Smersh requested
Don Kaplan to order the gas furnace turned off for about a half day while he
whitewashed the tops of the walls, stating that it would be dangerous otherwise.
The request was denied. When he refused to whitewash the walls under the
conditions then existing, he was summarily discharged.
It is true that General Foreman Soukup had notified Smersh about November
15 that his next whitewashing job would be in the flame cutting department,
but the evidence is uncontradicted that the day following receipt of this instruc '
tion Smersh was permitted by Soukup to start work on the superintendent's
office. Furthermore, he had not completed that job on November 18 when or-
dered into the flame cutting department by Superintendent Kaplan. It may
be that the respondent could have shown a good reason for the change in Sinersh's
orders but it did not do so.
While the furnace was.being used at the time to make the large steel blocks
necessary in the plant's production, and the usual two weeks supply had ap-
parently not been reached, there were more than enough blocks on hand to supply
the needs of the plant for the short time necessary for Smersh to whitewash the
tops of department walls That the whitewashing of the flame cutting depart-
ment on November 18 was not imperative seems clear from the fact that this
work was not actually done until over a week later. If Superintendent Kaplan
had complied with Smersh's request and closed off the furnace temporarily, it
would in no way have inconvenienced the respondent or its production program.
The testimony of other credible witnesses and the fact that the department walls
were whitewashed later when the, furnace was not being used corroborate
Smersh's testimony that it would have been dangerous for him to whitewash
near the ceiling while the furnace was going.
The undersigned therefore is of the, opinion and finds that the refusal of
Smersh to work in the flame room when the gas furnace was operating was not
unreasonable and was based upon a justified fear that otherwise the whitewashing
near the ceiling would be dangerous to him. It is further found in the light
of the entire record that this refusal of Smersh was not the real reason for his
discharge, but was merely a pretext, and that the real reason therefor was be-
cause of his union activities and because he had testified as a Board's witness
under the Act in the original hearing herein.
When Sette complained because he bad not been returned to his original work
in the forge department, he was informed by the personnel director that he had
not been so reinstated because lie had previously loafed on the job in that depart-
ment. From March 1941 to NoN ember 1943, Sette had worked up from 35 cents
an hour to 75 cents an hour basic pay. He had been employed in the forge
department almost continuously for a year prior to early November 1943, and
his work had been in no way criticized Personnel Director Hertz' statement
to Sette in October in returning him to the forge department after'he had been
given work in the steel room for a few weeks because of a heat stroke, that, as
Sette was now classed as 4-F by the'draft board, he "would have to buckle down
and really get to work," can not be considered a criticism of Sette's work, but
rather a comment that his previous uncertain status as a permanent employee
because of the draft had now been settled.' Furthermore, it is noted that the
previous summer the forge department foreman had used Sette to demonstrate
THE OWATONNA TOOL COMPANY 1453
to another employee that the department production quota was not fixed so high
that the employees could not earn a bonus. Foreman Christenson would not
have selected Sette for this demonstration if the latter had been loafing on the
job. When transferred out of the forge department in November, Sette was in-
formed by the general foreman that the ti ansfer was temporary and because
two men were not needed on the mechanical hammers. This was not unusual.
No criticism of his work was even hinted at that time.
The first intimation Sette had of any dissatisfaction with his work was the
report by the personnel director, in response to his inquiry, that Superintendent
Kaplan, General Foreman Soukup, and forge department Foreman Christenson
had stated Sette had not been returned to the forge department because he had
previously loafed and required constant watching in that department to get his
work out. In this connection it is noted that apparently the personnel director
knew of no explanation of the failure to reinstate Sette when first approached
on the subject. In response to Hertz' question as to what he had to say for'
himself, after Hertz had reported the result of his interviews with the other
,supervisors, Sette answered, "nothing, I asked him [you] a question and you
gave me an answer." This answer can hardly be construed under the circum-
stances as an admission by Sette that he had actually been loafing, or even that
he had prior knowledge of the criticism.
In the light of Sette's previous good record with the respondent and the failure
to prove any criticism of his work prior to November 21, it is found that the
statement to him by the personnel director on November 21 that he was not being
reinstated to his former fork because he had loafed on the job was unfounded
and a mere subterfuge ; that the real reason was because Sette was a member of
the Union and had testified under the Act.
It is therefore found that the respondent by discharging Smersh on November
18 and refusing to reinstate him, and by refusing on November 21 and since
to reinstate Sette to his former work, discriminated in regard to the hire and
tenure of employment of each of them, thereby discouraging membership in
the Union, and by such action has interfered with, restrained and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
IV.-THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent 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
Since it has been found that the respondent has engaged in certain unfair
labor practices, the undersigned will recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the respondent dominated and interfered with the In-
dependent and contributed support to it. In order to effectuate the policies
of the Act and free the employees of the respondent from such domination and
interference, and the effects thereof, which constitute a continuing obstacle
to the exercise by the employees of rights guaranteed them by the Act, it will
be recommended that the respondent refrain from recognizing the Independent
as the representative of any of its employees for the purpose of dealing with the
respondent concening grievances, labor disputes, wages, rates of pay, hours
587784-45-vol. 56-93
N
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'of employment, and conditions of work. and to disestablish the Independent
as such representative.
It has been found that We respondent discriminated in regard to the terms
and conditions of employment of Clem Smersh and Kenneth Sette. It will. be
recommended that the respondent reinstate them to their former or substan-
tially equivalent positions without prejudice to their former rights and privileges,
and make them whole for any loss of pay they may have suffered by reason
of the discharge',of Smersh and the demotion of Sette, by payment to Smersh
.of a sum of money equal to the amount he would have earned as wages from
November 18, 1943, to the date of the offer of reinstatement, less his net earnings
during said period ; 6e and by payment to Sette of a sum of money equal to that
which he normally would have earned from November 21, 1943, the date of the
refusal to reinstate him to his former work, to the date of the offer of reinstate-
ment, less the sums received by him from the respondent' for • other work during
said period.
Although it has been found that the respondent demoted Bailey from-depart-
ment foreman because of his union affiliation, no recommendation is made in,
this respect inasmuch as there is no allegation in the complaint to the effect
that such 'action constituted an unfair labor practice. Furthermore, Bailey
has not suffered financially by reason-of the demotion, nor has he requested that
he be reinstated to his former position as foreman of the forge department.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following :
'CONCLUSIONS OF LAW
1. United Construction Workers Division of District 50, U. M. W. A., and
Tool Manufacturers Independent Union of Owatonna, are labor organizations
within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration of
the Tool Manufacturers Independent'Union of Owatonna, and contributing sup-'
port to it, the respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (2) of the Act.
3. By discriminating in regard to the terms and conditions of employment
of Clem Smersh and Kenneth Sette, thereby, discouraging membership in United
Construction Workers Division of District 50, U. M. W. A, the respondent has
engaged in and is engaging in unfair labor practices within ,the meaning of
Section 8 (3) of the Act.
4. By discriminating against Clem Smersh and Kenneth Sette because they
,gave testimony under the Act, the respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (4) of the Act
5. By interfering with, restraining and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act. . ,
ca 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 unlawfu,a
discharge and the consequent necessity of his seeking employment elsewhere See Matte'
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners o
America, Lumber and Sawmill Workers Union, Local 2590; 8 N. L. R. B 440. Monies
received for work performed upon Federal, State; county, municipal, or other work-relict
projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R' B.,
311 U. S. 7. '
THE OWATONNA TOOL COMPANY 1455
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the' basis of the foregoing findings of fact and conclusions, of law, the
undersigned recommends that The Owatonna Tool Company, Owatonna, Minne-
sota, its officers, agents, successors and assigns shall:
1. Cease and desist from :
(a) In any'manner dominating or interfering with the formation or ad-
ministration of or contributing financial or other support to Tool Manufacturers
Independent Union of Owatonna, or any other labor organization of its employees;
(b) Recognizing the Tool Manufacturers Independent Union of Owatonna as
the representative of its employees for the purpose of dealing with the re-
spondent concerning grievances, labor . disputes, wages, rates of pay, hours of
employment, or other conditions of employment ;
(c) Discouraging membership in United Construction Workers Division of
District 50, U. M. W. A., or any other labor organization of its employees, by
discrimination in regard to hire or tenure of employment or any term or condi-
tion of employment ;
(d) Discharging, demoting, or otherwise discriminating against any em-
ployee because be has given testimony under the Act ;
(e) In any other manner interfering with, restraining or coercing its em-
ployees in the exercise of the rights to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection as guaranteed in Sec-
tion 7 of the Act.
2. 'Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Refrain from recognizing the' Tool Manufacturers Independent Union
of Owatonna as the representative of any 'of its employees for the purpose of
dealing with the respondent concerning grievances, labor disputes, wages, rates
of pay, hours of'employment or other conditions of employment, and completely
disestablish the Independent as such representative;
(b) Offer to Clem Smersh and Kenneth Sette immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to
their seniority or other rights and privileges ;
(c) Make whole Clem Smersh and Kenneth Sette for any loss of pay they
have suffered by reason,of the discrimination against them, by payment to each
of them of a sum of money equal to an amount determined in the manner set
forth in the section above entitled "The remedy" ;
(d) Post immediately, in conspicuous- places in its plant in Owatonna, Min-
nesota, and maintain for a period of at least sixty (60) consecutive clays from
the date of posting, notices to its employees stating: (1) that the respondent
will not engage in the conduct from which it is recommended that it cease
and desist in paragraph 1- (a), (b), (c), (d), and (e) hereof; (2) that the
respondent will take the affirmative action set forth in paragraph 2 (a), (b),
and (c) of these recommendations; and (3) that the respondent's employees
are free to become and remain members 'of the United Construction Workers
Division of District 50, U. M. W. A., or any other labor organization of its
employees ;
1456 DECISIONS OF NATIONAL , LABOR RELATIONS BOARD
(e) Notify the Regional Director for the Eighteenth Region in writing within
ten (10 ) days from the receipt of this Intermediate Report- what steps the
respondent has taken to comply herewith. -
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report the respondent notifies said Regional Di-
rector in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National ' Labor Relations Board, Series 3, effective November 26, 1943, any
party or counsel for the Board may within fifteen ( 15) days from the date of the
entry of the order transferring the ease to the Board , pursuant to Section 32
of Article II of said Rules and Regulations , file with . the Board , Rochambeau
Building, Washington , D. C., an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report, or_ to any
other part of the record or proceeding ( including rulings upon all motions or
objections ) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of
exceptions 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 within ten ( 10) days from the date of the order
transferring the case to the Board.
Dated March ,7, 1944.
J. J. FITZPATRICK
'Trial Examiner