United Aircraft Manufacturing Corp.

National Labor Relations Board - Board Decisions

Feb 21, 1936

1 N.L.R.B. 236 (N.L.R.B. 1936)

In the Matter Of UNITED AIRCRAFT MANUFACTURING CORPORATION and
INDUSTRIAL AIRCRAFT LODGE No. 119, MACHINE, TOOL AND FOUNDRY
WORKERS UNION
Case No. C-31.-Decided February 21, 1936
Aircraft and Parts Industry-Strike: stoppage of work-Discrimination: dis-
charge-Reinstatement Ordered-Back Pay: awarded.
Mr. Malcolm F. Halliday and Mr. Ralph H. Cahouet for the
Board.
Shipman d Goodwin, by Mr. George H. Day and Mr. Waif rid G.
Lundborg, of Hartford, Conn., for respondent.
Mr. Julius W. Schatz and Mr. Arthur D. Weinstein, of Hartford,
Conn., for the Union.
Mr. Fred. G. Krivonos, of counsel to the Board.
DECISION
STATEMENT OF CASE
Charges and amended charges having been duly filed by Industrial
Aircraft Lodge No. 119, Machine, Tool and Foundry Workers Union
(hereinafter termed the union), the National Labor Relations Board,
by its agent, the Regional Director for the First Region, issued and
duly served its complaint, dated November 6, 1935, against the United
Aircraft Manufacturing Corporation, the respondent herein.
The complaint, as duly amended by the Trial Examiner, alleges,
in substance, as follows :
That the respondent, a corporation organized under the laws of
Delaware, with its principal office and place of business in East Hart-
ford, Connecticut, is engaged and has since June 29, 1935, continu-
ously been engaged at its Pratt and Whitney Aircraft and Hamilton
Standard Propeller Divisions in East Hartford, Connecticut, in the
production, sale and distribution of airplane motors, propellers and
parts, and causes and has continuously caused materials used in its
production to be purchased and transported in interstate commerce,
and causes and has continuously caused the airplane motors, propel-
lers and parts produced by it to be sold and transported in interstate
and foreign commerce, all constituting a continuous flow of trade,
236
DECISIONS AND ORDERS 237
traffic and commerce among the several states and with foreign
nations;
That the respondent on September 16, 1935, discharged or laid off'
for an indefinite period or severed the employment of, and at all
times since that date has refused to reinstate, 28 of its employees,.
namely, Raymond Joanis, Peter Hopwood, Lawrence Foley, (Joseph)
Ovilla Champaigne, John Carlson, Axel G. Benson, Carl L. Brett,.
Frank Hertel, Henry J. Descy, William L. Litscher, Frank Wendt,
James Fitzpatrick, Basil La Breche, Francis Welch, Guy Williams,.
George Peters, John Daj da, Herbert A. Wheelock, John H. Cronin,
Lawrence Lang, Francis Doucette, Harold Wilson, Joseph King, Pia
Abattee, George Demers, Frank W. Treybal, John Mylek and William.
M. Hamilton, for the reason that they joined and assisted a labor
organization known as the Industrial Aircraft Lodge No. 119, Ma-
chine, Tool and Foundry Workers Union, and engaged in concerted
activities with other employees of the respondent for the purpose of
collective bargaining and other mutual aid and protection, thereby
engaging in unfair labor practices within the meaning of Section 8,
„subdivisions (1) and (3) of the National Labor Relations Act;
That the unfair labor practices of the respondent have led and
tend to lead to labor disputes affecting commerce -as defined by
the Act.
In its answer, in substance, the respondent admits that it is a cor-
poration organized under the laws of the State of Delaware, hav-
ing its principal office and place of business in East Hartford, Con-
necticut, and that it is now and has since June 29, 1935, continuously
been engaged at its Pratt and Whitney Aircraft and Hamilton Stand-
ard Propeller Divisions in East Hartford, Connecticut, in the pro-
duction, sale and distribution of airplane motors, propellers and
parts. But the respondent denies that in the purchase and trans-
portation of materials used in its production and in the sale and
distribution of its products it is engaged in interstate commerce as
alleged in the complaint.
The respondent admits that on September 16, 1935, it discharged
or that it laid off or severed the employment of, and at all times since
that date has refused to reinstate, the 28 employees named above.
But the respondent denies that it discharged or laid off or severed
the employment of or refused to reinstate the above-named indi-
viduals for the reason that they joined and assisted a labor organ-
ization and engaged in concerted activities with other employees of
the respondent for the purpose of collective bargaining and other
mutual aid and protection thereby engaging in unfair labor prac-
tices within the meaning of Section 8, subdivisions (1) and (3) of
238 NATIONAL LABOR RELATIONS BOARD
the National Labor Relations Act. The respondent also denies that
the acts alleged in the complaint constitute unfair labor practices
which have led and tend to lead to labor disputes affecting commerce
as defined in the Act.
Pursuant to notice of hearing, the Trial Examiner, as agent of the
National Labor Relations Board, conducted a hearing commencing
on November 20, 1935, at the Federal Building, Hartford, Connecti-
cut. The respondent and the union appeared by counsel and par-
ticipated in this hearing. The Board was also represented by counsel.
During the course of the hearing, the respondent moved to dis-
miss the complaint on the grounds that the National Labor Relations
Act is unconstitutional. The motion was denied. A further motion
was made during the hearing by counsel for the union, that eight
names be stricken from the complaint, whereupon, pursuant to
Article II, Section 14, of the Rules and Regulations-Series 1, the
complaint was dismissed as to Peter Hopwood, Lawrence Foley, John
Carlson, Herbert A. Wheelock, John H. Cronin, Pio Abattee, John
Mylek and James Fitzpatrick.
As considered by the Trial Examiner and presented before this
Board, pertinent allegations of the aforesaid complaint involve 20 of
the respondent's employees, as follows :
Employment severed and reinstatement refused, Axel G. Benson,
Carl L. Brett, Frank W. Hertel, Henry S. Descy, William L.
Litscher, Frank Wendt, Guy Williams, George Peters, John Dajda,
Basil La Breche, Francis Welch, all employed at the Pratt and
Whitney Division, and Lawrence Lang, Harold K. Wilson, Francis
Doucette, William M. Hamilton, Frank W. Treybal, Joseph King.
George Demers, all employed at the Hamilton Standard Propeller
Division; discharged or laid off and reinstatement refused, Raymond
Joanis and (Joseph) Ovilla Champaigne, both employed at the
latter Division.
Full opportunity to be heard, to cross-examine witnesses and to
produce evidence bearing upon the issues was afforded all parties.
Upon the record thus made, the stenographic report of the hearing
and all evidence, including oral testimony, documentary and other
evidence offered and received at the hearing, the Trial Examiner, on
December 20, 1935, filed an intermediate report, finding and conclud-
ing in substance that the respondent, in the course and conduct of its
business, caused and is causing a considerable and substantial portion
of its raw materials and its finished products to be purchased, sold
and transported in interstate and foreign commerce; that the re-
spondent had committed unfair labor practices in violation of Sec-
tion 8, subdivisions (1) and (3) of the Act in severing the employ-
DECISIONS AND ORDERS 239
Inept of and refusing to reinstate 18 of its employees, other than
Joanis and Champaigne, named above; and that such unfair labor
practices constitute unfair labor practices affecting commerce within
the meaning of Section 2, subdivisions (6) and (7) of the Act. The
Trial Examiner recommended the reinstatement of these 18 em-
ployees to their former positions with back pay. He also found the
evidence insufficient to support the allegations in the complaint con-
cerning Joanis and Champaigne, named above, and recommended the
dismissal of the complaint in, respect to them.
On exceptions to the intermediate report, duly filed by the respond-
ent, an oral argument on the record was held before this Board in
Washington, D. C., on January 22, 1936, pursuant to Article II,
Section 34 of said Rules and Regulations.
We find that the evidence supports the Trial Examiner's rulings,
findings and conclusions. We find nothing in the respondent's ex-
ceptions to the intermediate report, which are discussed below, or in
the respondent's argument at the hearing before this Board, requir-
ing any material alteration of such findings and conclusions. Upon
the entire record in the case, we make the following :
FINDINGS OF FACT
A. THE RESPONDENT AND ITS BUSINESS
I. (a) The respondent, United Aircraft Manufacturing Corpora-
tion, is and has been since June 29, 1935, a corporation organized
under and existing by virtue of the laws of the State of Delaware.
having its principal office and place of business in East Hartford,
Connecticut. The respondent is a subsidiary of the United Aircraft
Corporation and owns and operates five Divisions known as Pratt
and Whitney Aircraft, Hamilton Standard Propeller, Chance-
Vought, Sikorsky Aircraft, and United Airports of Connecticut.
These five Divisions prior to June 29, 1935, were corporations and
subsidiaries of United Aircraft Corporation, but on that date con-
solidated and became Divisions of the respondent.
(b) The United Aircraft Corporation was created in June, 1934,
one of three corporations set up on the dissolution of the United Air-
craft and Transport Corporation, organized in 1928. The latter
owned a large number of subsidiaries spanning the United States and
Canada, operating manufacturing and equipment plants and com-
mercial transportation airlines: The other two corporations created
upon the dissolution are the United Airlines Transport Corporation
and the Boeing Airplane Company. The United Airlines Transport
Corporation has its main office in Chicago, Illinois, and is a commer-
240 NATIONAL LABOR RELATIONS BOARD
.cial transportation company, carrying passengers, mail and express
between the east coast to the west coast of the United States. It ac-
,quired the stock of various subsidiaries of the old United Aircraft
and Transport Corporation when that corporation was dissolved.
The Boeing Airplane Company is located in Seattle, Washington, and
is engaged in the manufacture of airplanes. The United Aircraft
Corporation acquired the stock of various of the subsidiaries of the
old United Aircraft and Transport Corporation, which subsidiaries
are located in the eastern sections of the United States, including the
Divisions of respondent which were at that time separate corporations.
When the United Aircraft and Transport Corporation was dissolved
and the three new corporations set up in its stead, the stockholders
,of the old corporation received stock in each of the three corporations,
and the assets of the old corporation were to be divided among the
three new corporations. The work of the old United Aircraft and
Transport Corporation, with its various subsidiaries, is now carried
on by the three new corporations and their subsidiaries; as specified
above, the respondent is a subsidiary of one of these three new cor-
porations, the United Aircraft Corporation.
II. (a) The respondent leads the world in the production of air-
planes, airplane engines, airplane propellers, and parts. Its Pratt
.and Whitney Division is one of the largest manufacturers of airplane
.engines and engine parts in the world, and is the largest earner and
has the largest number of employees of all the Divisions. The pro-
pellers manufactured by the respondent at its Hamilton Standard
Propeller Division are used more than those of any other propeller
manufacturer. The aircraft engines and parts and propellers manu-
factured by the respondent at its Pratt and Whitney and Hamilton
Standard Propeller Divisions are purchased and used extensively by
the United States Army and Navy, and by practically all of the
domestic commercial airlines. Foreign governments and foreign com.
mercial airlines likewise purchase and use Pratt and Whitney engines
and parts and Hamilton Standard propellers. A considerable pro-
portion of the materials and finished and unfinished parts used in
the production of the respondent's airplane engines, parts and pro-
pellers at its Pratt and Whitney and Hamilton Standard Propeller
Divisions is purchased, sold and transported in interstate commerce
from and through states of the United States other than the State of
Connecticut, to the Divisions in East Hartford, Connecticut, where
the materials and unfinished parts are finished and together with
the completed parts are assembled into airplane motors and parts and
airplane propellers, and a substantial portion of these is then trans-
ported in interstate and foreign commerce from East Hartford, Con-
necticut, to, into and through states of the United States other than
DECISIONS AND ORDERS 241
the State of Connecticut, and to, into and through foreign nations to
its various customers described above.'
(b) The respondent, after assembling its airplane engines, propel-
lers and parts at its Pratt and Whitney Aircraft and Hamilton
Standard Propeller Divisions, makes shipment of motors, parts and
propellers to the Boeing Airplane Company at Seattle, Washington,
which motors, parts and propellers are installed in airplanes manu-
factured by the Boeing Airplane Company, and are used by the
United Airlines and Transport Company for the transportation of
passengers, mail and express.
(c) The engines and parts manufactured at the Pratt and Whitney
Division of the respondent are manufactured, generally, after orders
have been received from the respondent's various customers, govern-
mental and private. Propellers and propeller parts manufactured at
the respondent's Hamilton Standard Propeller Division are manu-
factured and assembled as ordered by the United States Government.
Propeller parts, blades and hubs, other than for government orders,
are manufactured for stock, the manufacturing schedule and inven-
tory being based on a sales forecast dependent upon orders on hand
and prospective orders, based on experience; the propellers are as-
sembled to supply orders from customers. Motors, propellers and
parts manufactured by respondent are inspected at its plants by gov-
ernment officials and are packed and labelled by the respondent's
employees for shipment, mainly to Army and Navy depots and other
destinations outside of the State of Connecticut.
l According to testimony and exhibits in the record, the respondent's business in its
Pratt and Whitney and Hamilton Standard Propeller Divisions, from July 1, to October
31, 1935, was as follows :
Pratt and
Whitney
Hamilton
Standard
Propeller
Purchases,
In Connecticut ---------------------------------------------------------- $717, 826 $136, 434
In other states---------------------------------------------------------- 11,099,493
2 230, 767
Sales
In Connecticut 3--------------------------------------------------------- 1,006,286 198, 018
In other states
----------------------------------------------------------
1,810,655 613,293
Foreign 5-------------- ------------------------------------------------ 5250,000 E 169,000
i 16 states.
a 13 states ; 1 foreign country
These records of sales in Connecticut include motors , propellers and parts delivered
on order to respondent 's Chance-Vought, Sikorsky and other divisions and wholly owned
subsidiaries , located in Connecticut , for assembly into airplanes which are transported in
interstate and foreign commerce on completion These transactions amount to approxi-
mately $475 ,000 in motors and parts so delivered on order by the Pratt and Whitney
Division and $150 ,000 in propellers and parts so delivered by the Hamilton Standard
Propeller Division
4 For both divisions . sales in 26 states ; Canal Zone ; Canada ; and "various" for Army
and Navy.
Sales from July 15, to September 15, 1935, in name of United Aircraft Export Cor-
poration , a wholly owned subsidiary of respondent.
6 Approximate.
242 NATIONAL LABOR RELATIONS BOARD
(d) The respondent's Chance-Vought Division is adjacent to the
Pratt and Whitney Aircraft and Hamilton Standard Propeller Divi-
sions in East Hartford, Connecticut. At the Chance-Vought Division,
the respondent manufactures observation airplanes which are pri-
marily purchased and used by the United States and foreign govern-
ments. The respondent's Sikorsky Aircraft Division is located at
Bridgeport, Connecticut, at which Division respondent manufactures
multi-motored amphibian airplanes and flying boats, generally pur-
chased and used by commercial airlines. The Chance-Vought and
Sikorsky airplanes are equipped with motors and propellers manu-
factured and transported from the Pratt and Whitney Aircraft and
Hamilton Standard Propeller Divisions, respectively. The respond-
ent's United Airport of Connecticut Division operates Rentschler
Field adjacent to the Pratt and Whitney Aircraft and Hamilton
Standards Propeller Divisions at East Hartford, Connecticut. The
field is used by the respondent as an experimental ground to test its
various products and is also used by the American Airlines, a com-
mercial transportation company, as a landing field for depositing
and taking on passengers, mail and express, and for servicing pur-
poses. The respondent at its United Airport of Connecticut Division,
as well. as at its Pratt and Whitney Aircraft and Hamilton Standard
Propeller Divisions, does reconditioning and repair work for various
of its customers described above.'
III. All of the aforesaid operations of the respondent, set forth in
findings I and II, constitute a continuous flow of trade, traffic, com-
merce and transportation among the several states and foreign
countries.
B. THE UNION
IV. The Industrial- Aircraft Lodge No. 119, Machine, Tool and
Foundry Workers Union, originally affiliated with the American
Federation of Labor, is now an affiliate of the Federation of Metal
and Allied Unions, is a labor organization, and has been in existence
since April, 1934.
C. UNION MEMBERSHIP, LEADERSHIP AND ACTIVITY OF COMPLAINING
WITNESSES
V. Until September 16, 1935, the 20 workers whose names remain
in the complaint, as specified above, were employed by the respond-
ent, 11 of them at its Pratt and Whitney Aircraft Division and the
other nine at its Hamilton Standard Propeller Division, in the City
of East Hartford, Connecticut. Each and all of them were at that
time members of the Industrial Aircraft Lodge No. 119, Machine,
2 According to Exhibit B-16, the respondent's reconditioning business ("service sales")
for the months of July, August, September and October, 1935, amounted to $12,480.
DECISIONS AND ORDERS 243
Tool and Foundry Workers Union, actively engaged in the union's
affairs, and all but one were at that time active union officials. A
table showing the names of the complaining witnesses, their union
positions, occupations, and length of service, follows :
EMPLOYED AT PRATT AND WHITNEY AIRCRAFT DIVISION
Name Union Position and Activity Occupation
Length of
Service
Axel G Benson -------- President of Union Executive Com- Grinder, Gear Dept ----- 33 years
mitteo, Chairman, Shop Committee
Frank W. Hertel ------- Treasurer of Union Executive Com- Grinder, Gear Dept_____ 2% years.
mittee, Dept Grievance Committee
Frank Wendt ---------- Trustee of Union Executive Com- Bench Worker , Gear 3^5 years,
mittee Dept
William L Litscher---_ Executive Committee, Shop Commit- Grinder, Cylinder Dept_ 7)z years
tee, Steward , Dept Grievance Com-
mittee
Henry J. Descy-------- Executive Committee, Shop Com- Grinder, Miscell Dept-- 4% years.
mittee, Steward, Dept Grievance
Committee
Carl L Brett ---------- Executive Committee , Steward, Dept Machinist , Experimen - 7 years
Grievance Committee tal Dept
Guy Williams---------- Chairman , Sick Committee---------- Machine set-up man 9% years
Crank Case Dept
John Dalda ------------ Steward, Dept Grievance Committee- Boring Machine Oper- 4 months.
ator, Crank Case Dept
George Peters ------- ,-_ Steward , Dept Grievance Committee - Machine set -up nian 4;fi years.
Miscellaneous Dept
Basil La Breche------ Steward, Dept . Grievance Committee - Lathe hand , Cylinder 84a years
Dept
Francis Welch--------- Steward, Dept . Grievance Committee - Machinist Crank Case 7I/ years
Dept.
EMPLOYED AT HAMILTON STANDARD PROPELLER DIVISION
Name
Raymond Joams -------------
Lawrence Lang--- -----------
Harold K. Wilson------------
Francis Doucette -------------
William M Hamilton -------_
Union position and
activity
Vice-Pres of Union Exec-
utive Committee, Shop
Committee, Dept
Grievance Committee
Trustee, Executive Com-
mittee, Dept Griev-
ance Committee.
Executive Committee-----
Executive Committee-----
Steward, Dept Grievance
Committee
Steward, Dept Grievance
Committee.
Occupation
Machinist, Huh Dept
Annex
Machinist, Hub Dept.
Process Inspector, Hub
Dept.
Machinist , Drill Press
Operator , Hub Dept
Machinist , Lathe Oper-
ator, Hub Dept Annex
Length of
service
13 years.
7% years.
8 years.
1% years.
2 years (employ-
ed,P&WAir-
craft, 1928-33).
7 months (trans-
ferred from P
& W Aircraft,
where employ-
ed since May,
Frank W. Treybal ---------_-
Joseph King -----------------
George Demers ---------------
(Joseph) Ovilla Champaigne-
Machinist , Lathe Oper-
ator, Hub Dept.
1933)
Steward, Dept . Grievance Lathe Hand , Hub Dept-- 15 months
Committee.
Dept Grievance Commit- Machinist , Hub Dept 21 months.
tee Annex.
Union Member ----------- Machinist , Blade Dept---- 11 months (at
P & W Air-
craft, 3 months
before).
VI. With the exception of (Joseph) Ovilla Champaigne (the sole
member of the union on the list of complaining witnesses who was-
not an official), the union membership, official union position and
union activities of the respondent's employees listed in the preceding
244 NATIONAL LABOR RELATIONS BOARD
finding were well known to their fellow workers, and to the respond-
ent through its officers, superintendents, foremen and supervisory
staff. The members of the shop committee and the executive coin-
mittee and the stewards and members of departmental grievance
committees, specified in the preceding finding, repeatedly repre-
sented the union in conferences with the respondent's officials and
members of its supervisory staff concerning grievances, wages, hours
and conditions of labor. The activities of the chairman of the sick
committee were also known to the respondent.
D. PROCEDURE IN THE RESPONDENT'S PLANT FOR DISCUSSION OF PROBLEMS
WITH THE UNION
VII. The settlement of a 15 minute stoppage in the plant early
in May, 1935, resulted in the adoption of a definite procedure by the
respondent and the union for the discussion of mutual problems.
Witnesses for both union and respondent are agreed that the respond-
ent's letter of May 10, 1935 (Exhibit R-A) was mutually understood
to outline the procedure as follows : grievances were first to be taken
up by employees, through the department grievance committees, with
their respective foremen; then, in the event they were not settled,
the union, shop committee was to discuss them with a committee of
the respondent's superintendents. Matters not settled between the
latter committees were to be taken to the respondent's president,
Donald R. Brown, the conference to be arranged for the union's shop
committee by the superintendents.
VIII. After the stoppage early in May, 1935, the respondent's
superintendents and other supervisory officials were instructed, under
the orders of Brown, the respondent's president, that should its
employees again engage in a concerted stoppage of work, they were
to be ordered to resume work in 15 minutes or to consider their
employment terminated. Although this was decided upon by Brown
as the respondent's policy towards its employees and was made known
to the superintendents and supervisory staff, no notice of this inten-
tion was communicated to respondent's employees before September
16, 1935.
E. THE UNION'S RESOLUTIONS OF SEPTEMBER 6 AND 7, 1935
IX. The union's executive committee, at two meetings of the union's
membership on September 6th and 7th, was authorized to take what-
ever action was necessary, including a stoppage of work, to protect
members against discrimination. The reasons for the action, accord-
ing to testimony by Benson, union president, were rumors that "the
company was going to crack down on the union very shortly" ;
DECISIONS AND ORDERS 245
Benson testified that, "since the complete smashing of the Colt's
union, the Manufacturers Association, in circulars and otherwise, had
indicated that such a glorious victory should be followed up . . .
and the atmosphere was such that the members of the union felt that
it was necessary to protect the union from attack."
F. THE LAY-OFFS ON SEPTEMBER 11, 1935, AND THE SUBSEQUENT
NEGOTIATIONS
X. On Sepember 11, 1935, eight employees in the respondent's
Hamilton Standard Propeller Division were notified that they were
to be laid off on September 13, 1935. Five were union members; two
of them, Champaigne and Joanis, are among the remaining complain-
ing witnesses listed above.
XI. The union shop committee was notified of the lay-offs at noon
on September 11th, and protested to Neilson, factory manager, that
day, and again on September 12th and 13th. The reason given the
committee for the lay-offs was a reduction in the amount of work
available. The committee requested that the respondent reduce its
hours from 40 to 35 so that available work be shared by all em-
ployees and the lay-off be avoided, and told Neilson that it was pre-
pared to back up its protest. Neilson then postponed the lay-offs
until the expected return, on September 16th, of Brown, the respond-
ent's president. Champaigne and Joanis were told to report for
work on September 16th.
XII. On the morning of September 16, 1935, Neilson conferred
with Brown. It is significant of the seriousness with which the re-
spondent regarded the current labor dispute that Gilpin, factory
manager, and probably Borrup, general superintendent, of the re-
spondent's Pratt and Whitney Aircraft Division, were present at
the conference, although the lay-offs concerned only employees in
the Hamilton Standard Propeller Division. Brown upheld the lay-
offs. The union's shop committee was informed of the decision
about 12:30 P. M. that day, and the men involved were told finally
that they were laid off. Benson, president of the union, testified that
Neilson was asked to arrange a conference between the shop com-
mittee and Brown, and that he replied that it would do no good.
Witnesses for the respondent deny that the shop committee made such
a request. Brown's evidence on this point is contradictory. He tes-
tified that Neilson had told him the committee did not care to see
him ; and he also testified that Neilson, never told him the committee
wanted to see him. The evidence is clear that under the procedure
for discussion of problems between the respondent and the union,
arrangements to take problems to the respondent's higher officials,
246 NATIONAL LABOR RELATIONS BOARD
like Brown, were to be made through respondent's superintendents;
that the shop committee had never before gone to Brown directly;
and that in this case, although Brown was informed that the com-
mittee had stated it was prepared to back up its protest, and the sit-
uation was obviously serious, the respondent's superintendents did
nothing to arrange a meeting between Brown and the shop
committee.
XIII. The failure of the respondent's superintendents to arrange
a conference with the respondent's president, the latter's failure' to
require them to do so, although it was known and admitted that the
situation was serious, and although it was part of the accepted pro-
cedure for negotiation of disputes between the union and the re-
spondent for such conferences to be arranged through the superin-
tendents, coupled with the admission by the respondent's president
and superintendents, that as early as May, 1935, it had been deter-
mined to disemploy those participating in a stoppage who did not
resume work within about 15 minutes upon notice to do so, which
policy had not been communicated to the respondent's employees,
leads persuasively to the conclusion that the respondent, on Septem-
ber 16, 1935, was not disposed to settle the question of the lay-offs
by means of the procedure for negotiation established in May. The
ultimate power to arrange a conference between Brown and the shop
committee lay with the superintendents and Brown. They did not
avail themselves of this power, although they were not unaware that
the union was prepared to back up its protest.
Such conduct by the respondent points to a determination to dis-
courage or prohibit action by the union in the interests of its
employees.
G. THE STOPPAGE ON SEPTEMBER 16, 1935, AND THE RESPONDENT'S
SUBSEQUENT PROCESS OF REHIRING
XIV. At 2 P. M. on September 16, 1935, a concerted stoppage of
work occurred in the respondent's Hamilton Standard Propeller and
Pratt and, Whitney Aircraft Divisions. The stoppage was about
80% to 90°Jo effective. Immediately upon its occurrence, the respond-
ent's foremen, under instructions from respondent's superintendents
and other officials, and in pursuance of the respondent's policy speci-
fied in finding VIII above, informed employees who had stopped
work to resume in 15 minutes. Brown and the superintendents tes-
tified that the foremen were instructed to inforin the men that if
they did not resume work they would be considered as having quit.
According to the union's witnesses, the foremen told the men to
resume work in 15 minutes or "they were fired". The foremen testi-
fied that they variously told the men to resume work or they were
DECISIONS AND ORDERS 247
"off the payroll", or "were through", or that the foreman "had
no further use for them". The stoppage, however, continued until
3: 30 P. M., the end of the day shift.
XV. The executive committee's action in calling the stoppage was
confirmed by the union's members at meetings held on September
16th to 20th. Letters from the union, dated 'September 17th and
19th, to the respondent requesting a conference for the settlement
of the dispute resulted in a conference in Gilpin's office on September
20th; but the union's request to have employees return to work in
a body was refused by the respondent on the ground that it was
rehiring all of its employees individually upon application.
XVI. When complaining witnesses called for their pay at the
respondent's plant later in the week, after the stoppage, they were
generally required to get clearance slips before being paid. A clear-
ance slip was usually required by the respondent upon severance of
employment, to indicate that company property had been returned
by the worker and that he had removed his own tools. The use of a
clearance slip before being paid, in the parlance of the respondent's
employees, meant that the employee was "through". Many of the
complaining witnesses testified that they made individual requests
for reemployment at the time they were paid and thereafter.
XVII. During the period between September 17th and 25th the
respondent did in fact rehire most of the workers employed on Sep-
tember 16th. According to testimony for the respondent, all were
given new clock cards and the employment card of each was marked
to the effect that he was reemployed. Those rehired were inter-
viewed either at the gate or the employment office by their foremen,
and were sent in to work after having been approved by the fore-
men. The men who reported before or about starting time on Sep-
tember 17th, the day after the stoppage, apparently were sent right
in to work, and we're registered as reemployed later. But it is clear
that those rehired were all, one way or another, selected or approved
by the respondent's foremen. According to testimony for the respond-
ent, the men were selected from those who appeared at the gate of
the plant or at the employment office as needed to balance its dis-
rupted production schedule; in a few instances, particular men were
requested by the foremen. The respondent's foremen testified that
they also made their selections for rehiring according to the workers'
loyalty, attitude and ability. The respondent keeps no records of
employees' efficiency or seniority. It relies entirely upon the judg-
ment of its foremen in that respect. The results of the exercise of
that judgment in the course of the respondent's admittedly selec-
tive process of reemployment was the exclusion from employment
of the union's leaders-its president, treasurer, most of the executive
97571-3G-vol i-17
248 NATIONAL LABOR RELATIONS BOARD
and shop committee members, shop, stewards and members of de-
portment grievance committees-as unmistakably shown by the tabu-
lation in finding V above. The evidence is convincing that the
selection for reemployment was not entirely based on the foremen's
concern for the respondent's production schedule or their interest
in the employees' efficiency.
H. CONCLUSIONS RESPECTING THE RESPONDENT'S CONDUCT ON SEPTEMBER
16, 1935, AND ITS PROCESS OF REHIRING
XVIII. The stoppage of work in the respondent's plants, as speci-
fied above, in protest of the lay-offs specified above was based on a
reasonable conviction by the respondent's employees that such lay-
offs were in fact discriminatory and on a reasonable fear of dis-
crimination by respondent. The stoppage was finally brought about
by the respondent's conduct in failing to arrange a meeting between
the shop committee and Brown, its president, as set forth in finding
XIII above. The stoppage was, on the part of its employees, a con-
certed action for mutual aid and protection, an exercise of the right
expressly guaranteed employees in Section 7 of the National Labor
Relations Act.
XIX. The respondent's conduct in treating the stoppage as a rea-
son for severing the employment of those who participated therein
concertedly, whether the severance be considered as a general demand
for resignations, a forced quitting or a discharge, it is immaterial
which, was discriminatory in regard to hire or tenure of employ-
ment, in that it was an act directed at concerted conduct by its em-
ployees acting through a labor organization and, necessarily, discour-
aging membership therein, as well as a direct interference with, re-
straint and coercion of the right of its employees to engage in con-
certed activities for mutual aid and protection. This conclusion
is emphasized by the respondent's conduct in not making full use of
the procedure for settlement of labor disputes accepted by the re-
spondent and the union, as set out in finding XIII above.
XX. By reemploying the great bulk of its employees so disem-
ployed in the course of the stoppage on September 16th, the respond-
ent has, as to them, complied with its duty under the Act. Ex-
cepting Raymond Joanis and (Joseph) Ovilla Champaigne, who
were laid off before the stoppage, the respondent has failed and re-
fused to reinstate the men listed in finding V above, although these
employees, through the union, on and before September 20, 1935,
offered to return to work in a body, and individually thereafter.
That this list is composed of the union's officers, members of the
executive and shop committees, the chairman of the sick commit-
tee and department stewards and members of department grievance
committees, is persuasive that the respondent's selective process of
DECISIONS AND ORDERS 249)
rehiring, specified in finding XVII above, was directed at exclusion
of the union's leaders from employment.
XXI. In this view of the respondent's conduct on September 16th
and thereafter, the meagre testimony by members of the respondent's
supervisory force as to the efficiency, attitude or loyalty of com-
plaining witnesses, other than Joanis or Champaigne, becomes un-
important. As findings XIV, XVIII and XIX above indicate, the
respondent severed the employment of these 18 complaining wit-
nesses on September 16th while they were engaged in concerted activ-
ity for mutual aid and protection without thought of their effi--
ciency, attitude or loyalty. Findings V, XVII and XX show un--
mistakably that the respondent's selective process of rehiring ex-
eluded from employment a practically complete roster of the union's.
active leaders, comprising these 18 complaining witnesses. No rea-
son for the respondent's failure to rehire them, other than their union
membership, leadership and activity, can be deduced from the evi-
dence. All of the foremen under whom those employees worked
were witnesses. Their testimony either fails to mention the effi-
ciency of these men at all or is confined to isolated instances, in some
cases several months past, of minor misunderstandings which were
admittedly adjusted when they occurred. If anything, the testi-
mony of Azinger, department foreman in the Hamilton Standard
Propeller Division, and Muzzulin, foreman in the Pratt and Whit-
ney Aircraft gear department, that they chose their men for re-
employment on the basis of loyalty and cooperation, the testimony
of other foremen to the same effect, and especially the evidence of
Muzzulin that, in his opinion, before the stoppage, employees in
his department restricted their efforts by prearrangement with some
of the union leaders, but that he had never taken disciplinary action
on that account, lends support to the conviction that union leader-
ship, membership and activity were chief considerations in the
respondent's failure and refusal to reinstate complaining witnesses,
other than Joanis and Champaigne, listed in finding V above.
I. CONCLUSIONS RESPECTING JOANIS AND CHAMPAIGNE
XXII. The evidence is not sufficient to support the allegations in
the complaint that the discharge of Raymond Joanis and the lay-off
of (Joseph) Ovilla Champaigne were due to their union membership.
and activity.
J. CONCLUSIONS RESPECTING OTHER 1S COMPLAINING WITNESSES,
XXIII. (a) Said Axel G. Benson, Carl L. Brett, Frank Hertel,,
Henry J. Descy, William L. Litscher, Frank Wendt, Basil La Breche,.
Francis Welch, Guy Williams, George Peters, John Dajda, Lawrence
Lang, Francis Doucette, Harold Wilson, Joseph King, George
250 NATIONAL LABOR RELATIONS BOARD
Demers, Frank W. Treybal, and William M. Hamilton, and each of
them, were disemployed and severed from their employment either
by being forced to quit or by being discharged on September 16,
1935, all and each of them by the respondent's superintendents, fore-
men and supervisory employees, agents of the respondent, and have
since been refused reinstatement in employment, for the reason that
the aforementioned employees, and each of them, joined and assisted
a labor organization known as Industrial Aircraft Lodge No. 119,
Machine, Tool and Foundry Workers Union, and engaged in con-
certed activities, for the purpose -of collective bargaining, and other
mutual aid and protection.
(b) By said disemployment, severance of the employment of, and
refusal to reinstate the employees specified in paragraph (a) of this
finding, and each of them, the respondent has interfered with, re-
strained and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the National Labor Relations Act.
(c) By said disemployment, severance of the employment of, and
refusal to reinstate the employees specified -in paragraph (a) of
this finding, and each of them, the respondent has discriminated and
is discriminating in regard to the hire and tenure of said employees,
and each of them, and has thus discouraged and is discouraging
membership in the labor organization known as Industrial Aircraft
Lodge No. 119, Machine, Tool and Foundry Workers Union.
K. THE RESPONDENT'S CONDUCT AS AFFECTING COMMERCE
XXIV. The respondent's severance of the employment and dis-
employment of employees participating in the stoppage of work on
September 16, 1935, as specified above, as well as its refusal to rein-
state employees as specified above, disrupted the respondent's pro-
duction schedule and affected its business of manufacture and dis-
tribution of airplane engines, propellers and parts in interstate coin-
merce, thus burdening and obstructing commerce and the free flow
of commerce.
XXV. The respondent's severance of the employment of and dis-
employment of employees participating in the stoppage of work on
September 16, 1935, as specified above, as well as its refusal to rein-
state employees as specified above, has led and tends-to lead to labor
disputes burdening and obstructing commerce and the free flow of
commerce.
THE RESPONDENT'S EXCEPTIONS
The respondent's exceptions to the Trial Examiner's intermediate
report are based on the respondent's apparent theory of the case,
that the respondent, in its business, is not engaged in interstate com-
merce, and that the respondent's conduct in severing the employ-
DECISIONS AND ORDERS 251
ment of and refusing to reinstate the 18 men found by the Trial
Examiner to have been discriminated against was justified. The
respondent also excepts to the Trial Examiner's denial of the re-
spondent's motion to dismiss the complaint on the ground that the
National Labor Relations Act is unconstitutional.
At the hearing before this Board, the respondent withdrew its
exception to the Trial Examiner's findings that a considerable pro-
portion of its raw materials and a substantial proportion of its
finished products are purchased and transported by the respondent
from and to states outside of the State of Connecticut. See findings
II and III.
The respondent's exceptions are directed to a claim that the pro-
cedure set up on May 10, 1935 for settlement of labor disputes in
the plant required, technically, a request by the union for a conference
with Brown, the respondent's president, in the event the union shop
committee and the superintendents failed to reach a settlement. The
evidence does not sustain this position. The evidence rather indi-
cates that such a conference was to be arranged, and that the final
power to arrange it was in the superintendents. The employees had
no access to Brown except through superintendents or other company
officials and had never arranged conferences with him except through
such officials. See findings VII, XII and XIII.
The exceptions also stress the fact that 60o%o of the respondent's
employees had been rehired at the time the union made a demand for
a collective return to work, on September 20th. The union began
its efforts for such a conference by letter on September 17th and
again on the 19th. Benson, union president, also testified he asked
Gilpin, manager of the Pratt and Whitney Division, for a confer-
ence early on the morning of September 17th; he was told to apply
at Gilpin's office; when he telephoned later in the morning, he was
told that Gilpin would see the committee at his convenience. There
was no conference until September 20th, when the company refused
to reinstate the men in a body, but stated its policy to reemploy them
individually. See finding XV. '
The exceptions also point out that five of the complaining wit-
nesses did not apply for reemployment and that the others did not
do so until October 9th or thereafter, as shown by the respondent's
records. In view of the admitted collective request for reinstate-
ment made on September 20th, on the first opportunity offered by
the respondent, this is not material. In fact, testimony by these
men indicates requests for reemployment by all but four of the
complaining witnesses, some of them. within a week after the stop-
page. The respondent, in a few cases, recalled certain employees.
It could easily have recalled any or all of the complaining witnesses.
They were at the plant for their pay on September 19th or 20th,
252 NATIONAL LABOR RELATIONS BOARD
and at the gates or in the employment office that week and there-
after. The respondent also had their addresses on its records. See
.findings XV, XVI and XVII.
The exceptions also advance the theory, entirely novel to the issues
raised by the pleadings and to the record, that in participating in
the stoppage on September 16th, the conduct of complaining witnesses
amounted to "acts of insubordination and unlawful and a criminal
trespass in violation of the General Statutes of the State of Con-
necticut of which this Board takes judicial notice, and was a con-
certed effort to do collectively that which was illegal for them to
^do individually." Therefore, the exceptions conclude the respondent
was justified in refusing to resume the relation of employer and
,employee with these employees.
The respondent's counsel, at the hearing, identified the statute
referred to in the exceptions as Connecticut General Statutes, Sec-
tion 6119, which provides:
"Any person who shall, without right, enter or remain upon
the premises of another after having been forbidden to do so
by the owner of such premises or his authorized agent, either
directly or by clear and legible signs posted thereon, shall be fined
not more than fifty dollars."
Though the Board may take judicial notice of state statutes, it is
-difficult to perceive under what authority either the Board or its
'Trial Examiner may determine, upon evidence heard in one of its
own proceedings, that a state criminal statute has been violated,
whether the issue be raised directly in such a proceeding or indi-
rectly on exceptions to the Trial Examiner's intermediate report.
Further, the respondent can make no claim under the evidence
that its agents directly forbade its employees to remain on the
premises when the stoppage began. Whatever direction there was
to do so came after the stoppage was in effect, and applied only after
the 15 minute grace period had expired. The stoppage itself was
clearly a concerted activity for mutual aid or protection, a strike,
the right to which is guaranteed by Sections 7 and 13 of the Act.
The respondent's severance of the employment of complaining wit-
nesses and all others who participated in the stoppage came before
any orders were given for employees to leave the premises. Cer-
tainly at the commencement of the stoppage and during the grace
period the respondent's employees were exercising a right granted
them by an Act of Congress. That some employees, after the grace
period, refused to leave the respondent's premises, and that such
conduct may have amounted to a violation of a local statute, in no
way affect the legal consequences of the respondent's conduct under
the provisions of the Act. The respondent's conduct in that respect
0
DECISIONS AND ORDERS 253
had been completed by its severance of the employment of those who
took part in the stoppage before the time some of these employees
were ordered off the premises.
Still the respondent urges that the claimed violation justifies re-
spondent's refusal to reinstate 18 of the complaining witnesses.
Although 80% to 90% of the respondent's employees in the two
Divisions affected participated in the stoppage under the same cir-
cumstances, the respondent has reemployed practically all of them,
apparently without prejudice. Finding V shows that these 18 com-
plaining witnesses were the leaders of the union, its president, trus-
tees, executive and shop committee members and shop stewards. No
reason appears for respondent's selection of complaining witnesses
for what is obviously special treatment because of the alleged tres-
pass save that set out in the findings; union leadership and activity.
See findings XVII and XXI.
The respondent's final exception is to the Trial Examiner's denial
of the respondent's motion to dismiss the complaint on the basis of
the respondent's contention that the National Labor Relations Act
is unconstitutional. At this stage of the proceedings, the exception
does not merit discussion by this Board. The Trial Examiner's rul-
ing on the motion is affirmed.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the
entire record in the proceeding, the Board finds and concludes as a
matter of law:
1. The Industrial Aircraft Lodge No. 119, Machine, Tool and
Foundry Workers Union, affiliated with the Federation of Metal and
Allied Unions, as set forth in the above findings of fact, is a labor
organization within the meaning of Section 2, subdivision (5) of the
National Labor Relations Act.
2. The respondent by severing the employment of and disemploy-
ing and refusing to reinstate Axel G. Benson, Carl L. Brett, Frank
Hertel, Henry J. Descy, William L. Litscher, Frank Wendt, Basil La
Breche, Francis Welch, Guy Williams, George Peters, John Dajda,
Lawrence Lang, Francis Doucette, Harold Wilson, Joseph King,
George Demers, Frank W. Treybal and William M. Hamilton, and
each of them, and by interfering with, restraining and coercing its
employees in the exercise of the rights guaranteed in Section 7 of
the National Labor Relations Act, as set forth in the above findings
of fact, has engaged in and is epgaging in unfair labor practices
within the meaning of Section 8, Subdivision (1) of the National
Labor Relations Act.
3. The respondent by discriminating in regard to the hire and
tenure of the employees specified in the preceding paragraph, and
0
254 NATIONAL LABOR RELATIONS BOARD
each of them, by severing the employment of and disemploying and
refusing to reinstate these employees, and each of them, said conduct
discouraging membership in the labor organization known as Indus-
trial Aircraft Lodge No. 119, Machine, Tool and Foundry Workers
Union, has engaged in and is engaging in unfair labor practices
within the meaning of Section 8, Subdivision (3) of the National
Labor Relations Act.
4. The unfair labor practices in which the respondent has engaged
and is engaging as set forth in paragraphs 1 and 2 above constitute
unfair labor practices affecting commerce within the meaning of
Section 2, subdivisions (6) and (7) of the National Labor Relations
Act.
ORDER
On the basis of the findings of fact and conclusions of law, and
pursuant to Section 10, subdivision (c) of the National Labor Rela-
lions Act, the National Labor Relations Board hereby orders that
the respondent United Aircraft Manufacturing Corporation, and
its officers and agents, shall:
1. Cease and desist from in any manner interfering with, restrain
ing or coercing its employees in the exercise of their rights to self-
organization, to form, join or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, as guaranteed in Section 7 of
the National Labor Relations Act.
2. Cease and desist from in any manner discouraging membership
in Industrial Aircraft Lodge No. 119, Machine, Tool and Foundry
Workers Union, by discrimination in regard to hire or tenure of
employment or any term or condition of employment.
3. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Axel G. Benson, Carl L. Brett, Frank Hertel, Henry
J. Descy, William L. Litscher, Frank Wendt, Basil La Breche,
Francis Welch, Guy Williams, George Peters, John Dajda, Lawrence
Lang, Francis Doucette, Harold Wilson, Joseph King, George
Demers, Frank W. Treybal, and William M. Hamilton, and each of
them, immediate and full reinstatement, respectively, to their former
positions, without prejudice to their seniority or other rights and
privileges previously enjoyed;
(b) Make whole the said Axel G. Benson, Carl L. Brett, Frank
Hertel, Henry J. Descy, William-L. Litscher, Frank Wendt, Basil
La Breche, Francis Welch, Guy Wiliams, George Peters, John
Dajda, Lawrence Lang, Francis Doucette, Harold Wilson, Joseph
King, George Demers, Frank W. Treybal and William M. Hamilton,
DECISIONS AND ORDERS 255
and each of them, for any losses of pay they have suffered by reason
of the severance of their employment, by payment to each of them,
respectively, of a sum of money equal to that which each would
normally have earned as wages during the period from the date of
the severance of his employment to the date of such offer of rein-
statement, computed, at the wage rate each was paid at the time of
such severance, less any amount, if ' any, which each earned subse-
quent to such severance until the date of such offer for reinstate-
ment; and in the event of any dispute as to the amount of such back
pay due, the dispute shall be laid before this Board, for determina-
tion of the amount of such wages properly due each such employee
within the terms set forth in this Order;
And it is further ordered that-
4. The complaint be, and it hereby is, dismissed with respect to
Raymond Joanis and (Joseph) Ovilla Champaigne.
EDWIN S. SMITH, member of the Board, acted as Trial Examiner
in the original hearing of the case and did not take part in the hear-
ing before the Board, or in this decision.
0
O