Budd Wheel Co.

National Labor Relations Board - Board Decisions

May 29, 1943

49 N.L.R.B. 1350 (N.L.R.B. 1943)

t
In the Matter of BUDD WHEEL COM PANY and INTERNATIONAL UNION,
UNrrED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
W`TORIiERS OF AMERICA, C. I. 0., LOCAL 114
Case No. C-2545.Decided May 29, 1943
DECISION
AND
ORDER
On March 4, 1943, 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 cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the -respondent filed exceptions
to the Intermediate Report and a brief in support of its exceptions,
and requested permission to present oral argument before the Board.
On April 29, 1943, pursuant to notice served upon all the parties, a
hearing for the purpose of oral argument was held before the Board
at Washington, D. C. Only the respondent appeared.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the respondent's exceptions and brief, the oral
argument, and the entire record in the case, and hereby adopts the'
findings , conclusions , and recommendations made by the Trial Exam-
iner, with the exceptions and additions noted below.
McCurley testified that when he was hired (July 1941), Chief Schi-
meek told him "We have no union here." Vidosh testified that when
he was hired (January 1942), Schimeck informed him that there was
no union activity in plant protection . Schimeck did not specifically
deny either of these two statements, although when questioned as
to whether he had told McCurley that he must not join a union, Schi-
meek replied , "I never told no man that ." . We credit the testimony-
of McCurley and Vidosh, as supported by the testimony of Laginess
and Crosby that Schimeck made substantially similar statements to
them when they were hired, and find that Schimeck made the fore-
49 N L . R. B., No. 191.
1350
0
BUDD WHEEL COMPANY 1351
going statements. We find further that the respondent, by such state-
ments, in addition to the other statements as found by the Trial Ex-'
aminer, has interfered with, restrained, and coerced its employees in'
the exercise of the rights guaranteed in Section 7 of the Act.
In its exceptions and brief the respondent contends that if 'Norval
Massey is found to have been discriminatorily discharged, he is not
entitled to back pay because he failed to make a reasonable effort to
secure employment; and that if entitled to back pay, the award should
run only to the date of the offer of employment made him by they re-
spondent. The record indicates that 3 or 4 weeks after Massey's dis-
charge the respondent offered him some job in the plant, not as a
watchman, but at a higher rate of pay. Massey refused the offer
because he "had 7 years seniority in plant protection" which he did
not want to lose and because it would have entailed his transfer to
another local. On September 4, 1942, Massey received by registered
mail another offer of a job (unspecified as to nature in the record but
clearly non-watchman) from the respondent at a higher rate of pay
'than he earned as watchman. He' refused this second offer because
he "was fighting about [his] job in plant protection, [and] didn't
want to be framed." Massey first secured other employment on Sep-
tember 19, 1942, when he was employed by another company as a'
watchman at a weekly salary of $50 for a 72-hour week; 'as a watch-
man for the respondent, he had been earning approximately $45 for
a 48-hour work week. On this record we do not have a basis to justify
a finding that Massey did not make a reasonable effort to secure em-
ployment after his discharge, that respondent's two offers of em-
ployment in other capacities were offers of suitable employment, or
that Massey's rejection of those offers was a clearly unjustifiable re-
fusal to take desirable new employment under the circumstances.
Respondent has further excepted to the remedy section of the Trial
Examiner's Report on the ground that it does not permit respond-
ent to deduct "social security" payments from back pay. Respond-
ent has failed, however, to introduce any evidence to show that social
security payments were in fact received by any of the discharged
employees, or evidence as to the amount and period over which such
benefits were paid, or any other facts on the basis of which the Board
might determine the effect of the receipt of the benefits and the
period of employment involved upon the employee's right to collect
future benefits. We realize that in many cases, involving extended
periods of unemployment which continue after the hearing before
the Trial Examiner, the complete facts with respect to these points
are not available at the time of such hearing and do not become
available until the compliance stage of the case has been reached.
In the absence of evidence of the character noted, we have no basis
1352 DECISIONS OF NATIONAL LABOR RELATIONS h OiARD
at this time for findings as to the propriety of permitting any de-
ductions other than those for net earnings.
ORDER
Upon the basis of the above findings of fact and 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 , Budd Wheel Company , Detroit, Michigan , its officers,
agents , successors , and assigns , shall :
1. Cease and desist from : _
(a) Discouraging membership in International Union, United
Automobile , Aircraft and Agricultural Implement Workers of Amer-
ica, C. I. 0., Local 114, or any other labor organization of its em-
ployees, by discharging, refusing to reinstate , or otherwise discrim-
inating against its 'employees in regard to the hire and tenure of
their employment , or any term or,condition of employment;
(b) In any other manner interfering with, restraining , or coerc-
ing its employees - in the exercise of their right to self-organization,
to form, join, or assist labor , organizations , to bargain collectively
through representatives of their own choosing , and to engage in con-
certed activities for the purpose of collective ..bargaining or other
mutual - aid or, protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Roy Moore and Norval Massey , immediate and full
reinstatement to their former or to substantially equivalent positions
without prejudice to their seniority and other rights and privileges;
(b) Make whole Roy Moore , Norval Massey, Ralph McCurley, and
William J. Martin by payment to each of them of a sum of ,money
equal to that which ,he normally would have earned as wages from
July 24, 1942, to the date set forth below , less his -net earnings during
such period :
(1) Moore: to August 20 , 1942, when he was employed by the
respondent. .11 .
(2) Massey: to the date when respondent offers him reinstate-
ment pursuant to this order.
(3) McCurley : to August 25, 1942, when he was employed by
the Edward G. Budd Manufacturing Company and no longer
desired reinstatement by the respondent.
(4) Martin: to August 22, 1942, when he obtained other em-
ployment and no longer desired reinstatement by the respondent.
(c) Post immediately in conspicuous places throughout its Detroit,
Michigan , plant, including the premises occupied by its watchmen,
e
BUDD WHEEL COMPANY 1353
and maintain fora period of at least sixty (60) consecutive days, no-
tices to its employees stating that the respondent will not engage in
the conduct from which it is ordered to cease and desist in para-
graphs`1 (a) and (b) hereof; that it will take the affirmative action
set forth in paragraphs 2 (a) and (b) hereof; and that the respond-
ent's plant-protection employees are free to become and remain mem-
bers of International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America, C. I. 0.,. Local 114, and the
respondent will not discriminate against any of its -employees be-
cause of membership in or activity on'behalf of that organization;
(d) Notify the Regional Director for the Seventh Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. Sylvester J. Pheney, for the Board.
Beaumont, Smith and Harris, by Dir. Albert E. Heder, of Detroit, Mich., for the
respondent. .
Mr. John L. B. Cowden, of Detroit, Mich, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on October 8, 1942, by International Union,
United Automobile, Aircraft and Agricultural Implement Workers of America,
C. I. 0., Local 114, herein called the Union, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Seventh Region (Detroit,
Michigan), issued its complaint dated January 13, 1943, against Budd Wheel
Company, Detroit, Michigan. 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 (3) and Section,2 (6) `and (7)
of the National Labor Relations Act, 49 Stat 449, herein called the Act Copies of
the complaint, together with notice of hearing thereon, were duly served upon
the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondent: (1) on or about July 24, 1942, discharged and thereafter
refused to reinstate Roy Moore, and on or about July 25, 1942, discharged and
thereafter refused to reinstate Norval Massey, Ralph McCurley, and William J.
Martin, for the reason that they and each of them joined and assisted the Union;
(2) on and after February 12, 1942, warned its employees against joining the
Union ; questioned them regarding the activities of the Union, its membership,
and the identity. of its leaders ; solicited them to obtain information regard,ng,
the Union and to report to supervisors of the respondent ; and advised its
employees that the leaders and organizers of the Union would, upon being dis-
covered by the respondent, be discharged; and (3) by such acts and conduct
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
On January 21, 1943, the respondent filed its answer admitting the allegations
of the complaint with respect to the nature of its business and denying the
commission of any unfair labor practices. The answer contained a written mo-
tion to strike paragraph 7 of the complaint and, in the event of the denial of
such motion, for a bill of particulars of said paragraph. On January 21, 1943,
1354 D'EICISIONS ' OF NATIONAL LABOR RELATIONS BOARD
the undersigned issued an order denying the motion to strike and allowing, in
part the motion for a bill of particulars On January 22, 1943, in conformity
to the order of the undersigned, counsel for the Board furnished to the respondent
a list of the names of its officers, agents, and servants by whom it was alleged
by the complaint to have committed certain unfair labor practices.
Pursuant to notice, a hearing was held at Detroit,-Michigan, on January 25
and 26, 1943, before the undersigned Josef L. Hektoen, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board and the respondent were
represented by counsel and participated in the hearing ; the Union was repre-
sented by its recording secretary. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issue was
afforded to all parties. At the close of the hearing the parties waived oral argu-
ment before the undersigned, and although offered an opportunity to do so, filed
no briefs with him.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE IIUSINESS OF THE RESPONDENT
The respondent, Budd Wheel, Company,-is a Pennsylvania corporation having.
its principal place of business at Detroit, Michigan. It is engaged in the manu-
facture of artillery shells under contract with the United States Government,
as well as of automobile wheels and parts under government and sub-contracts.
The principal raw material used by it is steel. During the period July 1 to
December 31, 1942, it bought such material having a value of approximately
9;9,800,000, about 58 percent of which was purchased outside the State of Michigan.
'During the same period it sold finished products having a value of approximately
$23,200,000, about 93 percent thereof being shipped by it to points outside the State
of Michigan. The respondent admits that it is engaged in commerce, within
the meaning of the Act. '
U. THE ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and 'Agricultural Implement
Workers of America, Local 114, is a labor organization affiliated with the Con-
gress of Industrial Organizations. It admits to membership watchmen, plant
protection employees, and guards employed by the respondent.
III. The unfair labor practices
A. Interference, restraint, and coercion
At the time of the hearing the labor relations between the respondent (and
two associated concerns') and its production employees were governed by a
contract dated March 23, 1942, between it'and International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America, C. I. 0., Local
306 By its terms, watchmen were excluded from the unit for which Local 306
was recognized as the statutory representative. In the fall of 1939, Robert H.
Erwood, director of personnel of, the respondent, called a meeting of the plant
watchmen "because they were specifically exempted from [the] bargaining unit,
and so as to stop any further discussions on the matter," and informed them
1 The Edward G Budd Manufacturing Company, Detroit division , and Budd Induction
Heating, Inc., Detroit.
BUDD WHEEL COMPANY 1355
"that they were not permitted to be members of Local 306. . . . " According to
the testimony of watchman Norval Massey, Erwood on that occasion added that
if the watchmen unionized, they would lose their positions because in that event
the respondent would employ a private detective agency to perform their work.
Erwood could not recall having made the statement attributed to him. Upon
the entire record, and particularly the subsequent developments revealed therein,
the undersigned is persuaded and finds that Erwood made the statement sub-
stantially as testified by Massey 2
William C. Schimeck, chief of watchmen, also made plain the respondent's ap-
prehension lest the plant protection force organize Thus it is undenied that
when watchmen Ralph McCurley and Albert Vidosh were hired in July 1941,
and January 1942, respectively, he pointed out to each of them that there was
no union of the watchmen in the respondent's plant and told Vidosh there was
"no union activity in this at all."' Jesse Laginess testified that in February
1941, when he was hired by the respondent, Schimeck asked him if he was a
member of a labor organization, received a negative reply, and thereupon told
Laginess that he wanted no unionization of the watchmen, adding, "In other
words, we don't want no clique around here." James Crosby testified that in
January 1942, when he was employed, Schimeck, after inquiringas to his union
affiliation told him that there was no union among the watchmen and that he
would therefore not have to worry about the dollar a month dues which were
otherwise apparently payable.
Schimeck denied making the remarks attributed to him by Laginess and
Crosby. The undersigned, upon the basis of the matters revealed in the record,
the corroboration of the fact of Schimeck's antipathy to organization among the
watchmen hereinafter related, and the credible testimony of Laginess and Crosby,
rejects his denials and firids'that he spoke to them substantially as they testified'
Dui ing April 1942, watchman McCurley learned through the local press of the
formation of a union local admitting watchmen, plant protection men, and
guards of the respondent to membership. McCurley subsequently spoke to
Bruce Attridge, committeeman of Local 306, respecting the Union and about July
16, 1942, received a number of membership applications therein from him. On
the same day, McCurley joined the Union and obtained the application of watch-
man Massey. Watchman Roy -Moore also joined the Union on July 16, and
on July 17, 1942, watchman William J -Martin did likewise. The four named
employees thereafter spoke of the Union to their colleagues in the plant and
solicited union membeiships from them,` both in the plant during working hours
and on their own time
Watchman Alfred Theriault testified that at the time the solicitations began,
Louis Lisiecki, sergeant of watchmen, asked him if he had beard "anything,
about the union" and when Theriault replied that he had not, requested that he
let him know if and when he did so. Watchman Laginess testified that on
July 16, Lisiecki spoke to him in the same effect, adding "we have been pretty
nice to you here, you,know, and we don't want no union" and requested that
Laginess refrain from telling anyone of their conversation. Watchman Moore
testified that on July 23, Lisiecki asked him."who is the son-of-a-bitch trying to
2 Although the complaint did not allege Erwood's statement as interference, it was liti-
gated as an issue of alleged interference '
3As a consequence , Vidosh obtained a withdrawal card from another local of the Union,
of which he was then a member.
See footnote 2 above
6 Local 114 (herein called the Union)
e McCurley obtained from 15 to 18 signed applications, while Massey, although he solicited
numerous employees , obtained only 2.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOIARD
organize this Union?" Moore replied he did not know, admitted that he had
joined it, and asked Lisiecki why the respondent was opposed to the Union, the
latter replying "we don't want no union in plant protection," that Chief Schimeck
was opposed to it, and that the respondent would discharge those who were
organizing the Union as well as those-who joined it. Watchman Crosby testified
that on July 24, Lisiecki asked him if McCurley had approached him respecting
the Union, and when Crosby answered in the negative, stated that the respondent
was opposed to the Union and'that matters were progressing smoothly without
it. Watchman Vidosh testified that on July 24, Lisiecki asked him if he was a
member of the Union, received a negative answer, asked that Vidosh inform him
of anything he heard about the Union, and added that as to its organizers, "I
have got two sneaks around here,-I wouldn't put it over Massey and McCurley."
Watchman Joseph Makowski testified that at- about the same time Lisiecki asked
him if he was a member of the Union and that he answered that he was not.
Lisiecki categorically denied the statements attributed .to him by Theriault,
Laginess, Moore, Crosby, and Vidosh and could not recall having asked Makowski
about his union affiliation. The undersigned was not impressed by Lisiecki's
demeanor as a witness. In the light of all the circumstances revealed in the
record, and particularly •Lisiecki's unbelievable testimony that he knew of no
activity on behalf of the Union in the plant at the time in question, the under-
-signed, is persuaded and finds that lie made the statements attributed to him by
the employees named, substantially as testified by them.
The undersigned finds that by the statements of Erwood to, the watchmen at
the meeting in 1939, of Schimeck to Laginess and Crosby, and of Lisiecki to
Theriault, Laginess, Moore, Crosby, Vidosh, and Makowski, the respondent has
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
B. The discharges
During the first part of July 1942, all watchmen, including the four alleged
to have been discriminated against, voluntarily signed written instruments
furnished to the respondent by the United States Army about July 2,7 stating
that they' would support the Constitution and faithfully discharge their duties
as civilian auxiliaries to the military police in guarding materials and premises
devoted to the war effort. Shortly thereafter the Army authorities notified the
respondent that its watchmen were to be formally sworn in as civilian auxiliaries
and that the Articles of War would be read to them at that time. Personnel
- Direetor Erwood testified that inasmuch 'as the respondent "would have less
control over those men, because of the Army having more control over them,"
after they had been sworn in he "thought at that time that if there were any
of our watchmen who were undesirable, or who were unable to get•along'with
the other men, that right then wds the time to clean out the watchmen force. ."
,He further testified that he thereupon instructed Chief. Schimeck that "if he
had any men working for him he felt were not all that they should-be, that at
that time was the time to discharge those men " Schimeck "checked up" on the
approximately 60 watchmen through the sergeants of the force whom he advised
that "if they had anybody that they were having trouble [with], that now was
,the titre to .get rid of, them" A week, later he recommended to Erwood that
McCurley, Massey, Moore, and Martin be discharged. Erwood agreed, and on
7 The documentary evidence indicates that they were enclosed with a communication to
the respondent dated July'2, 1942. -
BUDD WHEEL COMPANY 1357
July 24, 1942,8 they were dismissed . A day or two later, the remaining watch-
men were sworn in as auxiliaries by Army authorities ,
Moore was employed only 5 weeks before he was discharged on July 24, 1942,
for being " too slow". He had -joined the Union on July 16, and on the day
before his discharge , in answer to Lisiecki ' s questioning , told him that he was,
a member of the Union . Schimeck and Lisiecki testified that Moore 's lack of
attention to work had permitted truck traffic to become ensnarled at the "big
doors " Moore testified , however , without contradiction , and the undersigned
finds, that during the week preceding his discharge he was taught by,Lisiecki
to shoot fire-arms and was to have ' been instructed in the use of the plant's
fire-fighting equipment during the following week.i He further testified that
he was to have been fitted with a uniform on July 27 or 28, there being none
suitable for him among those in the plant Schimeck and Lisiecki denied that
an endeavor to fit Moore with a uniform had been made and that one was to
be furnished him. Both have been found to have been witnesses of dubious
credibility . The undersigned, however, found Moore a creditable witness whose
testimony was worthy of belief . He accordingly finds that the events transpired
as related by him.
Massey , when discharged "for the good of the service ," had worked for•*the
respondent , as a watchman for more than six years . He joined the Union on
July 16, 1942 , at' the invitation of McCurley , and with him was thereafter -very
active in soliciting his fellow employees until his discharge on July 24, 1942.
Supervisors of -the respondent testified that Massey 's services were dispensed
with because he had been found without his shirt , could not control or "get
along" with "the employees", took too long "on relief", and on one occasion
admitted a person, to the plant in contravention of rules . The evidence reveals
that the shirt incident took place in 1939, and it is undenied and the under-
signed finds that on that occasion Massey, at the suggestion of two supervisors,
opened his shirt to the sun in an effort to combat a cold. In about April 1942,
in technical violation of rules , the admitted to the plant an employee of 14
years' standing whose father -in-law had just died , in order that , the employee
might obtain a release from his foreman for time off necessitated by that event.
Schimeck discharged Massey for his action in so doing , but Erwood vetoed
the order and Massey continued to work ° The evidence further reveals that
during the spring of 1942, Massey and Sergeant Marco J. Palozolla became in-
volved in a minor altercation in connection with the , keys used for making
"pulls" by the watchmen while patrolling the plant. The matter was amicably
settled in Erwood 's office and was the sole instance of Massey 's alleged'inability
to get along with other eniployees revealed by the record. There is no evidence
of specific instances of his alleged inability to "control ", employees nor of his
taking too long on relief.
McCurley was employed by the respondent 'as a watchman on July 25, 1941.
He -was discharged by Schimeck on July 24, 1942, because he "never can be
found on the job, walk[s] out on the job", and, according .to the. respondent's
answer, "for the good of the service."` McCurley, as related above, was the most
active of the Union proponents and, with Massey, was named by Lisiecki as one
of the "sneaks" who were endeavoring to organize the Union. Three or four
days before his discharge, McCurley was found off his post by Schimeck and was
8 The complaint alleged, and the dischar;ees testified, that they were variously discharged
on July 24 and 25, 1942, the sworn answer of the respondent fixed July 24,, 1942, as the
date on which all the discharges occurred The undersigned assumes that the i espondent,'s
records so indicated and finds that the discharges occurrred on -that (late
Schimeck testified that employees wore allowed to enter the plant only at the main gate
despite their possession of proper credentials.
1358 DEIC'ISIO\TS OF NATIOIC!4L LABOR RELATIONS BOARD -
reprimanded therefor by Lisiecki . McCurley testified , and the undersigned
finds, that on this occasion he went across the street from the plant to get some
coffee , and that he was away for five minutes . No other reprimand respecting
'his work is revealed in the record
Marlin was employed as a watchman in mid -December 1941. He joined the
Union on July 17, 1942, and thereafter solicited on his shift . He was discharged
by Schimeck "for dissatisfaction with working conditions " Sergeant Benjamin
Henman testified that he recommended Martin's dismissal to Schimeck because
various, employees whose names he did not reveal had reported to him that
Martin complained to them that he was' not "satisfied " and found fault with
'Heriman 's operation of the shift . He further testified that Martin had once
heatedly but unsuccessfully protested to him the placing of another watchman
on a particular job.
Erwood testified that the respondent ' s policy respecting its watchmen was
one of intentional leniency, that each represented an important investment in
time, training , and money ,, that their positions were of increasing importance,
and that in consequence , "We would much rather reprimand the watchmen
in the hope the things they were doing would be corrected , and we have thus
given them three or four chances , and in some cases more than that." That the
respondent was indeed lenient is exemplified by the case of watchman Crosby
who reported for work intoxicated in April , drank beer at a plant entrance
in May, and was found off his post in July 1942 . For these infractions he
merely received reprimands at Schimeck 's hands. The record also reveals
that about January 1942 , a watchman was found intoxicated in the plant
and that in August 1942 , another was found asleep on the job . Both were
disciplined by a week off without pay , and were thereafter restored to their
positions.
CONCLUSIONS
The record demonstrates that the respondent was at all times unalterably
opposed to the organization of its watchmen and that it so informed many
of them.
When the Union began its drive in mid=July, the respondent, through Lisiecki,
promptly took energetic counter-measures by threats, warnings, and requests
for reports on its progress and of the identity of those behind it.
Simultaneously, Schimeck passed on to his sergeants Erwood's direction to
the effect that the imminent swearing in of the watchmen as civilian auxiliaries
"was the time to discharge" those with whom "they were having trouble."
Lisiecki chose Moore, whom he knew to be a union member, and McCurley and
Massey whom he identified as the "two sneaks" who were, as is shown by the
record, the outstanding proponents of the Union. Henman chose Martin who
was, so far as is revealed by the record, the sole member of the Union on his
shift of about 20, and who had solicited and spoken for the Union among his
colleagues. Their nominations for discharge were swiftly approved by Schimeek
"arid °Erwood-and ~a 'week, after the Union had come into the open, its four
leaders were out of the plant.
The respondent advanced reasons for dispensing with their services which,
when viewed in the light of its policy of intentional leniency, expounded by
Erwood, and contrasted to its toleration of or discipline by a week's lay-off
for intoxication and sleeping in the plant by other watchmen, cause the under-
'signed to conclude that based thereon, those discharged would not normally
have-suffered-so severe a penalty. Thus Moore, who was allegedly "slow",
was nevertheless shown to have been about to be fitted with a uniform when
precipitately ousted ; McCurley had once left the plant on a five minute errand ;
1
BUDD WHEEL C'ODIPANY 1359
Massey's alleged faults had been borne by the respondent in equanimity for a
period of more than six years and the vlast specified instance of an alleged l
breach of conduct by him had been personally waived by Erwood sometime
before his discharge; and Martin, although it be found aigueiido that he
complained of Henman to others on his shift, cannot, under the circumstances
revealed by the record, be considered to have been thereby rendered properly
subject to the severest penalty at the respondent's disposal.
i The respondent relies in some degree upon the Army's action in swearing
in its watchmen to explain and justify its discharge of the employees involved.
By doing so, it tacitly agrees that its action was extraordinary. Erwood testified
that the new conditions permitted of only "loyal" employees in the positions of
watchmen. No "disloyalty" to the United States on the part of the dischargees
is alleged or revealed by the, record. It is demonstrated, however, that the
respondent considered their efforts to organize the watchmen to have been a
manifestation of disloyalty to itself. Prompt and drastic punishment was admin-
istered by the respondent. It dismissed them and thereby took the most effective'
action at its command to wash out the virus of unionism in its plant-protection
department. It is therefore clear, and the undersigned finds, that the respondent
did not discharge Moore, McCurley, Massey, and Martin for the reasons advanced
by it, but took advantage of the fortuitous coincidence of the swearing in of the
watchmen in an effort to cloak what is found to have been its actual motive for so
doing, i. e., its desire to rid itself of them because of their membership in and
activities on behalf of the Union.10
- The undersigned finds that by discriminatorily discharging Moore, McCurley,
Massey, and Martin, the respondent discouraged membership in the Union and
thereby 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 set forth 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
obstructing commerce and the flee flow of commerce.
100n July 28, 1942 , the Union filed its oisginal charge with the Regional Office of the
Board , alleging that the respondent had acted in contravention of Section 8 (3) in discharg-
ing the four employees involved On August 19, 1942 . the respondent offered and on August
20, Moore accepted employment with the iospoident as an inspector at an increase in pay
Moore was still so employed at the time of the healing . but testified that he desired reinstate-
ment to his position as watchman On August 25 McCulley accepted eniployment as a null-
wright at an increase in pay, at the Edward G Budd Manufacturing Company, of which
Erwood is also director cf personnel McCuiey continued his employment until January 21,'
1943 , when he resigned . lIe testified that' he did not desire reinstatement 'During the
latter pact of August, Massey and Martin were similarly offered employment in jobs other
than as watchmen, and on September 4. 1942, were again notified to that effect by registered
mail Massey iclected the ofter , because as he informed Eiwood, lie would lose his plant
protection seniority if he accepted it. He testified that he desired reinstatement to his former
position Martin did not accept the offer and testified that lie did not desire iemstate-
nient. The respondent contends in its answer that such offers of employment demonstrated
"its good faith ", presumably in discharging the four watchmen . The undersigned rejects its
contention It is clear that the policies of the Act would not be eftectuated if an employer
were permitted with impunity to disci iminate against certain employees in order to frustrate
the union zttion of a particular department ofrhis large plant , provided he thereafter offered
them employment elsewhere , in or out of the plant
1360 , DEICISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Since it has been found that the respondent has engaged in and is engaging,
In certain unfair labor practices , it will be recommended that it cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies .of the Act.
It has been found that the respondent has discriminated in regard to
the hire and tenure of employment of Roy Moore , Norval Massey , Ralph McCurley,
and William J. Martin. The undersigned' will therefore recommend that the
respondent offer Moore and Massey immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice to'their, seniority
and other rights and privileges . 11 The undersigned 'will further recommend
that the respondent make whole Moore , Massey , McCurley , and Martin for any
loss of pay they may have suffered by reason of the respondent 's discrimination
against them , by payment to each of them of a sum of money equal to the
amount lie normally would have earned as wages from the date ' of the dis-
crimination against him as follows :
Moore : to August 20, 1942 , when he was employed by the respondent
Massey : to the date of the offer of reinstatement by the respondent
McCurley. . to August 25 , 1942, when he was employed by The Edward
G. Budd Mfg. Co. and no longer desired reinstatement by the respondent
Martin: to August 22, 1942, when he secured other employment and no
longer desired reinstatement by the respondent,
less his net earnings during said period."
Upon ,the foregoing findings of fact , and upon the entire record , the under-
signed makes the following : . ;
CONCLUSIONS of LAW
1. International Union, United Automobile, Aircraft and Agricultural Im-
plement Workers of America, C I. 0, Local 114, is a labor organization, within
the meaning of Section 2 (5) of the Act
2 By discriminating in regard to the`; hire and terure of employment of Roy
Moore, Norval Massey, Ralph McCurley, and William J. Martin, thereby dis-
couraging membership in the Union, the respondent has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8 (3) of the Act.
3 By interfering with, restraining, and coercing its employees, the respondent
has engaged in and is engaging in unfair labor practices, within the meaning
of Section 8 (1) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Budd Wheel Company, Detroit,
Michigan, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
u Since McCutley and Martin disclaimed any desire for reinstatemi nt, the usual recom-
mendation that the respondent offer them reinstatement will not be made.
iz By net earnings" is meant earnings less expenses, such as for transportation, room, and
board, mcuired by an employee in connection with obtaining work and working elsewhere
than for the respondent, which would not have been incurred but for his unlawful discharge -
and the consequent necessity of his seeking employment elsewhere Sce Matter of Crossett
Lumber Company and United Brotherhood of Caipenters and Joiners of America, Lumber and
Sawmill Workers Union, Local 2590, 8 N L R B 440 Monies received for ,work performed -
upon Fedeiai, State, county, niunidipal, of other work-relief projects shall be considered as
earnings See Republic Steel Corporation v. N. L R. B., 311 U S. 7.
BUDD WHEEL COMPANY 1361
(a) Discouraging membership in International Union, United Automobile,
Aircraft and Agricultural Implement Woikers of America, C. I. O, Local 114,
or any other labor organization of its employees, by discharging, refusing to
reinstate, or otherwise discriminating against its employees in regard to the
hire and tenure of their employment, or any term or condition of empioynient ;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the 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 undersigned finds will
effectuate the policies of the Act :
(a) Offer to Roy Moore and Norval Massey immediate and full reinstatement
to their foimer or substantially equivalent positions without prejudice to their
seniority and other rights and privileges ; i
(b) Make whole Roy Moore, Norval Massey, Ralph McCurley, and William
J Martin by payment of a sum of money to each of them in the manner set forth
in the section entitled "The remedy" above;
(c)' Post immediately in conspicuous places throughout its Detroit, Michigan,
,plant, including the premises occupied by its watchman, and maintain for a
period of at least sixty (00) consecutive 'days, notices to its employees stating
that the respondent will not engage in the conduct from which it is recommended
that it cease and desist in paragraphs 1 (a) and (b) hereof; that it will take
the affirmative action set forth in paragraphs 2 (a) and (b) hereof; and that
the respondent's, employees are free to become and remain members, of Inter-
national Union, United Automobile,' Aircraft and Agricultural Implement
Workers of America, C I. 0., Local 114. and the respondent will not discriminate
against any of its employees because of membership in or activity on behalf of
that organization ;
(d) Notify the'Regional Director for the Seventh Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply herewith
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it will comply with the foregoing recommen-
dations, the National Labor Relations Board issue an' order requiring the re-
spondent 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 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of
the order transterring the case to the Board, pursuant to Section 32*of Article II
of said Rules and Regulations, file with the Board, Shoreham Building, Wash-
ington, 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 notions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board, request therefor must.be made in writing to the
Board within ten (10) days from the date of the order transferring the case
to the Board.
JosEr L: HEI, TOFN, '
Trial Examiner
Dated March 4, 1943.