D. W. Onan & Sons

National Labor Relations Board - Board Decisions

Jun 8, 1943

50 N.L.R.B. 195 (N.L.R.B. 1943)

In the Matter of DAVID W. ONAN, C. WARREN ONAN AND ROBERT D.
ONAN, GENERAL PARTNERS IN A LIMITED PARTNERSHIP, DOING BUSINESS
As D. W.,ONAN & SONS, and LOCAL 1139, UNITED ELECTRICAL, RADIO
MACHINE WORKERS OF AMERICA, C. I. O.
Case No. C-2567.-Decided June 8, 1943,
DECISION
AND
ORDER
On March 29, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and that it had not engaged in certain other unfair labor practices,
and recommending that it cease and desist from the unfair labor
practices found and take certain affirmative action, as set out in the
copy of the Intermediate Report attached hereto, and that the com-
plaint be''dismissed as to the remaining allegations. Thereafter the
respondent filed exceptions to-the Intermediate Report and a brief
in support of the exceptions. Oral argument, in which the respond-
ent and the Union participated, was had before the Board on May
25, 1943. The Board has considered the rulings of the Trial Exam-
iner at the hearing and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed. The Board has considered
the Intermediate Report, the respondent's brief and exceptions, and
the entire record in the case, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the ex-
ceptions and qualifications noted below :
1. The Trial Examiner found, in view of the testimony of Thole,
that the respondent's report to the Board, prepared on November
16, some 2 weeks after Lorenz's discharge, and listing the reasons'
for his separation, was patently an afterthought. We concur in this
finding for the additional reason that the report included among the
alleged criticisms of Lorenz several matters which occurred after the
discharge.
2. The Trial Examiner found that James W. Murphy was dis-
charged on February 3,,1943, because of his union membership and
50 N L. R. B, No. 35.
195
196 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities. We,do not concur in this finding. While the matter is
not entirely free from doubt, we feel that the evidence is insufficient
to warrant a finding of discrimination against Murphy because of
his union membership and activities. We find therefore, that the
allegation of the complaint that, Murphy was ,discriminated against,
within the meaning of Section 8 (3) of,the Act, is without support.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, David W. Onan, C. War-
ren Onan and Robert D. Onan, general partners in a limited part-
nership, doing business as D. W. Onan & Sons, Minneapolis, Minne-
sota, its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging meibership in Local 1139, United Electrical,
Radio & Machine Workers of America, affiliated with the Congress
of Industrial, Organizations, or any other labor organization of its
employees, by discharging or-refusing to 'reinstate any of its em-
ployees or in any other manner djsciiminating in regard to their
hire and- tenure- of 'employment,, or any term or condition of
-employment;
(b)` Yn; any other manner interfering with, restraining, or coerc-
ing, 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 con-
certed activities for the purposes of collective bargaining, or other,
mutual aid or protection; as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
•(a) Offer to Gerald Gavenda and Emory Lorenz immediate and
full reinstatement .to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges ; -
(b) Make whole the said Gerald Gavenda and Emory Lorenz for
any loss of pay they may have suffered by reason of the discrimina-
tion against them, by payment to each of them of a slim of money
equal to the amount which each would, normally have earned as
wages during the period from the dates of the discrimination, i. e.,
September 12, 1942, as to Gavenda, and November 3, 1942, as to
Lorenz, to the date of the respondent's offer of reinstatement, less
the net earnings of each during said periods;
(c) Post immediately in conspicuous places in and about its plants
in Minneapolis, Minnesota, and maintain for a period of at least
D. W. ONAN & soars - 197
sixty (60) consecutive days from the date of posting, notices to its'
employees stating : (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in,paragraphs I
(a) and, (b) of this Order; (2) that the respondent will take the
affirmative. action set forth in paragraphs 2 (a) and (b) of this
Order; and (3) that the respondent's employees are free to become
or remain members of Local 1139, United Electrical, Radio & Ma-
chine Workers of America, affiliated with the Congress of Industrial
Organizations, and that the respondent will not discriminate against
any employee because of his membership or activity in any such
organization;
(d) Notify the Regional Director of the Eighteenth Region in
writing within ten (10) days from the receipt of this Order what
steps the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that ,the Complaint, insofar as it
alleges that the respondent discriminated against James W. Murphy
and Swan Oscar Lindman within the meaning of Section 8 (3) of
the Act, be, and it hereby is, dismissed.
INTERMEDIATE REPORT
Mr. Harry Brownstein, for the Board.
Mr. R. H. Fryberger, of Minneapolis, Minn., for the respondent.
STATEMENT OF THE CASE
Upon a second amended charge duly filed by Local 1139, United Electrical,
Radio & Machine Workers of America, affiliated with the Congress of Indus-
trial Organizations, herein called the Union, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Eighteenth
Region (Minneapolis, Minnesota), issued its amended complaint dated Febru-
ary 12, 1943, against David W. Onan, C. Warren Onan and Robert D. Onan,
general partners in a limited partnership , doing business as D. W. Onan &
Sons, of Minneapolis, Minnesota, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 ( 1) and ( 3) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the amended complaint together with notice of hearing thereon were duly
served upon the respondent and the Union.
With respect to the unfair labor practices , the amended complaint alleged
in substance: (,1) that from on or about July 1, 1937, to the date of issuance
of the complaint, the respondent questioned its employees with respect to their
union membership and activities ; engaged in surveillance of union members
and meetings ; ' and discouraged its employees from remaining or becoming
members of the Union; (2) that the respondent on or about September 12,
1942, discharged Gerald Gavenda, on or about November 3, 1942, discharged
Emory Lorenz, and on or about February 3, 1943, discharged James W. Murphy,
and since said dates has refused to employ these employees for the reason that
they joined and assisted the Union and engaged in concerted activities ; and
(3) that on or about September 9, 1942, the respondent refused to hire Swan
536105-44-vol. 50-14
198 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oscar Lindman, ' an applicant for a job with the respondent , and has since
refused and failed to hire him because of his union membership and activities.
On February 16, 1943, the respondent filed its answer, denying that it had
engaged in the unfair labor practices, alleged. -
Pursuant to'notice , a hearing was held at Minneapolis , Minnesota , on Feb-
ruary 25 and 26, and on March 2 and 3, 1943, before Peter F. Ward, the under-
signed Trial Examiner duly designated by the Chief Trial Examiner. The
Board and the respondent were represented by counsel, and each participated
in the hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all
parties.
At the conclusion of the hearing, the undersigned granted, without-objection,
a motion of counsel for the Board to conform' the pleadings to the proof with
respect to names, dates and other minor variances. Oral argument, partici-
pated in by the Board and the respondent, was thereafter had upon the-record.
While the parties were advised of their right to file briefs with the undersigned,
no briefs were filed.
Upon the entire record thus made, and from his observation of the wit-
nesses, the undersigned makes, in addition to the above, the following:
FINDINGS OF FACT
N
1. THE BUSINESS OF THE RESPONDENT
The respondent is a limited partnership, organized and existing under and
by virtue of the laws of the State of Minnesota, with its principal office and
place of business in Minneapolis, Minnesota, where it is engaged in the manu-
facture, ,sale and distribution bf electrical power plants and equipment. It
operates three plants in Minneapolis, Minnesota, namely : the University Ade-
nue plant , at 2515 University Avenue, herein called the University plant; the
Arrowhead plant, at 1111 Stinson Boulevard ; and the Royalston Avenue plant,
located at 43 Royalston Avenue, herein called the Royalston plant'
The principal raw materials used by the respondent consist of steel, cop-
per, aluminum, brass and copper wire. During the, calendar year 1942, the
total purchases of such raw materials for its University and Royalston plants
amounted to approximately $5,580,000, of which approximately 60 percent rep-
resents raw materials purchased in States other than in the State of Minne-
sota, and transported in interstate commerce to its University and Royalston
plants in Minnesota. During the calendar year 1942, the total sales of finished
products of its University and Royalston plants amounted to approximately
$8,525,000, of which approximately 99 percent represents finished products
sold and transported in interstate commerce from the respondent's University
and Royalston plants in Minnesota to purchasers located outside of the State
of Minnesota. -
The, respondent is presently wholly engaged in manufacturing and selling
its products in pursuance of contracts with various departments of the United
States Government.
Its employment roll has risen from 144 employees in December 1940, to 1992
employees as of March 1, 1943.
H. THE ORGANIZATION INVOLVED
Local 1139, United Electrical, Radio & Machine Workers of America,affiliated
with the Congress of Industrial Organizations, is a labor organizatio' admit-
ting,to membership certain employees of the respondent.
1 The University and Royalston plants are alone involved herein.
D. W. ONAN & SONS 199
M. THE UNFAIR LAL'OR PRACTICES
A. Interference , restraint and coercion
At times material herein, Robert Onan was one of the general - partners, of the
respondent ; Steen Eklund was general superintendent of all the respondent's
plants; William Hanson was the Royalston plant's night foreman in the punch
press department ; Arthur Randall was in charge of the employment , section of
the personnel department ; Elton Peterson was a supervisor at the University
plant; Linol Clem was foreman of the drill press cylinder department of the
University plant; and Harley Hedlund was the University plant's foreman of
the sub -assembly department . All of these representatives of the respondent
are hereinafter separately considered in connection with the instant proceeding,
and their activities detailed.
General Partner Onan
Robert Onan supervises the respondent 's personnel and employment policy
and, until September 1942, had sole charge of employment . Commencing, about
December 1940 the respondent which then employed 114 persons , expanded its
operations to such an extent that it increased its staff to 328 employees in
December 1941, to 1716 in December 1942, and by March 1, 1943 it engaged
1992 employees.
In February or' March 1941 the respondent adopted a form of application
for position , which required the applicant for a position to answer, among
other questions , the following : "Are you a member of any organization, lodge
or society ?-Name all ." 2 Onan testified , in substance , that applicants for a
position with the respondent , in answering the above question-, ',were expected
to and did, on occasion , disclose their union affiliation . He also testified:
Q. Did you make it a practice of inquiring concerning union affiliations?
A. If on the man's application he stated he was a member of a union, I
would ask him what union, and it is possible that I made the comment that
there was no union in our plant for his information or in general
discussion.
bnd on cross-examination , he further , testified :
Q Now, I believe you testified , Mr. Onan, that sometimes when an appli-
cant for , work came up to fill out an application you discussed unions, and
as, I got your testimony , for his information , the general discussion?
A. In general discussion many times a man stated he-was a member of-
I am speaking of my experience in interviewing men-that he was a mem-
ber of the union, and sometimes he would ask me if there was a union in
the shop , and I would say1no, and sometimes during the discussion I would
say, you are a member of the union , we have no union here, for your
information . It was in a discussion [ Italics added ]
2 The respondent sought to justify the use of this question in its application blank, as
having been directed by the United States Navy Department The Navy Department in a
communication under date of January 30, 1942 , did suggest that "A list of all organiza-
tions to which employees belong; including trade , professional , social, and fraternal , giving
the names and addresses of such organizations " be procured from applicants for a posi-
tion. Since the form had been adopted long prior to the Navy 's recommendation , since the
Navy ' s suggestion was not mandatory , and since the form later used by the respondent
did not include other recommendations made by the Navy, the respondent 's attempted
justification is without merit, and the undersigned so finds.
8 Upon advice of counsel , the respondent, on and after February 3, 1943, eliminated this
question from its application forms.
200 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
Arthur Kircher, an employee of the respondent since February 1942, testified
that when he filled out his application he answered the question above re-
ferred to by merely stating, "Yes," and that when interviewed by Onan, the
latter asked Kircher what he meant by "Yes." Kircher advised Onan that be
belonged to the Minneapolis Gas and Light Company union, to which Onan
replied, "The boys around here don't seem to like the union."'
Emory Lorenz, whose discriminatory discharge is found and discussed below
in Section III-B, testified that on November 4, 1942, when he was discussing
his discharge with Onan, the latter asked him where he had obtained the liter-
ature (Union) that he had "put out" around the plant, and Lorenz answered
that he had procured it from two other employees. Onan then inquired who
the other employees were, and Lorenz refused to name them i
Superintendent Eklund
Alfred Knutson, an emplpoyee of the respondent since May 26, 1942, testified
that at the time he was employed, he filled out the respondent' s- form of
application for employment, but did not answer the question, "Are you a
member of any organization, lodge or society?" Knutsen further testied that
at the time he was hired, Eklund, the respondent's superintendent, asked him
if there was a union at the place of Knutsen's last employment. Knutsen
replied that attempts to organize his former fellow workers were unsuccessful.
Thereupon Eklund averred, "There is no union here, . . . the boys didn't
want it."'8'
On February 13, 1943, according to employee Leonard Palmer, during a conver-
sation with Eklund concerning an anticipated wage increase which Palmer did
n'ot receive in full; Eklund asked Palmer what he thought about unions, and
what he could "see" in unions. Further discussion was had involving farming
and the dairy industry, which Palmer contended was "one sided between pro-
ducer and' distributor." Eklund replied, "You only have organized labor to,
blame for that." Eklund closed the interview with Palmer with the state-
ment, "There is nothing worse than gangsterism.",°
Foreman Hanson
Employee Knutsen testified that a few days following Gerald Gavenda' s, dis-'
charge on September 12, 1942,8 he talked to Hanson and said, "So Gerry [Gavenda]
4 Onan did not deny Kircher's statement, but stated that he did not "recall" asking the
question' In view of Onan,s admission that on occa,ion be ':made the comment that there
was no union in our plant for his information or in general discussion," the undersigned
credits Kirciier's testimony as above set forth, and finds that Ouan made the statement
substantially as testified to by Bucher I
8'Onan did not categorically deny Lorenz's testimony in connection with the "literature
He admitted' having a conversation with Lorenz on the. morning after the.latter's dis-
charge, and testified, "I think he asked me the reason he was discharged, and, I told' him
I wasn't sure, that I was sure lie knew, and I think that was the only, discussion." Under
the circumstances, the undersigned credits the testimony of Lorenz in this connection, and
finds that Onan did ask Lorenz concerning his distribution of union literature, and for the
names of other employees involved. -
° Eklund' did not deny Knutsen's testimony in this connection He testified that lie did
not "recall" any statement like that The undersigned ciedits the positive testimony of
Knutsen
4 Eklund did not specifically deny that he had asked Palmer what the latter could "see"
in unions , and testified that he did not "think" he had. He, further, testified that he did
not "remember" using the' "gangsterism" phrase, and stated that he thought Palmer men-
tioned that subject Under the circumstances, and the record, the undersigned credits
the testimony of Palmer in this, connection, and finds that Eklund made the statements
ascribed to him by Palmer
8 Gavenda's discharge is discussed in detail in Section IIT-B below
D. W. ONAN & SONS 201
got laid off," to which Hanson replied, "Yes-Gerry was a good worker too.
If the union got in here, it [would] just spoiled (sic) things in here." Knutsen
also testified:
Q. Did you at any time have any further discussions with Hanson about
the union?
A. Yes, sir. I was coming from the tool room, I took a die out, and on
the way back Hanson walked with me back, and asked me, he said, "I sup-
pose you signed up with the union?" and I said, "No, I don't know anything
about it," and he said, "You mean to tell me you don't know anything about
it?" 9
Vendel Quist, an employee, testified that during November 1942, and following
the discharge of Gavenda, Foreman Hanson asked Quist if he "had heard any-
thing more about the union," and on another occasion, about a week later,
Hanson talked to Quist at the latter's machine and "he [Hanson] said he hoped
the union didn't go in until after the first of the year so we would get our
bonuses anyway." 10
Employee Raymond V. Honnold testified without contradiction and the under-
signed finds, that during November 1942, Hanson stopped at his machine
during working hours and asked him if Edward Cramble" had him `sign up in,
the union yet." Honnold replied that Cramble had not said anything to him-
concerning the Union. Hanson rejoined that he thought the Union was "probably
coming in"'the plant but he "hated to see it because the company had always been
a good company to work for." (Italics added)
Personnel Director Randall
Emory Lorenz= made application- for a position with the respondent and
replied to the question, "Are you a member of any organization, lodge or so-
ciety?" as follows: "Boy Scouts, & A. F. L, Truck Drivers Local, Union No.
851, Willmar, Minn." He was interviewed in September 1942 by Arthur
Randall, who examined his application and asked him if he belonged to
"union 851," to which Lorenz replied that he "belonged to it and it had done
us a lot of good." Randall then told him, "We don't have a truck drivers union,
this is a non-union, and so long as you are not going to be a truck driver, it
won't have any implications (sic) with your working." Randall then, accord-
ing to Lorenz, asked Lorenz if he "thought, the union was all right ; . .", and
Lorenz replied that he thought "unions were all right in their place," and that
they had done him "a lot of good." Randall again stated, "You know, this is a
non-union shop here, and we have no union in this place." (Italics added)
Randall admitted having interviewed Lorenz. In this connection Randall
testified :
Q. And I believe. he [Lorenz]
longed to a union, did he not?
said, stated on his application that he be-
9 Hanson, on the other hand, denied stating to Knutsen that If the union "got in" It
"would just spoil things in here," but did testify, "I believe I did ask him if he belonged
to the union." In ' the circumstances, the undersigned credits Knutsen's testimony and
finds that Hanson made the statements substantially as testified to by Knutsen.
"Hanson admitted the conversation and testified, "My recollection of that is that I
came up to Mr. Quist's machine to check his wprk, and he asked me, as I remember it, if
I thought that the union coming in there would have any effect on the payment of the
bonus, and I said I hoped not, but I didn't know." The undersigned accepts Quist's version
of the conversation.
"As found below, Crambel was one of two employees who joined the Union on or about
September 5, 1942.
11 Lorenz 's discriminatory discharge is discussed in Section III-B below.
202 DECISIONS OF N'ATION'AL LABOR RELATIONS BOARD
P,
I A. I don't' remember. Is it here?
Q. He says that-
A. Yes, he belonged to some union at Willmar. Isn't that where he came
from T That's as I remember it.
Q. He says that you asked him what lie thought about unions, whether
they were O. K.
A. No conversation like that. I cannot remember any detailed conversa-
tion with him about the subject.
Q. Did you discuss with these men their union affiliations?
A. Yes. My purpose is to find out what manner of man sits there or
stands there seeking employment. I have to inquire into it one way and
another to find out how he thinks, what his interests are, what he has done,
what his alliances and affiliations are. Frequently the memberships that
he holds come into some discussion. I don't specifically remember' dis-
cussing his membership with Lorenz, and I would not ,say that I had not
done it. I don't remember. (Italics added.)
Q. Do you discuss with the men the fact that this is an open shop, so to
speak? -
A. Yes, I frequently said to a man, "You realize this is an open shop.
Will your membership interfere with your working here?" I have said
that a number of times. (Italics added.)
Q. That is in line with your effort to obtain information.
A. Yes, and to select an employee who will adjust himself with other
employees there, and be happy, and be able to do good work, and a satis-
factory volume of it.
Since Randall's testimony above does not specifically deny Lorenz's, and ad-
mits, among other things, that it is Randall's common practice to discuss union
membership with applicants for jobs, the undersigned credits Lorenz's testi-
mony as set forth above and finds that Randall made the statements attributed
'to him by Loy enz.
Supervisor Peterson
Arthur Kircher testified without contradiction acid the undersigned finds that
on February 15, 1943, while he was wearing his, union button, Supervisor Peter-
son approached him. Kircher further testified :
He [Peterson] asked me, he said, "I see you have your union button on,'
and I said, "Yes," and he said, "You must not care whether you live or die,"
and I said, "Why?" and I said, "I didn't know if they are going to kill me,"
and he said, "-`They are going to try like hell," and I said, "Let them go
ahead and try.""
Subsequent to the above conversation and on the same day, Peterson again
talked to Kircher concerning union rates for piece work for the type of work
performed by Kircher, and asked the latter how much he expected receive under
union rates. Kircher stated that he expected to get "maybe a dollar an
hour . . ." Thereafter Peterson presented Kircher with "some figures" with
a statement to the effect that the respondent could "farm" out the work that
Kircher was doing to some outside company for ' less than it would cost at the
union scale. It is apparent that Peterson indicated that the respondent objected
,to Kircher's union membership and indirectly threatened that in the event the
Union organized the respondent's employees, Kircher's work would be "farmed
out" and he would be deprived of his job, and it is so found.
za Peterson, although not shown to be unavailable, was not called as a witness.
D. W. ONAN & SONS
Foreman Clem
203
Leonard Palmer testified, without contradiction, and the undersigned finds,
that on the evening of December 3, 1942, while in the wash room at respond-
ent's plant, someone unknown to Palmer made the statement that "people
that joint unions are crazy," and that Foreman Clem asked Palmer, "How do
you stand, on the union?" Palmer expressed a preference for a particular
labor organization.
Foreman Hedlund
Mamie Supre, an employee, testified that on February 12, 1943, she was
called to the office of Foreman Hedlund. She went to his office as directed,
and concerning what there transpired, she testified :
Q. Will you tell us what it was?
A. I said, "What did you want to see me about?" and he said, "What's
this I hear about a union coming into the plant?" and I said, "That's right."
And he said, "Have you signed up?" And I said, "Yes," and he said,
"In other words, you belong?" And I said, "That's right," and he said,
"Do you think you are going to profit by it," and I said, "Personally,
yes," and he said "Well," - he didn't know himself whether they would
or not, but he doubted it very much, and I said, well, it was not for him
or Onan to say whether a union should be in there, it was up to the people
themselves, if the people wanted a union in the plant, that was their
business, Onan and the foremen didn't have a thing to say about it. And
he says, "Well, that is true, and,tbe reason I called you in is I just wanted
to know, I know there has been talk about union going around," and I told
him I was not trying to bide it. And he said, "From now on you are
going to be watched, people will be around here you will not know, 'but
they are going to watch you definitely, so you just watch yourself." And
I said, "I am not that dumb, if I was to organize a place, I have morning,
noon and night to do it, and I would not try it on company's hours,"
he said, "I am glad we understand one another."
s s s s s
Q. How -did the conversation conclude?
A. Well, I got up and I said, "No hard feelings?" and he said, "No, there
won't be any- hard feelings," and I said, "I hope not," and he said, "I just
want you to understand that you are going to be watched from now on."
(Italics added.)
Hedlund, on the other hand, when asked to tell about this, conversation,
replied :
A. I tried to point out to her that I wanted no-I knew at the time
from other sources that she was a union more or less organizer, and she
seemed to be organizing, and so I told her I didn't want her organizing
or doing any union work during the working hours, and that I would keep
my eye on her to see that she did not do it. And that was about the
gist of the conversation.
Q. Anything said about what she did on her own time?
A. Oh, yes, she-I also mentioned it was none of my business what she
did on her own time, it was perfectly legitimate to go about her business
at that time, but I didn't want it happening on company time because
it was interfering with production which we needed at the' time.
204 DECISIONS OF N'ATION'AL LABOR RELATIONS BOARD'
Q. She stated that you called her into your office and you said to her,
"what's this' I hear about a union, have you signed up?" Was anything
of that sort said?
A. I don't remember anything like that.
Q. And she-said you asked her it she thought she would profit by it?
A. I don't remember anything like that, either.
Q. And that you stated to her that you just wanted her to know that
from now on she was going to be watched. Anything like that said?
A. She might have acquired that from what I just told you a little
while ago. -
The respondent contended, and its counsel in oral argument stated, that Supre
"was even passing out literature during working hours." There was no evi-
dence to support such contention. Hedlund did testify that he had a ieport
from a few of his supervisors, and that he himself had observed "That there
was a lot of talking going on, and monkey business . . . and it seemed like
when we put Mamie Supre at a- job, that we would not be able to find her at
that job, at least we would find her on different sides of the line at different
times." Neither Hedlund nor any other witness testified that Supre distrib-
uted union literature or talked about unions during working hours. Hedlund
-admitted that others besides Supre neglected their work at times and con-
-versed, but Supre was the only one he admonished because "She seemed to be
the sore spot."
From the above, the undersigned is convinced and finds that Supre did hot,
neglect her work to any greater extent than other employees in her depart-
ment ; that she had engaged in no union activities during her working hours ;
and that the conversation which took place at the time she was called into
Iledlund's office was substantially as testified to by her, plus -the additional
fact that she was warned not to engage in union activities during working hours,
a pretext used to engage her in the conversation to which she testified.
Other supervisors
On or about December 8, 1942, the Union, by handbills passed out near the
entrances of the plants, advertised a meeting for the respondent's employees
to be held that evening at 8: 30 p. in. at the Union's hall. According,to the
uncontradicted testimony of Alfred Rick, an employee, whose testimony the un-
•dersigned credits,. Jack McPhail, foreman in the engineering department, Ted
Hannigan, foreman on engine assembly, Kenneth Lundeen, foreman in the
shipping department, and one Hoover, sub-foreman of generator assembly went
to the Union's meeting where they remained for about 15 minutes, and-then,
at the request of union officials, left. Lundeen;" called as a witness by the'
Board,, testified in substance that he, in company with Hannigan and two
non-supervisory employees, attended the meeting, and that he and Flannigan
.left when all foremen and supervisory employees were asked to leave. Lundeen
stated that he had heard that the Union's scale of wages for shipping depart-
ment employees was lower than what his men were receiving, and that he
had gone to the meeting to ascertain the facts. Onan testified that shortly
after this meeting, Hannigan advised him that he-had attended and had been
requested to leave. Onan further testified that prior to the meeting Hannigan
=had not talked to him concerning it.
The respondent contends, in effect, that it-was in no way responsible for the
1' McPhail , Hannigan, and Hoover, although not shown to be unavailable, were not
called as witnesses.
P. W. ON.A,\ & SONS ,205
foremen's attendance; that the handbills advertising the meeting were addressed
to "all" employees of the respondent, and thus included "foremen"; and that it
was proper for Lundeen, who was interested in the welfare of the men who
worked for him, to attend the meeting in order to find out whether the Union's
wage scale for shipping-department employees was more or less than that paid
by the respondent. These contentions are, under the circumstances, without
merit. At the time of the meeting, as is found and set forth below, two em-
ployees had been discharged for union activities, the matter of their discharge
having been known to the respondent's employees. While the foremen were not
permitted to remain at the meeting, they were in the Union's hall for about 15
minutes, and thus had sufficient time to note which of the employees attended.
There is no contention that the foremen would be permtited, or were seeking to
join the Union. Lundeen, on the contrary, was seeking verification of a
purported fact, which if true, could well have been used to discourage member-
ship in the Union. Since the status of these foremen is unquestioned, their ac-
tion in attending the Union's meeting is binding upon the respondent,16 and con-
stitutes surveillance, and the undersigned so finds
The undersigned finds that the respondent, by the acts and statements of Onau,
Eklund, Hanson, Randall,, Clem, Peterson, and Hedlund, above related, and by the
foremen's attendance at the December 8, 1942 union meeting as above set forth,
from on or about March 1, 1941, to the date of the issuance of the amended
complaint herein, questioned its employees with respect to their union member-
ship and activities, engaged in surveillance of union members and union meet-
ings, and discouraged its employees from remaining or becoming members of
the, Union, and thus interfered with, restrained, and coerced and is interfering
with, restraining, and coercing its employees in the exercise of the rights guaran-
teed them in Section 7 of the Act.
B. The discriminatory discharges
Gerald Gavenda was employed by the respondent on May 15, 1942, as a
machine operator on the night shift in the punch press department of the Royal-
ston plant, where he worked under the supervision of Foreman Hanson. From
the time he was hired until in or about September 1942, Gavenda had received
compliments for his work from Hanson, the last of which occurred about the
middle of August 1942, on which occasion he ran , 12,000 "laminations" in one
night., The average night's work on such "laminations" ran between 8,000,and
10,000.
In February 1942 several of the respondent's employees became members
of the Union. From February 1942 to on or about September 1, 1942, there was
slight union activity at the respondent's Royalston plant. On September 5,
Gavenda, in company with Edward Cramble, another employee, went to the
Union's headquarters and joined the Union. They, each received about 10-
application cards, and took them to the plant with them when they next re-'
turned to work on the evening of September 8, the day after Labor Day.
Gavenda, before going to work that night and while in the plant, talked to
employees concerning the Union, and passed out four or-five application cards.
He did this openly and without any attempt to hide his activities. Cramble
also distributed cards in the same manner. Gavenda and Cramble also dis-
cussed the Union with others during the "lunch" hour. Gavenda continued
such activities from on or about September 8 until September 12, and during
this time talked to about 15 employees concerning the Union , and succeeded in
13 See International Ass'n of Machinists v. N. L. B B, 311 U. S. 72.
4
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having one employee sign an application for union membership. Cramble, during
this time, did not obtain any signed cards.
On the morning of September 12, Gaverida turned in his time slip to Hanson
in the usual manner. Hanson proceeded to hand him a check in full for his
wages, stating that the respondent did not want Gavenda "around there no
more." Gavenda then asked why he was discharged and was told that his
work was inefficient Gavenda stated it "was a damn lie," and was advised
by Hanson to take the matter up with Superintendent Eklund. Later in the
same day, Gavenda saw Eklund and asked him' why he was fired. Eklund
replied that "he had a million reasons" why he could fire him. Gavenda then
asked him to put one reason in writing, and Eklund refused to do so. Eklund
told Gavenda he was fired "because you don't attend to work, for inefficiency."
On September 14, Gavenda returned to the plant and saw Eklund. Eklund
gave Gavenda a letter of recommendation, ° and a "release." 14
Hanson admitted that "at times" Gavenda was a good workman, but testified
that Gavenda made a practice of leaving his machine quite often, walking round,
and taking to other workmen. Hanson also testified :
Q. Over what period of time, commencing with his employment in May,
May 15, 1942, did you from time to time call his attention to the fact that
he was walking around and talking to the employees too much?
A. Well, I don't remember the exact time, I know that I called his
attention to it several times, and towards the last more often 18 (Italics
added.)
While Hanson denied that he had seen Gavenda distributing union' cards, he
admitted that he had heard that union activity was going on at the plant and ,
•Gavenda's connection therewith since shortly before Gavenda's discharge. In
this connection, Hanson testified :
Q. But you don't mean to say you didn't know anything about his [Ga-
venda's] distributing union cards?
A. I had heard from others but I didn't see or hear from him. (Italics
added.,)
Q Who did you hear from, what others, that- he had been doing that?
A. There is quite a few fellows working around there in the same plant,
and you are bound to hear things like that, I cannot name them • right
now.
As set forth and found above, Hanson in answer to an inquiry from Knutson
concerning Gavenda's discharge, stated that, ". . . Gerry (Gavenda) was a
good worker too."" At the, same time Hanson indicated it would "spoil things
in here" if the Union "got in."
18 To whom it may concern: •
September 14, 1942.
Subject : Gerald Gavenda.
For the past five months, Gerald Gavenda has been working with us as a punch press
operator. He has done his work well and is a steady, conscientious worker.
We have found him to be an honest, sincere man. His general character is good.
Sincerely yours,
D. W. ONAN & SONS.
SEA /tb [S] S. M EKLUND
S. M. EKLUND, Superintendent.
17 These findings are based upon a reconciliation of the testimony of Gavenda and
Eklund, and the resolution of conflicts therein.
18 Gavenda received a raise about the middle of August 1942
19 Hanson , while he denied other portions of the statement attributed to him by Knutson,
did not specifically deny this portion.
D. W. ONAN '& SONS 207
While the respondent contends, and elicited testimony' from Hanson and
Eklund, that Gavenda left his machine and spent too much time visiting other
employees, a number of witnesses whose testimony the undersigned credits,
testified that they, too, on occasion, left their machines and talked to other
employees, and that Gavenda) did so to no greater extent than they or_other,
employees. Gavenda's denial that he left his machine and talked to others
more frequently, than his co-employees is credited by the undersigned. In view
of the above, and the record, the hostility to the Union of Hanson and Eklund,
the time of Gavenda's discharge, the fact that Hanson had admittedly compli-
mented Gavenda for his work, and Eklund's recommendation above set out, the
undersigned is convinced and finds that Gavenda was not discharged because
of his alleged absences from his machine or his talking, that this was merely
-a pretext to justify his discharge, and that his employment was in fact termi-
nated because of his union activities: 0
Emory Lorenz was employed on September 8, 1942. Prior the the time he
was hired, and in September 1942, he was interviewed by Personnel Director
Randall who, as found above, advised him, "You know, this is a non-union shop
here, and we have no union in this plant." Later, when he was employed on
September 8, he was interviewed by George Thole, foreman and supervisor of
all relay departments in the respondent's plants. Thole testified that, since
Lorenz had taken a course as a jeweler, he could be used in the relay assembly, "
adjusting and working on relays. At the time of his employment Lorenz ad-
vised Thole that he would not take the position if the "no smoking" rule was
enforced, since he was "high strung," and could not go without smoking for 12
hours with only a "smoke" during the noon hour. Thole told Lorenz, "If you
want to smoke, you can go in the toilet two or three times a night, but don't
go in there wasting time." 21 Lorenz agreed to this. He was assigned to
work under Al Alsted, foreman of the night shift of the relay department, who
thereafter had occasion to commend Lorenz for his work.
Lorenz joined the Union on November 2, 1942, and on that same day re-
ceived from 7 to 10 union cards from employee Charles Mortoccio and one
Londrache, another employee, shortly before going to work on the night shift.
Immediately thereafter he passed out the cards to employees. Among'others,
lie gave one card to Alsted, and another to the foreman of the parts department.
Altogether, during the time before going to work and during the "lunch" hour,
on November 2, 1942, Lorenz discussed the Union with 20 to 30 employees.
Shortly after Lorenz reported for work on the evening of November 3,
Thole- told him, "Well, I can't use your services any longer." Lorenz asked
Thole for the reason for his discharge and was referred to Robert Onan. He'
attempted without success to communicate with Onan that day. On Novem-
ber 4, Lorenz talked to Onan and asked the latter why he was discharged.
Onan replied, "Well, we just cannot use you any longer, that's all," and advised
Lorenz that he "didn't fit into their plans, ..." 23 On this occasion as set
forth and found in Section III-A above, Onan attempted to learn who had
furnished Lorenz with union literature and, while Lorenz told him it was two
20 Edward Cramble, upon Gavenda's discharge, "laid low" for 6 weeks thereafter, and
refrained from activity in the Union's behalf during this period. The respondent's action
in discharging Gavenda had the desired effect.
21 While Thole testified that Lorenz was discharged, among other things, for smoking,
this testimony of Lorenz was not denied.
27 Thole's testimony that he told Lorenz on this occasion Lorenz was being discharged
for having been "too hot headed" and having refused to take orders is not credited. The
above finding is based upon Lorenz's credible testimony.
11 See footnote No. 5, supra.
i
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the respondent's bmployees, he declined to name them. Thole testified that
Lorenz was discharged for "not following orders, and as he was supposed to
do, and also for his hot headedness." He further testified and admitted insofar
as Lorenz's work was concerned he had told Lorenz ". . . that his work was
satisfactory, that we had no complaints along that line, . . ."
Following Lorenz's discharge, the respondent was advised by the Board's Re-
gional Office that the Union had filed charges in connection therewith. There-
after Thole sent for Alsted u and, with the assistance of another, prepared a
list of reasons for such discharge which was subsequently mailed to the Board.
In this connection Thole, on cross-examination, testified :
Q. And right there and then you asked Alsted for the reasons which have,
been sufficient to justify his discharge? (Italics added.)
A Yes, sir.
* s , * * * * m'
Q. And did Alsted submit such a report? '
A. Yes, sir.
The Alsted "report" was prepared on November 16, some 2 weeks after Lor-
enz's discharge, and as shown by Thole's testimony was patently an after-
thought.2i In the last analysis, the respondent contends that Lorenz was dis-
charged for not following orders and for being too "hot-headed." 20 An -incident
apparently relied upon to support his purported disobedience and "hot-headed"
'nature occurred on October 7, approximately 4 weeks prior to his discharge.
The record shows that on that occasion Lorenz spent 'approximately 3 hours
during the night attempting to break in a new employee on a certain process,
without success. In, his efforts to instruct the man an argument took place.
Yet Thole admitted that this incident did "not directly" play a part in Lorenz's
discharge. Moreover, Lorenz's testimony concerning the event, which the under-
signed credits, does not reveal a disobedience to orders or a "hot-headed" na-
ture. Thole also testified that twice before October 7, Alsted reported that
Lorenz "didn't want to take orders." It is significant to note that even if true,
these events, including the October 7 incident, occurred long before Lorenz's
-discharge. Furthermore, in'pursuance of Lorenz's request, Thole agreed to a
raise in Lorenz's wages,, to be effective in the near future, about two weeks
prior to his discharge. At this time, as Thole testified, "everything was going
along fine."
According to Thole, about October 30, Lorenz spoke to one of the Onans and
threatened to quit if he didn't obtain his raise that day. Nevertheless, Thole-
testified that this alleged threat "may" have contributed to Lorenz's discharge.
Considering the time of his employment termination and the record, it is ap-
parent that Lorenz was discharged because of his union membership and
activities.
m Alsted joined the U. S. Coast Guard about 2 weeks prior to the hearing herein, and
hence was not available as a witness. -
25 Among the many alleged criticisms of Lorenz contained in the "report" are the follow-
Ing : "ugly and surly" disposition ; smoking ; "threatened to quit if lie didn't get a raise"
and several matters, which the evidence discloses, occurred after his discharge.
21 These were the reasons allegedly assigned by Thole when asked by Lorenz why he was
discharged The respondent also adduced proof to show that on one occasion Lorenz went
to sleep during working hours, and in one instance left his work before quitting time. As -
to the first matter, it is undisputed that Lorenz felt ill and was told to lie down by the
person in charge of the respondent's first aid station. With reference to the second mat-
ter, the evidence reveals that Lorenz had the permission of Foreman Aleted to leave his
work early and, pursuant to Alsted's suggestion, -wrote a note to Thole indicating that he
was quitting work before the end of his shift.
D. W. ONAN & SON'S -209
James W. Murphy was employed by the respondent on August 12, 1942, and
worked as a drill press operator in the University plant during the latter
months of his employment. He was discharged on February 3, 1943. During
the time of his employment, he received no complaints concerning his work.
He.was, in fact, complimented by Linol Clem, his foreman. During November
1942 he advised Foreman Clem that he was going to quit unless he received
more money. Clem told him that he "hated" to see him quit and sent him to
Eklund! This he did, and after receiving a raise, continued in his employ-
ment. Murphy received his raise in November and joined the Union on Novem-
ber 20. After joining the Union, he talked to other employees outside of
working hours and at times in the plant. He distributed from 100 to 150
union cards, with the suggestion that the men sign them and mail them to
the Union ; a substantial part of this type of activity was conducted in the
plant on his own time. About five employees who signed cards brought them
to him personally. He engaged in his union activities openly, without any
attempt at concealment. On February 3, during the afternoon, Murphy ad-
vised Clem that he would have no more cylinders on which to work within
an hour's time. Clem 'replied, "we can see what we can do, and perhaps there
is more [cylinders] in the warehouse for us." n As he anticipated, Murphy
ran out of cylinders. He looked for Clem and, not seeing him, went personally
to the warehouse to learn if there were cylinders present, and located 98 of
them. He was absent for 10 minutes, and while returning to his machine met
Superintendent Eklund. Following a short conversation, Eklund told him to
report to his foreman. Eklund, however, -reached Clem before Murphy, and
instructed Clem to discharge him. When Murphy reported to Clem, Clem ad-
vised him that he was "through."
It is the respondent's contention that Murphy was discharged because he did
not remain at his machine. Clem testified ;
Q. What kind of workman was he? [Murphy]
A. Well, he was sometimes a good worker, when he felt like working ;
other times if he didn't feel like working, he would not work so hard,
and would go away so much. Every once in a while I would catch him
way off in the other end of the building, and I would ask him what he
was doing over there, and he would just say he was looking around, or
something like that, and go on.
Q. I will ask you if you found him out at the warehouse one time?
A. No, I didn't catch him at the warehouse, not at any time.
Q. I mean the shipping dock or the incoming freight dock?
A. Yes, sir.
Yet Clem had never conveyed this alleged' information to Eklund, who was
responsible for Murphy's discharge. In this connection, Clem testified :
Q. What did Steen [Eklund] say to you? [at the time of Murphy's
discharge.]
A. What he told me?
Q. Yes.
A. He told me, Steen told me that I should get rid of him because he
had warned him so many times, there was no use keeping him around
any more.
27 Clem's denial of such a conversation is not credited by the undersigned. His ad-
mission that Murphy was usually "ahead" with his work makes plausible the testimony
of Murphy, upon which the above finding is based.
210 DECISION'S OF NATIONAL LABOR 'RELATIONS BOARD
r
I
Q. Did you report to Steen either at that time or any other time the
times you had warned him?
A. No, sir.
Q. Pardon?
A. No, I had not, I did not.
Eklund testified that, on one occasion he saw Murphy "Away up in the other
end of the shop," about 5 or 6 weeks before the termination of Murphy's em-
ployment, and spoke to Clem concerning it. The only other occasion on which
he spoke to Clem about Murphy's absence from his machine was the day he
ordered Murphy's discharge. The respondent also contends that Murphy's con-
duct was violative of its rules. It is undisputed„and the undersigned finds, that
on February 3, Murphy did not neglect his work and in fact attempted to
provide material which would increase his (lay's production. Moreover, Mur-
phy's testimony, which the undersigned credits, discloses that he had gone to
the warehouse on a previous occasion for a similar purpose, that Clem was in-
formed of this fact, and that Clem "didn't say anything one way or the other."
The foregoing facts, Eklund's animus toward the Union, and the entire record,
make it apparent that the reason for Murphy's discharge was his union mem-
bership and overt activities in its behalf, and the undersigned so finds. e$
The record discloses that, through the years, of the respondent's employees
hired, approximately 73/r percent indicated some union affiliation in their applica-
cations for employment. The 'respondent contends, in effect, that this is evi-
dence that no discrimination was practiced against Gavenda, Lorenz and Murphy.
In view of the entire record, and particularly the practice of the respondent
prior to February 3, 1943, in advising applicants for jobs that the respondent
had "no union in our plant" thus discouraging prospective employees from con-
tinuing any possible allegiance to a. union or from joining one, the undersigned
finds this contention to be without substance.
-The undersigned is convinced and finds that the respondent discharged Gerald
Gavenda on September 12, 1942, Emory Lorenz on November 3, 1942,' and James
W. Murphy on February 3, 1943, for the reason that these employees were mem-
bers of the Union and had engaged in union and concerted activities, and the
respondent thus discriminated in regard to their hire and tenure of employment,
thereby discouraging membership in. a labor organization ; by such discrimina-
tion, the respondent has interfered with, restrained, and coerced, and is inter-
fering with, restraining, and coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
C. The alleged discrimination against Swan Oscar Lindnian
Lindman testified that on or about September 10, 1942, he went to the office
of the respondent in search of employment; that he received the respondent's
application form and answered all the questions, including the question,. "Are
you a member of any organization, lodge or society?"; that in answer to such
question, he stated he was a member of the Union ; and that under the heading
of "Past employers", he, among others, wrote the name of the Uniion. ' He was
then the Union's financial secretary and had been since 1937. He further testified
that he talked to some person in the office who told him to fill out the application,
and who thereafter referred to the fact that he had been in the Union's "office"
for quite a long time. Lindman said "Yes, since 1937." According to Lindman,
his signed application was retained by his interviewer. Lindman testified as
28 Ekiund's testimony reveals that he was aware of the union activity taking place
among the respondent 's employees.
D. W. OMAN & SONS
1 211
follows concerning the conclusion of the conversation • "I didn't hear exactly what
he said, but I think as well as I can recall, we will call you, or something like
that." , Lindman left, did not subsequently hear from the respondent, and made
no efforts to again communicate with it. On the same day Lindman made ap-
plication'for a position with General Mills of Minneapolis. He was not employed
by this organization either. On cross-examination Lindman testified in sub-,
stance, that he was 56 years of age, that for 12 years prior to 1937 he had been
employed by C. W. Olson & Company, where he worked in steel and iron in con-
nection with the fabrication of material used in jails and penitentiaries. Lind-
man did not know the name of the respondent's representative with whom he
spoke, nor could he give an accurate description of him. No responsible individ-
ual connected with-the respondent had any recollection of him, nor could his
application be found among the respondent's records. The undersigned credits
the proof adduced by the respondent that such records are retained, and that it
was unable, to locate Lindman's application. The undersigned also credits
Lindman's testimony. 'k
Lindman's interviewer was apparently impressed with the fact that Lind-
man had been confined to office work for the 5 years preceding the time of his
application. From his observation of the witness the undersigned believes that
Lindman fully appears to be 56 years old. It is accordingly found that these
circumstances may well have convinced the interviewer that Lindham would
make a poor employee for the respondent. While the record discloses that the
respondent is hostile toward union organization, the evidence is insufficient to
support a finding that the respondent rejected Lindman's application because of
his union membership, and the undersigned so finds.30 The,complaint as to
Lindman should be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the respondent set forth in Sec-
tion III above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States and have led and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
The undersigned has found that the respondent discriminated in regard
to the hire and tenure of employment of Gerald Gavenda, Emory Lorenz and
James W. Murphy, thereby discouraging membership in the Union. In order
to effectuate the policies of the Act, it is recommended below that the respond-
ent offer to Gerald Gavenda, Emory Lorenz and James W. Murphy immediate
and full reinstatement to their former or substantially equivalent positions
"While the respondent employs men of an age equal to and greater than Lindman's, at
56 it can be considered that it is difficult to reapply one's self to wTfoik'of a nature demanded
by the respondents operations after a 5-years' absence from manual labor; Lindman indi-
cated to his interviewer that he was seeking employment entailing manual labor
30 The respondent, in some inst.inces, engaged applicants who revealed an affiliation with
a labor organization. It is undenied, moreover, that not every applicant was accepted as an
employee, and that many rejected applicants informed the respondent that they weie
unassociated with a union.
212 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
without prejudice to their seniority or other rights and privileges , and that
it make them whole for any loss of pay they may have suffered by reason
of the discrimination against them, by payment to each of them of a sum of
money equal to that which each normally would have earned as wages from
the date of their respective discharges to the date of the offer of reinstate-
ment, less their respective net earnings" during said periods.
The undersigned has further found that the respondent did not discriminate
in regard to the hire and tenure of employment of Swan Oscar Lindman. It
is recommended below that the complaint , as to him, be dismissed.
Upon- the basis of the above findings of fact, and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Lochl 1139, United Electrical, Radio & Machine Workers of America, affil-
iated with the Congress of Industrial Organizations, is a labor organization,
within the meaning of Section 2 (5) of the Act.
2. The respondent, by discriminating in regard to the hire and' tenure of
employment of Gerald Gavenda, Emory Lorenz and James W. Murphy, thereby
discouraging membership in a labor organization, has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 -(3) of the Act.
3. The respondent, by interfering with, restraining, and coercing its em=
ployees in the exercise of the rights guaranteed them in Section 7 of the Act,
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8, (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act. -
1 5. The respondent has not engaged in unfair labor practices within the
meaning of Section 8 (3) of the Act insofar as Swan Oscar Lindman is
concerned.
RECOMMENDATIONS
Upon the basis of the above findings of fact hnd conclusions of law, the
undersigned recommends that the respondent, David W. Onan, C. Warren Onan
and Robert D. Onan , general partners in a limited partnership , doing business
as D. W. Onan & Sons, Minneapolis, Minnesota, its officers, agents, successors,
and assigns shall: _
1. Cease and desist from :
(a) Discouraging membership in Local 1139, United Electrical, Radio &
Machine Workers of America, C. I. 0, or any other labor organization of its
employees, by discharging or refusing to reinstate any of its employees or in
any other manner discriminating in regard to their hire and tenure of employ-
ment, or any term or condition of employment;
(b) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their rights to self-organization, to form, join; or
assist labor organizations, to bargain collectively through representatives of
3i By "net earnings" is meant earnings less expenses, such as for tiansporfation, room,
and board , incurred by an employee in connection with obtaining woik and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
-of Crossett Lumber Company and United Brothei hood of Carpenters and Joiners of Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N . L It. B '440 Monies 'received
for work performed upon Federal, State, counts,, municipal, or other work-relief projects
shall be cousideied as earnings. See Republic Steel Corpm ation v. N. L. R. B , 311 U. S. 7.
D. W. ONAN & SONS 213
their own choosing , and to engage -in concerted activities for the purpose of
collective bargaining , or other mutual aid or protection, as guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Offer to Gerald Gavenda, Emory Lorenz,,and James W. Murphy immedi-
ate and full reinstatement to their former or substantially equivalent positions,
without prejudice to, their..seniority or, other rights and privileges;
(b) Make whole the said Gerald Gavenda, Emory ,Lorenz, and James W.
Murphy for any loss of pay they may have suffered by reason of the discrimi-
nation against them, by payment to each of them of a sum' of money equal to
that which each would normally have earned as wages during the period from
the dates of the discrimination, i. e , September 12, 1942, as to Gavenda ;
November .3, 1942, as to Lorenz ; and February 3, 1943, as to Murphy ; to the
date of the offer of reinstatement , less the net earnings32 of each during said
periods;
(c) Immediately post In conspicuous places in and about its plants in
Minneapolis, Minnesota, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stating: (1)
that the respondent will not engage in the conduct from which it is recom-
mended that it cease and desist in paragraph 1 (a) and (b) of these recom-
mendations; (2) that the respondent will take the affirmative action set forth
in paragraph 2 (a) and (p) of these recommendations; and (3 ) that the
respondent's employees are free to become or remain members of Local 1139,
United Electrical, Radio & Machine Workers of America, C. I. 0., and that
the respondent will not discriminate against any employee because of member-
ship in or activities oil behalf of that organization;
(d) Notify the Regional Director of the Eighteenth Region in writing within
ten (10) days from the receipt of this Intermediate Report, what steps the
respondent has taken to comply therewith.
It is also recommended that the complaint be dismissed insofar as it,alleges
discrimination against Swan Oscar Lindman.
It is-further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Direc-
tor in. writing that it will comply with the foregoing recoommendations, the
National Labor Relations Board issue an, order requiring the respondent to
take the-action aforesaid
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of
the order transferring the case to the Board, pursuant to Section 32 of Article
II of said Rules and Regulations, filed with the Board, Shoreham Building,
Washington, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof. As further proN ided in , said Section 33, should any party, desire per-
mission to argue orally "before the -Board, request therefor must be made in
writing to the Board within ten (110) clays from the date of, the order trans-
ferring the case to the Board.
PETER F. WARD,
Dated March 29, 1943 Trial Examiner.
32 See footnote No 31 , supra.
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