Falcon Tool Co.

National Labor Relations Board - Board Decisions

Mar 17, 1945

60 N.L.R.B. 1262 (N.L.R.B. 1945)

In the Matter of FALCON TOOL COMPANY and REGION 1, INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW-CIO)
Case No. 7-C-1112.-Decided March 17, 1945
DECISION
AND
ORDER
On August 21, 1944, 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 recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy, of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a brief. The Union has" not filed any ex-
ceptions.
Pursuant to notice and at the request of the respondent , a hearing
for the purpose of oral argument was held before the Board on Jan-
uary 9, 1945, in Washington, D. C. The respondent appeared and
participated in the argument. The Union did not appear.
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 of the Trial Examiner
except as hereinafter modified.
The Trial Examiner found, and we agree; that, by discharging Max
Walters, the respondent discriminated in regard to hire and tenure
of employment within the meaning of Section 8 (3) of the Act. Wal-
ters became a permanent employee of the respondent in February
1939, and worked continuously for the respondent until discharged
on February 29, 1944. He admittedly was a good worker, having
advanced from the wage rate of 90 cents an hour to $1.65 an hour,
the highest rate allowed for his job classification under regulations
of the National War Labor Board. During the 5-year period of his
employment with the respondent, Walters worked directly under the
60 N. L. R. B, No. 219.
1262
FALCON TOOL COMPANY 1263
supervision of Owner and President Ralph A. Edens. Walters was
working as an external grinder on precision jobs at the time of his
discharge.
Walters did not join the Union until shortly before the_ second
Board election which was held on October 27, 1942, and, according
to his uncontroverted testimony, he did not become openly active on
behalf of the Union until March 1943. Walters testified without,con-
tradiction that, on several occasions prior to the first, election, Edens
"preached" against having a "CIO" in the plant and told Walters that
the employees would do better "without having a CIO" and that "the_
best thing to do was to stay away from the CIO." Walters further
testified, without contradiction, that the Independent continued its
organizational activities during 1943 ; that employee Rudy Herman,
one of the leading protagonists of the Independent was persistent in
his efforts to' persuade Walters to change his affiliation from the CIO
to the Independent; and that finally Herman ceased his persuasive
tactics after a conversation that occurred in June or July 1943, during
which Walters and another member of the Union tried to convince
Herman that he should join the Union. After this incident, accord-
ing to Walters' undenied testimony, Edens, who previously had habit-
ually "hobnobb[ed]" with Walters "for hours at a time," rarely ever
spoke to Walters. Walters further testified that he decided to inform
Edens exactly where his sentiments lay rather thanhave Edens obtain-
information about Walters from "stool pigeons." Consequently, one
day in the first week of January 1944, according to Walters' testimony,
he went to Edens and told him of his membership in the Union, and
requested Edens to "play ball" with the Union ; Edens, in reply, said :
"Now, listen, I am going to tell you something. I will make a predic-
tion that in 5 years there won't be no CIO. The manufacturer is
going to have them wiped off the map. * * * My CIO men won't
be here three months, * * * I will get rid of them." Walters'
testimony as to this incident was undenied.1 Walters further testified,
without contradiction, that, 2 or 3 days after the above-mentioned con-
versation, Edens approached Walters in the plant and stated :
"* * * I am running this shop, no CIO, or you or anyone else.
I Walters' testimony with respect to this conversation, standing alone, does not un-
equivocally identify the date on which it took place, but leaves doubt as to whether the
incident occurred in January 1943 or January 1944 Reference to other testimony and
objective facts persuade us, however , that - January 1 944 is the correct date As we have
pointed out above , Walters did not become active in behalf of the Union until March 1943
Secondly, Walters testified that the conversation occurred about the time Edens signed the
bargaining contract and the record shows that Edens signed a tentative agreement in
March 1943 , and that the final contract was not executed by either party until December
1943 Moreover, Walters further testified that he and Edens had another conversation 2
or 3 days after the one of Januar } 3 or 4 , during which employee Henry Leesburg's name
was mentioned - Leesburg was first employed by the respondent on or about February 8,
1943 In view of this evidence , none of which was contradicted , we are convinced and
find that the conversation in question took place in January 1944.
1264 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
I am still the boss here and my orders go, and I don't want you or
anybody else to call another man a scab." Walters testified that, upon
inquiring what impelled Edens to make that remark, Edens replied,
"Well, Frank Schustler over there tells me you called him a scab";
and that in reply to this accusation, he [Walters] said : "I didn't call
him a scab * * * Now I say he is a scab and a rat, because what
I,told him is just this : `I said, you took away Schmierer's job, you
took away everybody's job that is for the Union and now you are
pushing Leesburg off the trucking job. You are doing all this work
.against the CIO. Do you know what the men will think of you
before long? They will string you on a tree. They will make a scab
out of you.,
The respondent contends that Walters was discharged because he
caused so much dissension among the other employees that they peti-
tioned the respondent to dismiss him for "the best of all concerned."
In support of its contention, 'the respondent relies on Walters' ad-
mission that he had an altercation with employee Joe Cusenza which
resulted in Walters' reporting Cusenza to the F. B. I.; the respondent
also claims that Walters reported six or seven other employees of the
respondent to the F. B. I., and further, that Walters called employees
who had not joined the Union "scabs" and "rats." According to Wal-
ters' uncontradicted testimony, shortly after the Allied invasion of
Italy in the spring of 1943, Walters and Cusenza were involved in a
controversy over matters connected with the war in Italy, and Cusenza
insulted Walters "very highly in a very unpatriotic way" and threat-
ened "to slit (Walters') back." After unavailing complaint to Super-
intendent Behrens, -as Walters testified, he reported Cusenza to the
Federal Bureau of Investigation.- Walters emphatically denied that
he had reported anyone else in the plant to the F. B. I. Walters testi-
fied that he was provoked into calling employee Oswald a "rat" be-
cause Oswald temporized for 9 weeks about joining the Union and
Walters believed Oswald to be spying on the Union on behalf of the
respondent. According to the respondent's contention, the immediate
cause for Walters' discharge was a petition signed by 24 of the 45
employees on the day shift requesting the respondent to discharge
Walters because:
We feel that he has been responsible for much of the dissension
that has been in evidence in the Falcon Tool Company in the past
months.
We feel that the morale of the employees will be better and we
can contribute more to the war effort if this cause of dissension
is removed.
Walters testified that about a week prior to his discharge employee
Clark told Walters that Foreman Ralph Riley was circulating a peti-
FALCON TOOL COMPANY 1265
tion in the plant requesting Walters' discharge. According to Walters'
uncontroverted testimony, he never saw the petition nor did the re-
spondent ever inform him as to the contents of the petition. Edens
testified that Riley and employee Charles Curtis submitted the petition
to Edens on February 23, 1944, and, that after he had checked "about
half a dozen" of the signatures on the petition and found them au-
thentic, and had summoned 8 or 10 of the signers to his office and ques-
tioned them as to their reasons for signing the petition, and had taken
signed statements from them, he discharged Walters upon the advice
of Sparkmen D. Foster, counsel for the respondent. A day or two
after his discharge, according to Walters' testimony, he returned to
the plant and asked Edens to state why he had discharged Walters.
Edens testified that he replied, "Max, I told you what it was, what it
was all about." Walters testified that he asked Eclens, "Why don't
you tell me why you fired me, you don't want me any more? I thought
you were running the shop. Now you- turn around and say it is for
the betterment of the boys. * * * Give me an answer. Tell me
yes or no, is it the Union or what is it?" and that Eclens replied in a
low voice, "What do you think I am, a damned fool?" Edens failed
to deny this testimony.
At the hearing the respondent did not produce the original of the
petition requesting Walters' discharge nor the statements allegedly
made and signed in Edens' office by signers of the petition. Foreman
Riley and employee Curtis who presented the petition to Edens were
identified at the hearing by employees Schmierer, Richert, Horvath,
'Gerds, and Walters as leading protagonists of the Independent.
Knowledge of their activity as such was thus widespread in the plant
and they were known as such by the respondent. The Trial Examiner
found, and we agree, that since the petition was presented to the re-
spondent by two active advocates of the Independent, one of whom was
a foreman, and since the signatures on the petition were secured during
working hours, the petition was essentially an Independent document
in origin, circulation, and purpose, and that through the active par-
ticipation of Foreman Riley and by reason of the circulation of the
document in the plant during working hours, the respondent shared
responsibility with the Independent for the existence and circulation
of the petition.
While it is apparent that the respondent knew of Walters' member-
ship in the Union about the time of the second election, in October
1942, Walters, according to his uncontroverted testimony, did not
become openly active on behalf of the Union until sometime in March
1943, and Edens' hostility toward Walters did not become apparent
until June or July 1943. Moreover, much of the respondent's con-
duct which the Trial Examiner finds to be violative of Section 8 (1)
of the Act occurred subsequent to the second election and continued
62 S 56 i-4 5-vol 60--31
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the time of Walters ' discharge . After the election of October 27,
1942, the respondent and the Union negotiated for more than 'a` year
before they finally executed a collective bargaining contract in
December 1943. We are of the opinion that , in view of the respond-
ent's unfair labor practices within the meaning of Section 8 (1) of
the Act both before and after the execution of the contract, Union
Representative Talhurst had good reason to believe that the respond-
ent would continue to engage in the commission of unfair labor
practices and for this reason Talhurst refused to submit to the re-
.pondent a list of the union members in the plant on January 10, 1944,
as he testified ; and we so find . Although the record contains some
evidence to the effect that Walters engaged in verbal altercations with
other plant employees , one of whom he reported to the . Federal Bureau
of Investigation after that employee had threatened "to slit [Walters']
back," we are of the opinion that absent Walters' union activities, the
respondent would not have discharged Walters because of such verbal
altercations . We also find , as did the Trial Examiner , that, in view
of the circumstances relating to the origin , circulation , and presenta-
tion to the respondent of the petition requesting Walters' discharge,
the petition was not the motivating reason for Walters' discharge.
Under the foregoing circumstances , including those set forth in the
Intermediate Report, we find, as did the Trial Examiner , that the
respondent discharged Max Walters and thereafter failed, to rein-
state him because of his membership in and activity on behalf of the
Union. By such conduct the respondent discriminated in regard to
hire and tenure of employment to discourage membership in the
Union, within the meaning of Section 8 (3) of the Act, thereby inter-
fering with , restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
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, Falcon Tool Company,
Detroit, Michigan , and its officers , agents, successors , and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in_ Region 1, International Union,
United Automobile, Aircraft &. Agricultural Implement Workers of
America ( UAW-CIO ), or in any other labor organization of its
employees , by discharging or refusing to reinstate any of its em-
ployees, or in any other manner discriminating in regard to hire or
tenure of employment , or any term or condition of, employment;
FALCON TOOL COMPANY 1267
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Region 1, International Union,
United Automobile,, Aircraft & Agricultural Implement Workers of
America (UAW-CIO) or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing 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 Albert Schmierer and Max Walters immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges;
(b) Make whole Albert Schmierer and Max Walters for any loss
of pay they may have suffered by reason of the respondent's dig-
crimination against them, by payment to each of them of a sum of
money equal to the amount which he normally would have earned as
wages during the period from the date of the respondent's discrimina-
tion against him to the'date of the respondent's offer of reinstatement,
less his net earnings during such period;
(c) Post at its plant in Detroit, Michigan, copies of the notice at-
tached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are riot altered, defaced, or covered by any other material;
(d) Notify the Regional Director for the Seventh Region, ii4
writing within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
NLRB 577
(9-1-44)
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization; to form
1268- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations, to join or assist Region 1, International Union,
United Automobile, Aircraft & Agricultural Implement Workers of
America (UAW-CIO) or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection.
We will offer to the employees named below immediate and full re-
instatement to their former or substantially equivalent positions with-
out prejudice to any seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of pay suffered as a result
of the discrimination.
Albert Schmierer
Max Walters
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organizatoin.
FALCON TOOL COMPANY,
(Employer)
By -----------------------
(Representative) (Title)
Dated ---------------------
Nom: Any of the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in ac-
cordance with the selective service act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
a
MR. GERARD D. REILLY, dissenting:
I do not agree with the Trial Examiner's finding, adopted by the
majority of the Board, that the discharge and the failure to rehire
Max Walters were discriminatory acts proscribed by Section 8 (3) of
the Act.
The record shows that the respondent knew of Walters' union ac-
tivities at the time of the second Board election on October 27, 1942.
Walters testified that after this election he had been reprimanded
for discussing a union meeting during working hours. Horvath
testified that before and after the election Behrens, respondent's shop
superintendent, had stated with reference to Walters' union activities :
"I hope you don't elect him to anything." In December 1943, a con-
tract containing a maintenance of membership provision was made
and signed by respondent and the Union. On Jt ppary 10, 1944, the
Union advised the respondent by means of sworn affidavit that it had
no members in good standing among respondent's employees. At the
FALCON TOOL COMPANY' 1269
hearing, a union witness 'testified to the effect that the Union had
members in the plant on January 10, 1944, but refused to submit their
names because of its belief that respondent would thereupon subject
them to discriminatory treatment. I do not believe this explanation
rings true, since only a month Before the Union had successfully in-
sisted upon the inclusion of a maintenance. of -membership provision
in its contract with respondent, and, further, since the record does not
afford a factual basis for the explanation. On February 29, 1944,
Walters was discharged.
Respondent alleges that it discharged Walters for causing dissen-
sion in the plant by engaging in verbal altercations with .other. em-
ployees and by making and submitting accusations against other em-
ployees to the Federal Bureau of Investigation, and denies that the
discharge was motivated by Walters' union activities. The respond-
ent further points to the fact that on January 10, 1944, the Union
advised that it had no members in the plant.
The Trial Examiner finds that Walters had called employee Os-
wald a "rat" and employee Schustler a "scab," and that he had re-
ported employee Cusenza to the Federal Bureau of Investigation fol-
lowing an argument related to the war. However, the Trial Ex-
aminer concludes that the discharge was, in fact, motivated by Wal-
ters' union activities, relying strongly on a finding that on January
3 or 4, 1944, Edens, owner of the plant, had made the following state-
ment to Walters after the latter had announced his union affiliation :
"My C. I. O. men won't be here three months. . . . I will get rid of
them," and another finding that the petition presented to Edens on
February 23, 1944, was submitted by Curtis and Riley, both active
protagonists of the Independent.
In view of the facts that (1) 'respondent had known of Walters'
union activities for about 14 months prior to his discharge;- (2) re-
spondent on January 10, 1944, had been notified by the Union that it
had no members among the respondent's employees; (3) the reasons
assigned by respondent for the discharge of Walters are supported by
facts found to be substantially true; and (4) the testimony of Wal-
ters with respect to his conversation with Edens leaves in doubt
whether the conversation occurred in January 1944, or in January
1943; 1 I do not perceive that the discharge of Walters is shown to
' Walters testified as follows
Q Now, Air Walters, (lid you ever inform Mr . Edens that you belonged to the
C I O
A The first week of January 1944-of 1943 when he signed the contract , I thought
I might just as well * * *
It would appear unreasonable to find that Walters believed it necessary in January 1944,
approximately 14 months after he had become active in the Union and after respondent
had become aware of his union activities , to advise Edens of his union affiliation. The
more reasonable interpretation of his testimony would be that the conversation with Edens
occurred in January 1943, about 2 months after he had become active in the Union and at
a time when there could have been some purpose to his announcement.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been a discriminatory act which discouraged membership in a
labor organization. I am of the opinion that the only reasonable
inference to be made on the facts as disclosed by the record is that
the discharge of Walters was motivated by respondent's desire to halt
a dissension in the plant caused by Walters' personal conduct in his
association with other employees.
INTERMEDIATE REPORT
Mr. Sylvester J. Pheney, for the Board.
Mr. Sparkmen D Foster, of Detroit, Mich., for the respondent.
Messrs. David E. Talhurst and John Stack , of Detroit , Mich ., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on March 17, 1944, by Region 1, Inter-
national Union, United Automobile, Aircraft & Agricultural Implement Workers
of America ( UAW-CIO ), herein called the Union , the National Labor Relations
Board, herein called the Board , by the Regional Director of the Seventh Region
(Detroit, Michigan ), issued its complaint dated June 1, 1944, against Falcon
Tool Company , herein called the respondent , alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8 ( 1) and ( 3) and Section 2 (6) and ( 7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint and notices of hearing thereon were duly served upon the re-
spondent and the Union. _
With respect to the unfair labor practices , the complaint alleged in substnce
that: ( 1) on or about December 21, 1942, the respondent discharged Albert
Schmierer and on February 29, 1944, discharged Max Walters and ,has since
refused to reinstate them "because of their membership in and activities on
behalf of the Union , and for the purpose of discouraging membership in and
activities on behalf of the Union "; and (2 ) by stated acts occurring between
the Spring of 1941 and the date of the complaint , the respondent has interfered
with, restrained and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
On June 13 , 1944, the respondent filed a request for a bill of particulars This
request was in substance granted on June 14, 1944, in an order issued by Trial
Examiner Horace A. Ruckel, who had been duly designated by the Chief Trial
Examiner . On June 17 the Regional Director for the Seventh Region issued
its Bill of Particulars , which was duly served on the Union and the respondent,
in accordance with the order of Trial Examiner Ruckel . On the first day of
the hearing , June 27, 1944 , the respondent filed an answer in which it admits
the allegations of the complaint as to its corporate organization and the nature
of its business . However, the respondent denies the commission of any unfair
labor practices and states affirmatively that Schmierer was laid off rather
than discharged and that the respondent has never engaged any one to replace
him.' As to.Walters, the answer admits that he was discharged on the-date
stated in the complaint "after the. receipt by it of a petition ' signed by the
majority of the employees on the shift on which the said Max Walters worked,
namely the day shift , requesting on behalf of the signers of the petition that
for the good of all concerned with the war effort that his services be dismissed
(sic) with." The respondent further denies that either Schmierer or Walters
has ever requested to be reinstated.
FALCON TOOL COMPANY 1271
Pursuant to notice a hearing was held in Detroit, Michigan, on June 27, 28
and 29, 1944, before Charles E. Persons as Trial Examiner, duly designated
by the Chief Trial Examiner, to serve in place and stead of Trial Examiner
Ruckel. The Board and the respondent were represented by counsel and the
Union by two of its officials. All parties participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to in-
troduce evidence was afforded all parties. At the conclusion of the hearing the
parties waived the privilege of engaging in oral argument before the under-
signed. They were duly advised that they had the privilege of presenting
briefs for the consideration of the Trial, Examiner. No briefs have been
received.,
Upon the entire record in the case and from his observation of the witnesses
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT I
The respondent is a corporation duly organized , on'November 30, 1941, under
the laws of the State of Michigan .' It has its principal office and place of
business in Detroit , Michigan , where it is engaged in the manufacture of high-
speed cutting tools and gauges. In its plant it employs about 70 production
workers. Ninety-nine percent of the raw materials used by the respondent are
purchased and shipped from points outside the State of Michigan. Of its
finished products 75 percent are shipped to points outside the State of Michigan.
The respondent admits that it is engaged in interstate commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
Region 1, International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America (UAW-CIO), is a labor organization, affiliated
with the Congress of Industrial Organizations, which admits to membership
employees of the respondent.
A. Background
The record reflects no union activity in respondent's plant before May of 1941.
About that time Schmierer and another employee contacted David E. Talhourst,'
president of Local 771 of the charging Union, and asked for assistance in organ-
izing the employees Talhurst gave them union application cards, and literature
for distribution. With John Stack, an International representative of the Union,
Talhurst passed out union leaflets before the respondent's plant on several occa-
sions. Talhurst and Stack also held a meeting attended by about 20 of the
employees On July 25, 1941, the Union petitioned the Board for Investigation
' These findings are based upon a stipulation of the parties incorporated in the record,
on allegations in the complaint admitted by the respondent in its answer, and on testimony
that is uncontroverted.
2 The complaint alleges, and the answer admits, that the respondent was a corporation
during the period which is material in these proceedings. At the hearing it developed that
the ownership of the plant prior to November,1941 was vested in a co-partnership. How-
ever, its owner and active manager has, at all times material herein, been Ralph A. Edens,
the nature of the industrial unit has not changed and it has been operated with substan-
tially the same management and the same employees The respondent raises no issue
based on this error in the complaint. The undersigned finds nothing in it affecting the
validity of the charges of unfair labor practices preferred by the Board.
3 This name is frequently recorded as Tolhurst in the transcript of testimony.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Certification of Representative. As a result, a Consent Election under the
supervision of the Board's Regional Office was held August 19, 1941, in which the
Union was defeated.
Thereafter Union efforts at organization practically ceased until the spring of
1942. Schmierer again took the lead in the Union's organizational campaign.
With employees Joseph Dumais and Edward Gerds he called upon Talhurst and
procured a new supply of Union application cards, buttons and literature. He
mailed the literature to employees, and solicited memberships, turning in signed
cards, secured by himself and by other volunteer organizers, to Talhurst.
Pursuant to a new petition filed by the Union on October 2, 1942, a second
Consent Election was held on October 27, 1942. The Union was successful by
a narrow majority and the Board's Regional Director issued his report on No-
vember 6, 1942, finding that the Union had been designated as the exclusive
bargaining agent of the employees in the agreed unit.'
Thereafter representatives of the Union and of the respondent conferred for
the purpose of collective bargaining. A tentative agreement was reached, signed
by the respondent on March 2, 1943. However, misunderstanding developed over
the application of the retroactive wage clauses This agreement was rejected
by the employees when submitted for their approval A new agreement was
negotiated, with the assistance of officials from the War Labor Board It was
signed in December 1943 This contract provided for maintenance of union
membership and required the Union officials to submit a list of their members
within 15 days of the contract's execution. Talhurst, however, reported under
date of January 10, 1944, that the Union had no members in good standing in the
plant. At the hearing he testified that the Union did have members in respond-
ent's plant but explained : "I would not divulge the names of those members to
the Company because it had been my past experience that so many people have
been flied out of there because of Union activity that I felt the only way to
protect those people was by withholding their names " On receipt of this letter
the respondent posted it on the plant bulletin board and withdrew its request to
the War Labor Board that the contract with the Union be approved by that body.
The respondent took the position that-no Union existed in the plant and there-
after refused to discuss grievances presented by union officials.
B. Acts of intee f erence, restraint, and coot cion s
About 3 or 4 months before the first Consent Election, during a noon hour,
Ralph A. Edens,' owner of the plant and its manager during the copartnership,
called a representative of the Society of Tool and Die Craftsmen, named Griffen,
into the plant. He was introduced to the employees by Edens, Factory Manager
Pouclier and Superintendent. Richard Behrens and made a speech lasting 35
4 During the periods of the Union's organizational campaigns a rival labor organization,
known as the Independent, was at times active in the plant
5 The respondent called but three witnesses Manager LeRoy W Millen. Behrens and
Edens Direct examination of Behrens and Edens was confingd to the briefest state-
ment of the, facts as to the discharges Direct examination of Millen covered in addition
some matters relative to the respondent's dealing with the Union and its denial of a
request for recognition presented by the Independent after the second Board election and
the certification of the Union by the Regional Director Practically all of the statements
and incidents set forth in this section are entirely uncontroverted The testimony of the
Board's witnesses was not shaken on material matters in cross examination It is
mutmilly corroborative and is accordingly, credited by the undersigned
'Edens was familiarly referred to as "Rudy". He is frequently recorded in the tran-
script of testimony by that name
FALCON TOOL COMPANY 1273
minutes. The employees cast ballots on the question of accepting the Society as
their representative and rejected the proposition.'
Some time before the first Board election Edens discharged an employee Earl
"Gords" saying within the hearing of Schmierer : "You fired. You all through.
I don't want that stuff around here. I know how to run my own shop. I don't
want no racketeers in the place." Later Edens said to Schmierer with reference
to this discharge : "You know anybody else that is Union men around here? I fire
them all."'
Just before the first election was held, an unaffiliated union arose, whose
organization and purposes were ill defined in the record. It was referred to
as the Independent. The clearest account of the initial organization of the
Independent is that given in his testimony by employee Edward Gerds. His
testimony,' credited by the undersigned, was that the Independent organization
was started by an employee in the shipping room who chose a committee of six
"when the rumour came around" that a Union was being formed. This com-
mittee went to Edens and Poucher and secured concessions which were stated in a
letter distributed in the plant to all employees, shortly after July 26, 1941. This let-
ter promised that a minimum rate of 60 cents an hour would be established for
learners starting August f5, 1941; that a general raise of 10 cents an hour for
all employees would be made, effective September 15, 1941; and that thereafter
a system of automatic raises of 5 cents an hour given at 2 months intervals
would apply to all employees "until their rate of pay equals the union quoted
occupations list of pay for the operation being performed." Further clauses
established over-time pay at the rate of time and a half for hours over 40 in each
calendar week and at the rate of double time for Sundays and holidays ;'promised
seniority rights according to the "pay roll record of employment" ; and granted
a week's vacation with pay to employees having one year's service and two weeks
with pay to those with over 5 years' service. The Board's witnesses stated with-
out contradiction, and their testimony is credited by the undersigned, that these
concessions substantially paralleled a list of demands drawn up at a union meet-
ing held just preceding July 26.
The employees were not left in doubt as to the significance of this action-of the
copartnership. Poucher personally delivered a copy of the letter to Dumais
at his machine in work time. Under questioning Dumais, who was handicapped
in expressing himself clearly, due to language difficulties, quoted Poucher as
These findings are based on uncontradicted testimony by Walters which is credited
by the undersigned
8 Schmierer so testified and his uncontroverted statement is credited by the undersigned.
Gerd's testimony, in point here, reads,
I was asked by thiA one m,in named Jimmy ; when the rumor came around that we
were to have-were trying to get a Union. and an election coming on, it was this one
man, Jimmy, that came out and was talking against it, sa3 ing that we don't want the
CIO, let's get a committee up, that Mr Edens said that he will bargain with us, and we
will get more out of Mr Edens that way. This Jimmy woiked in the shipping room
During his working hours lie was doing things that nor one would stop him, and he could
go out and pick his committee, and when they picked this committee they went in there
and met with Mr Edens, I believe it was, and Mr. Poacher, and that was the result.
They came out with this paper you have in your hand.
Walters gave a similar account :
The first attempt was made about the time of the first election I know they picked
certain men off the cutter grinders and off the surface grinders, I don't know just who
they were, but they were men that were working all around me at the time, and some-
how or other they didn 't pick me . All at once they all start walking toward the office.
. . . After they came out they told us, "Well , we formed an Independent shop union here,
and you are going to get better things than you will with the C I. O."
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having said: "You read -that. You -get raise, vacation with pay. You know,
you don't need no union no more. We going to take care of you."
Walters testified, and the undersigned finds, that the letter was distributed in
the grinding room by Poucher and Edens. He also stated that about the time
of the second Board election, Behrens "came and encouraged [him] to"join
[the Independent]."
About the time of the second Board election those promoting the Independent
passed a paper from hand to hand in the plant (luring work time soliciting signa-
tures of adherents. Gerds, chief steward of the Union; observed this action and
reported the matter to Superintendent Behrens. Gerds' testimony was not con-
troverted and is credited by the undersigned. Excerpts from it read as follows:
At the time they were passing it around, I approached Mr. Behrens and asked
him if he was aware of it. And lie says no, and he asked me who had the
petition. Well, I couldn't tell him who had it, but I knew who did have it,
so I told him, and he went to two of the men and they denied having it.
And when he came back to me, he says that, "They deny it." Well, then,
I asked him if he approved of it, of the petition going around, and he says,
no, he and the Company didn't. I asked him for the good of all the men in
the shop if he wouldn't put a notice on the bulletin board stating that, that
the Company did not approve it, and had nothing to do with it, and he refused
to do it, and he got mad. He really got so mad he started, mumbling and
he went in the office, and I didn't see him for hours.
Various Board .witnesses testified, and the undersigned finds that their uncontra-
dicted testimony is true, that the respondent's supervisors discriminatorily treated
the advocates of the Union and of the Independent, giving the Independent organ-
izers large freedom to promote their organization during work time but promptly
reprimanding any known Union adherent if observed absent from his post.
Several Board witnesses gave circumstantial evidence of such discriminatory
treatment. Thus, employee Wilber Richert testified that Independent members
talked from 15 to 45 minutes during work time without incurring reprimands
whereas he, a Union member, was told by Behrens that he was spending too much
time away from his machine. Richert retorted that "as soon as the Inde-
pendent union men would cut it- out, our men would cut it out, too " Behrens
thereupon walked away. R.chert further testified that on one occasion he had
timed two employees,10 fully and repeatedly identified in the record as active
protagonists of the Independent, talking, in work time, for 33 minutes. During
this period Behrens, at intervals, "would be joining with them" These incidents
occurred "before the second election."
Gerds gave unassailed and credited testimony, as follows!
At different times there I would be approached by a Union man or by Mr.
Behrens about [a] certain Union man being away from his machine, and
at different tines I pointed out to Mr. Behrens where there would be two
or three of these Independent members talking and maybe they'd be there
for a half hour previous to that, and when I would bring that up, he couldn't
see it that way. He would walk away and never go over and tell them. If
a,CIO man stopped to talk to anyone for one or two minutes, he was right there
to make something of it.
Walters testified, and the undersigned finds, that after the second election
he had been reprimanded "for stopping to speak to one man two words on a
Monday morning after a Union meeting." He, thereupon timed an Independent
10 Rudy Herman and Carl Koch.
FALCON TOOL COMPANY 1275
adherent who spent 4 hours and 35 minutes out of an 11 hour day "hobnobbing
with -the boys in our department where he didn't belong." Walters at the time
pointed this employee out to Behrens whose only comment was : "What can I
do about it?"
Before the first Board election officials of the respondent interfered openly with
the employees' freedom in choosing representatives. Thus Behrens, "about one
month or a couple of weeks" before the election said to Dumais :
What do you think about that? The men no say nothing to Mr. Edens. If
the men want him to raise them, they ask him for a raise and they got the
raise and they don't need the Union. Mr. Edens hate the Union and we
don't need the union in the shop.
At the time Dumais had not joined the Union. He was uncertain what to
answer and, as he testified, said nothing "to save my job."
Edens told Schmierer at the time notices were posted for the first election :
Them guys are just out for your dollar, it is nothing but a bunch of racketeers.
I know how to run my business. I need no outsider.
Poucher made a similar statement to Schmierer, about the same time. Poucher
further advised Schmierer how to vote saying. "Be sure to vote against the
Union, because you know what Rudy [Edens] did for you " Somewhat later
Edens said to Schmierer with reference to the result in case the Union won the
election : "You won't have the convenience any more as you got now in the shop,
we won't have no more overtime. If the Union comes in, I am going to sell
the place."
Walters gave testimony, credited by the undersigned, that Edens advised him
as follows :
Well, prior to the first election, in fact, all the time he used to come to me
and preach to me we shouldn't have a CIO in the shop, you will do better with-
out having a CIO, and he will go further than the CIO will by giving a higher
rate of pay and more privileges, and we have already had some privileges
there which the CIO wouldn't stand for, * * * and the best thing to do
was to stay away from the CIO, which, of course, I didn't belong, anyway.
Employee John Horvath had been acquainted with Behrens for 5 or 6 years.
Behrens frequently spoke to Horvath concerning the Union. Excerpts from
Horvath's testimony, which are accepted as true by the undersigned, lead as
follows :
Q Now, did you every have a conversation with Mr. Behrens regarding
belonging to the Union?
A. Well, several times he came to me and said, "You better stay away
from it."
Q. Was that before or after the first election?
A. Before the first election and before the second election.
Q. What did he say to you?
A. He said, I'm going to get into trouble because Edens doesn't like it.
,He said he [Behrens] got me this job and I shouldn't go and vote for the
union He resented it very much.
After the Union was defeated in the first election, Edens came to Horvath in
the shop and said : "Are you satisfied, you guys, now, you damn fools. The
Union isn't going to get you no place. I'm going to run this shop.""
These quotations are from Horvath's uncontradicted and credited testimony.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After Schmierer's discharge on December 21, 1942, Behrens discussed the
matter with Horvath, as set forth below. When Horvath stated his conviction
that "anyone has the right to belong to a lawful organization or union," Behrens -
said, "Don't talk like that. You get in trouble, too."
On or about July 28, 1941, both Behrens and Edens questioned Schmierer
about his attendance at a union meeting on the preceding day, Sunday. Edens,
speaking in German, called Schmierer "a dirty name." Schmierer denied attend-
ing the meeting and refused to give any information about the Union.12
Shortly after the second election Behrens came to Gerds, who had recently been
elected chief steward of the Union, and asked what good he "thought that a CIO
was going to do the men in the factory." Gerds stated his beliefs, whereupon
Behrens declared that "he thought it was all wrong, that the men in that shop
shouldn't have no union, and that they didn't need a union. He thought it best
they didn't have one." In later conversations with Gerds, Behrens insisted that
the employees "were doing wrong by having a union in the shop."
Shortly before Christmas 1943, Gerds had a discussion with Edens relative to
working Sunday to make up the time lost due to the Christmas holiday. Edens
resented Union interference in this matter and stated to Gerds that "he didn't
believe in the CIO, that they were a bunch of * * * Jews and chiselers,
that if the men in the factory really wanted a Union, * * * it would be
better to have an Independent Union and not the C. I O
After the certification of the Union as a result of the second election and while
negotiations were in progress between the Union and the respondent, Edens carne
to Gerds asking what it was the men really wanted. Gerds spoke for himself
and,said his main grievance arose from the fact that he was "underpaid accord-
ing to other shops." Edens agreed that this was true and proposed to bring the
pay of the five milling machine operators in Gerds' occupational group up to
$1.25 an hour. When Edens further suggested that Gerds state this proposition
to these men and get their reaction, Gerds protested that such action on his part
would mean that he was "to go out and try and talk the boys into sort of forgetting
the Union." Tole therefore refused to take the proposed action.-
In September 1943, a union meeting was held in a disused service station.
This building had large windows and the meeting was on the ground floor.
Gerds testified, and the undersigned credits his testimony, that Foreman Ralph
Riley driving by in his car spent "a good minute or two" looking into-the Union
meeting.
In the week preceding Walters' discharge members of the Union learned that
Riley was soliciting signatures to a petition concerning Walters. A special
Union meeting was accordingly called for Saturday night, February 26, 1944.
That evening Walters was delayed for 25 minutes by car trouble. When he left
the plant he observed Riley's automobile following him. Walters thereupon took
a roundabout course and delayed a short time at home in, an effort "to throw
him [Riley] off the trail." Nevertheless on entering the meeting, held in the
disused service station, Walters saw Riley held up for 2 minutes by a red light
immediately in front of the union meeting. Riley looked into the meeting dur-
ing this time and the members present "were all looking at him." 13
LeRoy W. Millen became factory manager for the respondent in the late fall
of 1942. About February 1, 1944, he had a conversation with employee Henry
'2 Findings in this paragraph are based on Schmierer 's testimony . He was , corroborated
by Horvath , who understands German, and overheard this conversation with Edens.
13 These findings are based on testimony of Walters which was unassailed and which is
credited by the undersigned . Riley, though present in the plant , was not called as a
witness.
FALCON TOOL COMPANY 1277,
Leesburg in which Milieu said: "I can't see where the Union is going to get
you anywhere . . I never joined the Union and I have always gotten along all
right." Later in the same month Millen told Leesburg that "he couldn't see
why [Leesburg] turned against Edens in joining the Union." "
The copartnership has interfem ed with, restrained and-coerced its employees by
such of the acts and utterances of Edens, Poacher and Behrens, set forth above,
as occurred prior to November 30, 1941; by interfering with and endeavoring
to influence the result-in the first Board election; by allowing great freedom
to the union activities of adherents of the Independent while stringently limit-
ing similar actions on the part of protagonists of the Union; and by disparag-
ing the Union and its leaders. Since the copartnership was not named in the
complaint no findings are made against it by the undersigned.
The respondent has interfered with, restrained and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act; by such of
the acts and utterances of Edens, Poucher, Behrens, Riley and Millen detailed
above as occurred after November 30, 1941; by its interference with the em-
ployees' freedom of choice in the second Board election ; by discriminatorily
treating the adherents of the Independent and the Union in their union activities
in the plant; by knowingly permitting the solicitation of Independent member-
ship during work time and failing, on the Union's timely protest, to disavow
approval of the Independent's action; by disparging the Union and its leaders;
by spying on Union meetings; by discharging and refusing to reinstate Albert
Schmierer and Max Walters and by various acts and utterances in connection
therewith, as described in detail in the following section of this Intermediate
Report.
C The disciintinatory discharges
Albert Schmierer was hired by the respondent on January 14, 1941. He had
learned his trade as a tool and die maker in his native country, Germany. After
coming to the United States in 1925, Schmierer worked for a time as a tool and
die maker at Ford Motor Company and at Hudson Motor Company. During the
8 years immediately preceding his hiring by the respondent, he had opeiated a
gas station. He applied to Edens, who had been one of his gas station customers,
and was engaged as a handy man on bench work His initial wage was GO cents
an hour. Schmierer explained his acceptance of this low pay by saying that he
was "kind of pressed" financially at the time. When discharged on December
21, 1942, he was receiving $1.10 an hour. This increase was largely due to the
respondent's system, effective September 1, 1941, of granting automatic raises
of 5 cents an hour at intervals of 2 months. However, Schmierer received two
merit raises. The second was granted by his supervisor, Superintendent Behrens,
about three months before his discharge Schmierer testified, and the under-
signed credits his statement, that Behrens at the time patted him on the back and
said: "You have done a wonderful job. Your wages are going to be ten cents
increase in your next pay."
Schmierer initiated the movement to organize the respondent's plant. Accom-
panied by another employee he visited Union headquarters in May or June 1941
and received from Talhurst a supply of application cards, union buttons and
literature. Talhurst gave Schmierer instructions on methods to be used by him
as a union organizer. Schmierer was the first employee to join the Union. He
canvassed the production workers, secured signatures to Union application cards,
collected dues and turned the cards and money over to Talhurst. He regularly
14 These quotations are from Leesburg ' s credited testimony.
127$ DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attended Union meetings. Although Schmierer made efforts to remain in the
background and to conceal his union activities, the record shows that he was not
entirely successful.
After the first Board election and the Union's defeat Schmierer understood that
a new election would not be held by the Board until a year had elapsed Accord-
ingly, with the approval of Talhurst, he ceased his organizational efforts for a
time. In the spring of 1942 he again visited Talhurst, accompanied by employees,
Joseph Dumais and Edward Gerds. They suggested that the Union campaign
be resumed. Talhurst agreed and supplied Schmierer with cards and union
literature. Dumais acted as organizer on the night shift, reporting to Schmierer
at his home. Schmierer mailed to the employees a letter furnished by the Union,
secured signatures to application cards and turned these, together with those
secured by his assistants, over to Talhurst. After the success of the Union in
the second Board election, Schmierer wore his Union button openly in the plant.
On the day of his discharge, Schmierer in conversation with a machine operator,
Jack Heeney, stated that another employee, Paul Hamerski, who had less seniority
than Heeney, was receiving $2 00 an hour. Heeney inquired of Superintendent
Behrens as to the truth of Schmierer's statement saying: "If it is [true] and
if I find out, * * * that is the end of me working here. If that man is worth
that much money, I am too " 15 Behrens assured Heeney that Schmierer's state-
ment was untrue and, as Behrens testified, was moved by the incident and the
fact that work in process was not over plentiful, to propose to Edens that
Schmierer be discharged, Edens agreed and Behrens immediately paid Schmierer
in full and "let him go." Although Behrens testified that Schmierer was "laid
-off" he conceded that the lay off was permanent, that Schmierer had no right to
reemployment and that the "lay off" was in fact a final discharge
Schmierer testified, and the undersigned credits his uncontradicted testimony,
that after hearing Heeney's complaint Behrens came to Schmierer and said :
"Wait until Rudy [Edens] hears that You know how, the boys in the Union
are, to Rudy : the guy that started all this around here, we find it all out."
Elsewhere Schmierer testified that in explanation of his discharge Behrens had
said to him : "You know how poison the Union is to Rudy [Edens] and you were
the guy that started all this." Schmierer further testified as to statements made
by Behrens, when inspecting the contents of Schmierer's tool box as he checked
out. This testimony was not specifically denied by Behrens and is credited by
the undersigned It reads as follows :
Well, he [Behrens] say, "I know what is going to happen. I got your checks
here already. You brought it all on yourself You are fired " * * * I
had to open my box-when you check out you take the tools out, what be-
longs to the Company you take out and the rest is yours, that stays in
there So when we opened the first drawer I had the Union literature and
the Union buttons in there and he [Behrens] said, "Oh, that is where you
are hiding it." I said, "It always was in there. I always got literature
and stuff here."
The undersigned finds confirmation of Schmierer's account in uncontradicted
and credited testimony by Horvath who had a conversation with Behrens the
day after Schmierer's discharge Behrens asked Horvath "what the boys felt
about Schmierer's discharge." Horvath told Behrens that "it isn't fair to dis-
charge anybody with such a reason," and that "he had no reason to discharge
16 These findings are from Behrens' credited testimony . Schmierer 's testimony, while
somewhat difficult to construe due to his language handicap , in effect , corroborates Behrens.
FALCON TOOL COMPANY 1279
him, for what Schmierer did." Behrens then said, "Schmierer was a trouble
maker and * * * was the one that started the whole union business."
Walters made a similar inquiry of Behrens with a like result. Walter's tes-
timony, which is credited by the undersigned, reads as follows:
I turned around one morning and I says, "Mr Behrens", I say, "What was
the idea of letting Schmierer go " "Well, he wasn't doing so good anyway.
He wasn't doing much work." I said, "Now you know that isn't so." "I
have ability enough to see w hat is going on." "You know that isn't so.
Why blame the man for that." He says, "Well, you know how it is with
that Union stuff."
Walters further testified that after Schmierer's discharge he had had a con-
versation with Head Inspector Robert Ross. Walters' testimony at this point
reads as follows :
I says, "Bob, to your estimation-I had heard rumors that Schmierer's work
was no good, that is the reason they fired him; what do you say to that :"
He said, "That plan did better work than anyone ever did, they won't get
another man to match him The reason they let him go is because he stuck
his neck out with the Union " That is the very words he said to me.
The respondent did not assail this testimony. Ross was still employed in the
plant and available as a witness, as clearly appears in the record. Under these
circumstances the undersigned credits Walters' testimony.
When discharged Schmierer had just begun an assignment which would have
required' "a few hours " The respondent contends that the tapping work
Schmierer was doing on a special order had been cut off at the time of his
discharge and that no one was hired to replace him. Various employees 18 testi-
fied, as Board witnesses, that the order in question was not withdrawn until sev-
eral months after Schmierer was discharged. The record shows that employee
Frank Schustler took over this work. The respondent produced no evidence to
support its contention and did not specifically refute the testimony advanced
by the Board. Under these circumstances the undersigned credits the Board's
witnesses and -finds no merit in this contention of the respondent.
The Union made complaint to the respondent regarding Schmierer's discharge.
Talhurst and Chief Steward Gerds conferred with respondent's counsel Foster
and Factory Manager Millen. The Union's protest was referred to Edens.
Later Millen reported to the Union that "under no consideration would they ever
take [Schmierer] back." 17
Schmierer was the employee most active in the Union's organizational effort.
He was the first employee to join the Union and was the recognized leader in
both the first and second period of union activity. The record makes clear that
his position in the Union was known to the respondent's officials and super-
visors Both Behrens and Edens, who shared responsibility for the decision
11 Gerds and Walters.
17 This quotation is from the Credited testimony of Gerds. Talhurst 's testimony corrob-
orates Gerds'. It reads :
A The reason they gave inc that there wasn ' t that type of work available any more,
even in view of the fact that that is the only type of work he ( Schmierer) had ever done
there ever since he had been hired.
Q Any other reason given?
A Yes, they felt for the good of the Company it would be best if he wasn't on the pay
roll
Q was he termed a trouble maker?
A Definitely
1280, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to discharge Schmierer,18 are shown by the record to have been guilty of delib-
erate and continued anti-union sentiment and activity. After consideration, of
the record and the demeanor of the witnesses, the undersigned is convinced and
finds that Edens and Behrens seized upon the pretext afforded by Schmierer's i11-
advised act in giving currency to a false statement regarding Hamerski's wage
rate to rid the plant of the Union's most energetic member and leader. This
conclusion is confirmed on consideration of Behrens' statements to Schmierer at
the time and to Horvath and Walters later. On no other hypothesis can the
respondent's answer to the Union's efforts to secure Schmierer's reinstatement
be explained. The undersigned finds that the discharge of Albert Schmierer on
December 21, 1942 and the subsequent refusal to rehire bull, were discrimina-
tory acts, motivated by his union membership and activity.
Maw Walters first worked for Edens for 2 or 3 months in 1935 when the plant
was first opened. After a period in other employment lie returned to the plant
in February 1939. At that time the plant employed but 8 or 9 workers Walters
worked on various operations and during the first year and a half instructed
newly hired employees. When first hired he was paid a relatively low wage,
90 cents an hour. Walters testified that he was a "very close friend" of Edens
and that he accepted this wage, because he "was in sympathy with Mr. Edens
at the time he first started his business." During the five year period of his
employment by the respondent lie worked directly under Edens' supervision His
chief work was as external grinder on precision jobs. When discharged on
February 29, 1944, Walters was being paid $165 an hour, the highest rate
allowed for his job classification, under the War Labor, Board's.regulations. No
criticism was voiced at the healing of Walters' capacity and performance as
a workman. Edens assumed full responsibility for the decision to discharge him.
When asked with reference to Walters' top salary rating: "He was a good work-
man and he was worth that much?" Edens replied, "Yes, on and cff he produced
for what he got paid for."
Walters took no part in the Union organizational campaign which preceded
the first Board election. He joined the Union shortly after the second campaign
started and thereafter was prominent,in the Union's activities He conferred
with employees who came to him in the shop seeking advice, attended all union
meetings held, with a single exception, and always participated in the discussions
held. He estimated that he had secured "about seven" members through his
personal efforts On January 3 or 4, 1944, after the Union had won the second
election Walters went to Edens and told him of his Union membership Walters
also said according to his unassailed and credited testimony, "Now I am a
member and I am going to see that it is my Union and it is going to work for me.
If you will play ball you will make money, and we will make money " Edens,
in reply, said: "Now, listen, I am going to tell you something I will make a
prediction that in five years there won't be no CIO The manufacturer is going
to have them wiped off the map." Edens said further: "My CIO men won't be
here three months, * * * I will get rid of them."
Additional evidence in the record shows that the respondent had knowledge
of Walters' Union activities at an even earlier date Uncontradicted testimony
by Horvath, credited by the undersigned, shows that Behrens came to Horvath
in December 1943 and told him of Walters' Union membership. Further that
in conversation with Horvath before and after the second Board election Behrens
had said with reference to Walters' Union activities. "I hope you don't elect
"When asked, who reached the decision to discharge Mr Schmierer, Edens replied,
"Fifty-fifty between Mr Behrens and myself."
FALCON TOOL COMPANY 1281
him to anything " Respondent ' s factory manager , Millen , testifying as a wit-
ness, fgr the respondent , admitted knowledge of Walters ' prominence in Union
activity Millen 's credited testimony states that either in January or February lie
had warned Henry Leesburg , who had succeeded Gerds as Chief Steward, against
being led by Walters in his -union business and "being made a sucker out of."
The immediate occasion of Walters ' discharge was a petition circulated by the
Independent union . This organization was revived at the time the Union re-
newed its activities in the spring of 1942 Its adherents made persistent efforts
to secure the membership of Walters About a week before Walters' discharge,
Ralph Riley , foreman in the grinding room ,' 9 secured signatures in the shop to a
petition in the following form :
We, the undersigned , employees of the Falcon Tool Company, think it wou'd
be to the best of all concerned that Max Walters be told to find employment
elsewhere.
We feel that lie has been responsible for much of the dissension that has
been in evidence in the Falcon Tool Company in the past months.
We feel that the morale of the employees will be better and we can con-
tribute more to the war effort if this cause of dissension is removed So, we
petition the management of the Falcon Tool Company to take whatever steps
are necessary to see that this is done.
This document was signed by 24 employees out of the clay shift of 45 to 48
workers. It was presented to Edens on February 23, 1944 by Foreman Riley and
employee Charles Curtis Edens checked "about half a dozen " of the sig _iatuws
and found them authentic He was acquainted with the signatures of his em-
ployees on documents in the office . Later some 8 or 10 of the employees who
signed the petition were summoned to the respondent 's office and questioned as to
their reasons fdr signing the petition by respondent ' s Counsel Foster in the
presence of Edens and Millen. Signed statements were taken from those inter-
viewed Afterwards - Foster recommended to Edens that Walters be discharged
Under this advice of counsel Edens discharged Walters next morning
The respondent did riot present the original petition and the names of the
signers were not disclosed The men presenting the petition to the m:uiagenient,
Curtis and Riley , are inferred by the undersigned to be signers of the petition.
They were, identified by several Board witnesses 20 as active protagonists for the
Independent The respondent d'd not produce the statements taken by Foster
from the signers of the petition Millen named three of there , one of whom
Rudy Herman , had demanded of Millen and Edens that they deal with the In-
dependent Herman was also identified by Board witnesses as an fictive pro-
tagonist for that orgamzation Under these circunistanc _ s since the petition
was presented to the respondent by two active advocates of the Independent, one
of whom was a foreman ; since signatures were secured in work time and since the
respondent presented neither a list of signers nor the statements taken from
those interviewed by its counsel, the undersigned infers and finds that the peti-
tion was essentially an Independent Union document in origin, circulation and
purposes Moreover , he finds that the respondent through the active participation
of Foreman Riley and through circulation of the document in the plant during
working hours , shared responsibility for the petition with the Independent
Edens testified , and the undersigned finds, that Walters refused to come to the
office on the evening of February 29, 1944 when so notified by Factory Manager
10 Riley's status as a foreman was not denied by the respondent Numerous Board wit-
nesses identified him as a foreman
20 Schmierer , Richert , Horvath , Gerds, and Walters
628563-45-vol 6O 82
1282 , DECISIQNS OF NATIONAL LABOR RELATIONS BOARD
Millen. Edens thereupon went to Walters' bench and said , as recorded in his
credited testimony , "for the betterment of the Falcon Tool and for the war
effort, and that the majority of the boys sign a petition that they don't want to
have him work with them any more, * * * he was all through." 21
Walters said nothing at the time. A day or two later he came back to the
plant and asked Edens to tell him why he had been discharged . Edens testified
that he replied : "Max, I told you what it was, what it was all about " Walters
testified that he asked Edens , "Why don't you tell me why you fired me, you
don't want me any more ? I thought you were running the shop. Now you turn
around and say it is for the betterment of the boys . * * * Give me an
ansvver. Tell me yes or no, is it the Union or what is it?" And that Edens
replied in a low voice, "What do you think I am, a damned fool?" Aftei con-
sidering the record, the demeanor of the witnesses and the failure of the respond-
ent to produce all the evidence available to it, the undersigned credits the version
of this interview given by Walters.
The undersigned finds little in the record to justify either the criticism of
Wafers voiced in the petition or his discharge because of unsupported allegations
therein Walters was obviously an individual of positive beliefs not given
to polite or diplomatic behavior . There is nothing to suggest that his charac-
teristics had changed during his five years ' employment with the respondent.
He had been involved in a controversy with Joe Cusenza 22 over matters connected
with the war in Italy ' Walters testified that Cusenza insulted him "very highly
in a very unpatriotic way" and threatened "to slit [his] back." After unavailing
cc plaint to Behrens , Walters reported Cusenza to the Federal Bureau of In-
vestigation It is evident from the record that exaggerated reports were cir-
culated in the plant as to the extent of Walters' report to this agency After
consideration of the record the undersigned finds in the incident no justification
for Walters ' summary discharge . It is clear that Cusenza , who was not disci-
plined , was fully as much at fault as Walters
Walters also admitted that Edens reprimanded him early in January 1944.
Walters' uncontradicted testimony as to this conversation with Edens is credited
by the undersigned and reads as follows :
A. Well, lie said, "Now , listen"-it was early in the morning, ' about 7: 30,
I believe. He come to me and said, "Listen ," he says , "do you know some-
thing? I am running this shop, no CIO , or you or anyone else • I am still
the boss here and my orders go, and I don't want you or anybody else to call
another man a scab ." I said, "Who done that e" He says, "You did "_ I
says, "Who told you that?" He says "Well , Frank Schustler over there tells
me you called him a scab" I said , "I didn't call him a scab", but I said,
"Now I say he is a scab and a rat, because what I told him is just this :"
I said, "You took away Schmierer 's job, you took away everybody 's job and
is for the Union , and now you are pushing Leesberg off the truck driving
job." I didn't know at the time he didn't even want it. But , I said, "You
are doing all this work against the CIO. Do you know what the men will
21 Millen was present at the time of the discharge. He testified that Edens told Walters;
"that here was his check and release and he said he had received a petition from the men
in the shop and through this petition it was decided Max Walters was a detriment to the
goad of the Company and also to the good of the war effort and thereby he was cancelled-
he was fired
Walters' testimony was in substantial agreement It reads : "For the betterment of the
boi s that is here , and for the war effort and the management , you are fired. You ale
through I don't want you any more."
21 This name is also recorded as Kuzeuza in the transcript of testimony.
FALCON TOOL COMPANY 12&3':
think of you before long? They will string you on a tree . They will make
a scab out of you." But I didn't mean to call him a scab at all. When he
told Rudy Edens that I called him a scab, I told Edens , Yes, I did call him
a scab and I will call him worse than that. _
Walters further admitted that he had called employee Oswald a rat. Walters
was provoked to use this expression by Oswald's temporizing for nine weeks on
the matter of joining the Union and-by-suspicions that Oswald was conveying to
Edens information about the Union acquired from Walters.
The undersigned does not excuse the use of these opprobrious terms by Wal-
ters However, such phrases are current in the course of union controversies.
There is nothing in the record to connect these incidents directly to Walters' dis-
charge nor does the respondent specifically make such a contention. Its de-
cision to discharge him was made immediately after interviewing 8 to 10 signers
of the petition, without giving Walters any opportunity to reply to their state-
ments. He was not informed as to the specific charges made against him nor
were the statements of those interviewed produced at the hearing It is a fair
inference, made by the undersigned, that the contents of the statements would
not furnish justification for Walters' summary discharge
After considering the record, the demeanor of the witnesses and the circum-
s!ances under which the petition originated, was circulated and presented to the
respondent, the undersigned is convinced and finds that Walters summary dis-
charge, after 5 years of acceptable service, was motivated, in substantial part,
by his membership and activities in behalf of the Union. He therefore finds
that both the discharge and the failure to rehire Walters, were discriminatory
acts which discouraged membership in a labor organization."
By the discharge of Albert Schmierer and of Max Walters and its subsequent
refusal to rehire them, the respondent has discriminated in regard to their hire
and tenure of employment and discouraged membership in a labor organization.
By these acts, and by its anti-union expressions in connection therewith, the
respondent has interfered with, restrained and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COiliiiERCE
It is found that the activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent described in Sec-
tion 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 bur-
dening and obstructing commerce and the free flow of commerce.
21 Under closely analogous circumstances the Board has recently said :
The Trial Examiner also found, and we agree , that the discharges of Spurlock and Mc-
Elhaney were made with knowledge on the part of the respondent that the respondent's
packers who requested the discharges weie anti- union in sentiment , and with the further
knowledge that such packers' grievances against Spurlock and â1cElhaney and their refusal
to work with Spurlock and McElhaney were based, in substantial part, upon the two em-
ployees' unwelcome persistence in union activity and solicitation We find that the respond-
ent, by these circumstances , placed itself in the position of ratifying , and thus participating
in, the packers ' anti -union sentiments and conduct , thereby discouraging membership in a
labor organization in violation of Section 8 (3) of the Act.
The Board said further that the "contention of the respondent * * * that the dis-
charges were based upon a fear that if it did not discharge Spurlock and McElhaney it
would lose other employees, provides no justification for violating the Act."
See Matter of Edinburg Citrus Association and Local 35, Texas Fruit and Vegetable
Workers Union UCAPAWA-C70, 57 N. L. R B . 1145, August 8, 1944, and cases therein
cited.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. The remedy
Having found that the respondent has engaged in certain unfair labor prac-
tic-s, 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 acts of interference, restraint, and coercion
were committed prior to November 30, 1941. There was no change of policy
when the respondent corporation took over the plant. Rather the record shows
affirmatively that the respondent corporation continued and intensified these
unfair labor practices. The corporation operated under the same name as the
co-partnership The plant was taken over and operations continued without
interruption, under the same management as had conducted the co-partnership
and with the same personnel. There was no change in the employer-employee
relationship Under these circumstances, the undersigned finds that the re-
spondent corporation must be held responsible for the unfair labor practices
of the predecessor copartnership. Effectuation of the policies of the Act requires
that 'the Board's remedial order shall-apply to all acts of interference, restraint
and coercion of which respondent's present officials and supervisors are guilty
whether such acts were committed before or after the date of respondent's in-
eo,poiation. The undersigned will so recommend.`
It has been found that the respondent discharged Albert Schmierer and Max
Walters for the reason that they engaged in concerted activities and joined
and assisted a labor organization for the purposes of collective bargaining
and other mutual aid and protection It will be recommended that the re-
spondent offer Schmierer and Walters immediate and full' reinstatement to their
former or substantially equivalent positions without prejudice to their seniority
or other rights and privileges they may have. It will be further recommended
that the respondent make Schmierer and Walters whole for any loss of pay they
may have suffered by reason of their discriminatory discharges by payment
to them of a sump of money equal to the amount they normally would have
earned as wages from the dates of their respective discharges to the date of
the respondent's offer of reinstatement, less their net earnings 25 during said
period.
2 See N L R B v Adel Clay Products Company, 134 F (2d) 342 , at 346 (C C A 8).
The Court said :
It is the employing industry that is sought to be regulated and brought within the cor-
rective and remedial provisions of the Act in the interest of industrial peace The term
"co-partners" inav not then he regarded as more than a term of desciiption of as denoting
a legal entity which alone is subject to the command of the order . It needs no demon-
stration that the strife which is sought to be averted is no less an object of legislative
solicitude when contract , death or operation of law bring about change of ownership in
the employing agency Moreover , a cease and desist order is of the nature of an injunction,
and its affirmative provisions analogous to those of one that is mandatory
We need go no further than to say that the partnership , having taken over the plant,
the business and the assets of the corporation, with the same management and the same
employees , and having failed to show any change of policy relative to labor relations had
taken place , is not entitled , as a matter of law, to be relieved from the remedial measures
which the Board deemed necessary,to remove the effects of the unfair labor practices found
to exist and to prevent a recurrence
25 By net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an- employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union , Local 2590 , 8 N L R B 440. Monies
received for work performed upon Federal , State , county, municipal , or other work-ielief
projects shall be considered as earnings See Republic Steel Corporation v. N L R B.
311 U S 7.
FALCON TOOL COMPANY 1285
Upon the basis of the foregoing findings of fact and upon the entire record
in the case the undersigned makes the following :
CONCLUSIONS OF LAW
1. Region 1, International Union, United Automobile, Aircraft & Agricultural
Implement Workers of America (UAW-CIO) is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of
Albert Schmierer and Max Walters, thereby discouraging membership in a
labor organization, the respondent has 'engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning .of Section 2 (6) and (7) of the Act
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law the under-
signed recommends that the respondent, Falcon Tool Company, Detroit, Michi-
gan, and its officers, agents, successors and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in any labor organization of its employees
by discharging or refusing to reinstate any of its employees or by discriminat-
ing in any other manner in regard to the hire and tenure of employment or
any term or condition of employment of its employees ;
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form, join or assist Region 1,
International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America (UAW-CIO), or any other labor organization, to bargain
collectively through representatives of their own choosing and to engage in
concerted activities for the purpose of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act.
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer Albert Schmierer and Max Walters immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to their
seniority or other mutual rights and privileges;
(b) Make Whole Albert Schmierer and Max Walters for any loss of pay they
may have suffered by reason of the respondent's discrimination against them by
payment to them of a sum of money equal to the amount which they normally
would have earned as wages during the period from the respective dates of their
discharges to the date of the respondent's offer of reinstatement, less their net
earnings 20 during such period ;
(c) Post immediately in conspicuous places throughout its plant at Detroit,
Michigan, and maintain for a period of at least sixty (60) consecutive-days-from
the date of posting, notices to the employees stating• (1) that the respondent
will not engage in the conduct from which it is recommended that it cease and
desist in paragraph 1 (a) and (b) of these recommendations; (2) that the
respondent will take the affirmative action set forth in paragraph 2 (a) and (b)
20 See footnote 25, supra.
-1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of these recommendations ; and (3) that the respondent's employees are free to
become or remain members of Region 1, International Union, United Automobile,
Aircraft & Agricultural Implement Workers of America (UAW-CIO) or any
other labor organization, and that the respondent will not discriminate against
any employee because of his or her membership in, any such organization ;
(d) File with the Regional Director for the Seventh Region on or before ten
(10) days from the receipt of this Intermediate Report, a report in writing setting
forth in detail the manner and form in which the respondent has complied with
the foregoing recommendations.
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations the National
Labor Relations-Board, issue an order, requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National. Labor Relations Board, Series 3. as amended, effective November 26,
1943, any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Boaid, Rocham-
beau 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 objec-
tions) as he relies upon, together with the original and four copies of a brief in
support thereof. Immediately upon the filing of such statement of exceptions
and/or brief, the party or counsel for the Board filing the same shall serve a copy
thereof upon each of the other parties and shall file- a copy with the Regional
Director. As further provided in said Section 33, should any party desire per-
mission 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.
CHARLES E PERSONS,
Trial Examiner.
Dated August 21, 1944.