Titan Metal Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 24, 1952

99 N.L.R.B. 872 (N.L.R.B. 1952)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminatory action-in the case of Sturdivant , November 7, 1950; in the case of
Archer, from that date which, had he been notified , would have resulted in his
successful bidding on a posted vacancy-to the date when each is offered rein-
statement . The quarterly periods, herein called quarters , shall begin with the
first day of January, April, July, and October. Loss of pay shall be determined
by deducting from a sum equal to that which these employees normally would
have earned for each quarter or portion thereof their net earnings ." if any, in
other employment during those periods . Earnings in one particular quarter
shall have no effect upon the back-pay liability for any other quarter. It will
also be recommended that the Association be ordered to make available to the
Board , upon request, payroll and other records to facilitate the calculation
of the amounts of back pay due.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , I make the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Local 266-B , AFL, 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 Leo
Sturdivant and A. E. Archer , thereby discouraging membership in a labor organ-
ization , Salt River Valley Water Users Association has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
3. By interfering with, restraining , and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, that Association has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (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.
5. The Union has not engaged in unfair labor practices within the meaning of
Section 8 (b) (1) (A ) and (2 ) of the Act.
[Recommendations omitted from publication in this volume.]
18 Crossett Lumber Company, 8 NLRB 440.
TITAN METAL MANUFAOrURINO COMPANY and FEDERAL LABOR UNION
No. 19981, AFL. Case No. 6-CA.-880. June 24,1952
Decision and Order
On October 29, 1951, Trial Examiner Bertram G. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (3) and 8 (a) (1) of the Act,
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 supporting brief.
99 NLRB No. 139.
TITAN METAL MANUFACTURING COMPANY 873
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case, and
finds merit in the Respondent's exceptions for the reasons hereinafter
set forth.
The Trial Examiner found that Fred Hartswick was unlawfully dis-
charged about July 1, 1950, and that the Respondent thereby violated
Section 8 (a) (3) and 8 (a) (1) of the Act. We do not agree.
The Respondent contends, in effect, that the precipitating cause
for its disciplinary action against Hartswick was the notice posted
by him on the plant bulletin board on June 30, 1950, concerning
Sunday work, and that, "in fixing the penalty of discharge," it con-
sidered as "background" and "reviewed" certain past incidents in-
volving Hartswick. The vice of the June 30 incident, as stated by the
Respondent at the time of the discharge, was that Hartswick, in post-
ing the notice (1) issued false information to the employees, (2) vio-
lated the contract between the Respondent and the Union, and
(3) overstepped his authority as chief union steward.' The Trial
Examiner, however, found that Hartswick's union activities since
1945 were the "compelling influences" behind the discharge, and that
the reasons assigned at the time of the discharge were without sub-
stance and "in fact were an excuse and subterfuge" to cover the real
motivation for the discharge.
The operative facts in the case established by the credible and
largely uncontradicted testimony are as follows :
The contracts between the Respondent and the Union in effect be-
tween August 1946 and August 1948 provided, inter alia, that
The regular work week shall be forty (40) hours per week, pro-
vided that [except for certain necessary maintenance work, etc.]
no work shall be performed on Sundays after January 1,
1947. . . .
In 1948, the Respondent and union representatives met to negotiate
a new contract. In the course of these negotiations the question of
Sunday work was raised, the Union wanting to "spell the work week
out" and provide for double time for Sunday work. Business was
poor at the time, and the Respondent took the position, "You're not
going to get any of it anyway . . . let's forget it and let it out."
The contract finally agreed to, covering the period from August 1948
to August 1949, contained the following wage and hour provisions :
1 The Trial Examiner has viewed reason ( 3) as embracing reasons (1) and (2). This
treatment is warranted by the record, and we have accorded to reason ( 3) the same com-
prehensiveness as the Trial Examiner.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The regular workweek shall be from 7: 00 A. M. Monday to
7: 00 A. M. Saturday. Time and one-half shall be paid for all
work performed over forty (40) hours per week and for Armis-
tice Day . . . Memorial Day, Fourth of July, Labor Day,
Thanksgiving Day and Christmas Day.
Where work is scheduled for any Saturday and an employee
is so notified, it is the duty of the employee to work on Saturday
unless he shall first have notified his foreman that he will not be
available for work on such Saturday.
No employee shall be laid off during the period of any regular
workweek when any department or branch of a department is
operating for the sole purpose of preventing an accumulation
of overtime and thereby compelling such employee to work on a,
Saturday or Sunday in order to acquire his minimum of forty
hours. [Emphasis added.]
Virtually the same provisions were included in the 2-year contract
executed by the parties in August 1949, which contract was in effect
during the critical period in this case.
From the date of the execution of the 1948 contract until the early
part of 1950, there was no occasion for Sunday work at the Respond-
ent's plant. However, business conditions then improved and Sunday
work was necessary in certain departments. It was performed in the
automatics department on May 14, 21, and 28, and on June 4, 11, 18,
and 25. During this period many employees questioned Hartswick,
who was then chief department steward in the automatics depart-
ment,2 about the matter of Sunday work. Hartswick told them that
there was nothing in the contract to prohibit them from working on
Sunday and that "it was entirely up to them . . . but if they
worked on Sunday, they were not covered by our contract." At a
union meeting on May 1, Hartswick made substantially the same
observation to the assembled members. Twice during this same
period, about 2 or 3 weeks before the posting incident, Hartswick
complained to Hinds, the foreman of the automatics department,
about Sunday work and produced a copy of the 1947-1948 contract
which, as appears above, prohibited Sunday work. When Hinds
told him that the prohibition was not included in the 1949 contract
which was then operative, Hartswick remarked that "it should have
been." According to Hartswick, Hinds also told him that "this Sun-
day work would only be for maybe two or three weeks, something
like that."
' Hartswick served as chief steward of the automatics department from 1946 to the date
of his discharge . In 1947 he also served as vice president of the Union , and in 1948, as
president and a member of the grievance committee . He was returned to the presidency in
1950, from which office he resigned the early part of June , before his discharge.
TITAN METAL MANUFACTURING COMPANY 875
On Friday , June 30, at about 2 p. in., Hinds posted a notice an-
nouncing that work would be available for certain named employees
on the following Saturday and Sunday . A few minutes after post-
ing this announcement Hinds met Hartswick as the latter was com-
ing out of Hinds' office . At this meeting, Hartswick told Hinds :
"I'm going to put up a god - damn notice and stop this Saturday work."
Shortly thereafter, Hartswick posted the following notice on a tool
box in the cribroom where he worked :
JUNE 30, 1950
To All Union Members in Automatic Dept.:
Anyone working in production on Sundays , which is against
the contract, do not ask for any help from your department
steward or your Local Union , 19981 in case you get in any trouble.
FRED HARTSWICK,
Chief Dept. Steward.
When Hinds observed the notice a few minutes later , he told Harts-
wick to remove it from the tool box and place it on the bulletin board.
Later the same day, Hartswick 's notice was brought to the atten-
tion of Philip B. Ray , the Respondent 's manager of industrial re-
lations , and at approximately 4 p. m._it was removed from the bulletin
board. On the next day, the Respondent 's penalty committee , consist-
ing of Ray , Works Manager Tressler, and Superintendent Crispen,
met and decided to discharge Hartswick . On Monday , July 3, Harts-
wick was advised that he was being discharged because, in posting
the above notice , he had issued false information to the employees,
violated the contract, and overstepped his authority as a department
steward . On July 5, the Respondent and the Union 's grievance com-
mittee met concerning Hartswick . The union representatives did not
challenge Respondent 's decision to discipline Hartswick ; they argued
only that the penalty imposed was too severe . The Respondent ad-
hered to its original position and, in support thereof, pointed to certain
prior incidents involving Hartswick . Those incidents are as follows:
1. In 1945, 14 employees , including Hartswick , were discharged
(but later reinstated) allegedly because they punched out before the 3
o'clock whistle blew, in violation of a company rule. The Respondent
charged Hartswick with being the instigator of the incident.
2. Sometime in 1948 or early in 1949 , the Respondent eliminated the
15-minute rest and eating period theretofore allowed the employees
in the morning. Hartswick , acting as president of the Union, there-
upon ordered the Union 's secretary to prepare and post notices advis-
ing the employees that an article in the Union 's contract with the
Respondent permitted them to "go to ... [their] lunch pail at any
time during the working hours and eat a sandwich or equivalent as
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
long as ... [they] didn't abuse the time." 8 However, the notice pre-
pared and posted by the Union's secretary told the employees that
they were free to eat their lunch during any part of the working day.
3. Shortly after Hartswick again became president of the Union in
1950, he insisted upon participating in the grievance meetings with
the Respondent as a sixth member of the Union's grievance committee.
The contract between the Union and the Respondent provided for a
union grievance committee of only five members.
4. In May 1950, the Respondent was using its employees to construct,
an addition to its plant. On May 2 the regional director for the AFL
sent the following telegram to Hartswick, with instructions that he
deliver it to Ray :
Director of Organization request that members of Federal
Labor Union 19981 comply with my wire of April 26, that Federal
Labor Union members refrain immediately from doing new con-
struction work at Titan Metal Manufacturing Company ... as
per our contract covering only production and maintenance
workers.
Early the next morning Hartswick delivered the telegram to Ramish,
the foreman supervising the construction job, and not to Ray. At the
same time he told Ramish not to assign any more employees to the
construction work, and notified him that he had appointed the plant
janitor "to see that no one would work on this job."
5. In 1946, the Union and the Respondent jointly agreed to the
formation of the Titan welfare committee. The purpose of the com-
mittee was to raise funds, by way of employee contributions, to be
used for making donations on behalf of the employees to worthy
causes approved by the committee, such as the Red Cross, the Infantile
Paralysis Fund, and the Community Welfare Association, and to
provide for sick and personal disaster benefits. It was the hope of the
Union and the Respondent thus to eliminate individual soliciting in
the plant.
The committee is composed of three union members and Ray, who'
is its treasurer. When it was first formed, union and nonunion em-
ployees and "Company personnel" made contributions to the fund.
After the Respondent agreed to a union shop, the "Company per-
sonnel" formed a welfare committee of their own. The Respondent
8 The precise date of the incident under discussion is not fixed in the record. Nothing
in the 1947-48 contract , which was effective between April 14, 1947, and August 11, 1948,
or in the 1948-49 contract , which was effective between August 11, 1948 , and August 11,
1949, gave employees the right claimed by Hartswick on this occasion . An appendage to
the 1947-48 contract entitled "Company Policies," which was not made part of the con-
tract, provided:
Most departments work a regular eight -hour shift which includes a fifteen-minute
rest period and a thirty-minute lunch period. Employees should consult foreman for
detailed schedule in any particular department.
TITAN METAL MANUFACTURING COMPANY 877
has undertaken at its own expense to deduct the employees' contribu-
tions from their pay and to keep records thereof.
In the latter part of 1949, the committee pledged $1,200 to the
Centre County Hospital, payable in monthly installments of $100.
Payments on this pledge were made for the period covering October,
November, and December 1949, and January 1950. When Hartswick
again took over as president of the Union in January 1950, he took
steps to stop payments on the pledge. Thus, in February he appointed
Claude Poorman to the committee in place of Daniel Richmond, who
had honored the commitment made to the hospital. When the com-
mittee next met, Poorman notified Ray that "by orders of Mr. Harts-
wick the committee was not allowed to issue any more checks to
the ... Hospital." Still not satisfied with the way the committee
was functioning, Hartswick removed Poorman from the committee
and appointed himself to that office. Thereafter, at a meeting of the
committee held on June 23, Hartswick made it plain that he would
not sign any checks payable to the hospital -4
The Trial Examiner concluded from all the foregoing that the
reasons assigned on July 3 for the discharge lacked substance and were
mere pretexts, and that prior incidents dating back to 1945 were the
"compelling influences" behind the discharge. He found, inter alia,
that Sunday work on June 30 was "against the contract" and that the
notice posted by Hartswick did not, therefore, contain false informa-
tion. He also found that the posted information was, in any event,
"conscientiously advanced by Hartswick in an endeavor to carry out
his prescribed duties as chief shop steward for the Union." We do not
agree with either of these subsidiary findings.
As to the propriety of Sunday work under the contract, it is quite
clear that the 1949 contract contains no express probihition against
Sunday work. The proscription against such work contained in the
earlier contracts was deliberately omitted from the 1949 contract. Nor
do we find any implied prohibition against Sunday work in that the
contract fixes the regular workweek as being from "7 : 00 A. M. Mon-
day to 7: 00 A. M. Saturday," and fails to provide the rate of pay for
Sunday work, as the Trial Examiner rationalizes. For, we note that
the contract does recognize the possibility of Sunday work in those
cases, at least, where an employee has not averaged 40 hours during
the regular workweek.5
Nor is there any basis for exculpating Hartswick's conduct on the
ground that the conduct misrepresenting the contract in the matter
of Sunday work was conscientiously advanced in pursuit of his duties
4 After Hartswick left the Respondent 's employ in July, payments on the pledge were
completed by the committee.
6 Significantly , so far as the record discloses , no union representative other than Harts-
wick protested the Respondent 's inauguration of Sunday work.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as chief steward . The events surrounding the posting convince us
that the notice did not reflect Hartswick's honest opinion about the
validity under the contract of Sunday work and that it was not posted
by Hartswick in a good faith endeavor to carry out his union duties.
Thus, as detailed above, the record shows that (a) Hartswick was op-
posed to Sunday work after it was started by the Respondent; (b)
Foreman Hinds made it plain to Hartswick before June 30 that the
1949 contract did not contain the prohibition against Sunday work
which was included in the 1947-48 contract, and Hartswick himself
advised employees on many occasions before June 30 that Sunday work
was not forbidden by the 1949 contract; (c) after learning about
Hinds' announcement of Sunday work on June 30, Hartswick told
Hinds that he was "going to put up a god-damn notice and stop this
Sunday work"; 6 and (d) following his threat to put a stop to Sunday
work, Hartswick posted the notice in question telling the employees
that Sunday work was "against the contract" and not to expect help
from the Union if they got into trouble by working on Sundays.
Moreover, Hartswick's attempted explanation at the hearing is
clearly vulnerable and therefore unacceptable. Thus, although Harts-
wick testified on the one hand that in his opinion Sunday work was an
infraction or violation of the contract, he also testified that Sunday
work was not illegal and that there was nothing in the contract to
prohibit it. Also, his testimony that the notice was posted for the
purpose of answering the many questions being asked by employees
about Sunday work is virtually impossible to reconcile with his state-
ment to Hinds, before posting the notice, that he was going to "put up
a god-damn notice and stop this Sunday work." 7
On the basis of all the foregoing, we are of the opinion, and find,
that Sunday work was not "against the contract," that the notice posted
by Hartswick misrepresented the contract in this respect, and that this
6 It is noteworthy that June 30 was about the time when , according to Hinds' earlier
statement to Hartswick , Sunday work was to have been discontinued.
In this connection , the record contains the following testimony by Hartswick
Q. I think I understood you to say , in response to a question . . . asking why you
posted notice .. . . that you wanted the employees to know about Sunday work so that
they would know whether they might be penalized relative to Sunday work , and also
you told them that it was up to the individuals whether he would work on Sunday.
Those are the reasons why you posted the notice?
A. That is right.
Q. Well now , you don't say anything in your notice at all about it being up to the
individual whether he wanted to work, did you?
A. They were told that.
Q. They were told that , but you didn ' t put it in the notice
A. No, sir.
Q Why didn't you put it in the notice?
A. I thought that that was all that m as necessary.
Q And did you tell them in the notice they would not be penalized if they
worked on Sunday?
A. I did not. '
Q. And why didn ' t you do that?
A. I thought the notice was sufficient, what I had written on it.
TITAN METAL MANUFACTURING COMPANY 879
-was a deliberate misrepresentation on the part of Hartswick, who
posted the notice for the purpose of putting a stop to work which
was objectionable to him. Accordingly, to the extent that the Re-
spondent is found to have been motivated by this conduct," which it
viewed as an overstepping of Hartswick's authority as a shop steward,
there was no violation of the Act.
Nor was there any violation of the Act in the Respondent's admitted
reliance in part, in arriving at its decision to discharge Hartswick, on
Hartswick's conduct in the several incidents described above. With
respect to the 1945 incident involving the discharge of Hartswick and
13 other employees, there is no basis whatever for finding that
Hartswick's participation in that incident was in any way related to
union or concerted activity which is protected by the Act. As for the
other incidents, even assuming arguendo that Hartswick's involvement
in each of them was related to the discharge of his duties as an officer
of the Union, the totality of the evidence persuades us that in all of
them Hartswick gave the Respondent good reason to be annoyed with
his behavior and that it was the Respondent's annoyance with this
aspect of Hartswick's activity, rather than with any legitimate pro-
tected activity by him that may also have been involved, that influenced
the Respondent in its decision to terminate Hartswick s Thus, the
notice posted concerning eating time, whose accuracy was Hartswick's
responsibility, admittedly misrepresented whatever contract was in
effect at the time; Hartswick's attempts in 1950 to impose himself
as a sixth member of the Union's grievance committee was in conflict
with the provisions of the contract calling for a five-man grievance
committee; although Hartswick was instructed merely to deliver the
May 1950 telegram to Ray, he delivered it to the foreman on the con-
struction job, ordered that person not to use the Respondent's employ-
ees on the job, and indicated that he had appointed the Respondent's
janitor to see that none of the Respondent's employees worked on the
job; and Hartswick was responsible for dishonoring the pledge to the
hospital theretofore made, and lived up to, by representatives of the
Respondent and the Union. Furthermore, there is no evidence at
8 Although , like the Trial Examiner, we are not persuaded by the Respondent 's conten-
tion that Hartswick violated the contract by posting the notice without prior clearance
from the personnel office , we find, on the basis of the entire record , including the absence
therein of any evidence of union animus on the Respondent 's part, as appears more fully
hereinafter , that this does not impair our finding as to the validity of the other reasons
assigned for the discharge However, in agreeing that the Respondent cannot properly
rely on the failure of Hartswick to obtain prior clearance , we do not adopt the Trial
Examiner 's finding that , in view of the attending circumstances , the posting "became the
act of the Respondent through the agency of Hinds." The record evidence in this con-
nection satisfies us that Hinds was doing no more than giving consent to the mere act of
posting, and not approving the contents of, the notice.
8 The Board has found discharges under similar circumstances not to be unfair labor
practices : Fred A. Snow Company, 53 NLRB 977 ; Converse Bridge & Steel Company, 49
NLRB 374; Briggs Manufacturing Company, 75 NLRB 569.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all in the record of any union animus on the part of the Respondent,
or any other evidence tending to show that as of June 30 the Respond-
ent was determined, or even anxious, to rid itself of Hartswick. In
addition, the relationship between the Respondent and the Union
appears always to have been harmonious and, apart from the alleged
discriminatory discharge of Hartswick, no other unfair labor practices
have either been charged or alleged in the complaint.
On the basis of all the foregoing, and the entire record, we there-
fore find that the preponderance of the evidence fails to establish
that Hartswick was discriminatorily discharged. We shall dismiss
the complaint.
Order
Upon the entire record in the case, and pusuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint issued herein
against the Respondent, Titan Metal Manufacturing Company, be,
and it hereby is, dismissed.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed November 2, 1950, by Federal Labor Union No. 19981,
AFL, herein referred to as the Union, the General Counsel for the National Labor
Relations Board, herein referred to as the Board, by the Regional Director for
the Sixth Region (Pittsburgh, Pennsylvania), issued a complaint dated July 3,
1951, against Titan Metal Manufacturing Company, herein referred to as the
Respondent.
The complaint alleged that the Respondent has engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of Section 8
(a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein referred to as the Act. Copies of the charge,
complaint, and notice of hearing were duly served on the Respondent.
With respect to the unfair labor practices, the complaint alleges in substance
that the Respondent, on or about July 1, 1950, discharged Fred Hartswick from
its employ, and has since failed and refused to reinstate or reemploy him to his
former or substantially equivalent position or employment, because of his mem-
bership and activities in the Union, and that he engaged in concerted activities
with other employees of Respondent for the purpose of collective bargaining
and other mutual aid and protection, and in order to discourage membership in
the Union ; and that Respondent did discriminate and is now discriminating in
regard to hire, tenure, and conditions of employment in order to discourage
membership in the Union, and by all of said acts has engaged in and is now
engaging in unfair labor practices within the meaning of Section 8 (a) (3) of
the Act.
The Respondent filed its answer in which it admitted the jurisdictional allega-
tions in the complaint but denied the commission of unfair labor practices. It
pleaded in its answer that Fred Hartswick was discharged by the Company
for posting false information, violating an existing contract between the Com-
pany and the Union, and exceeding his authority as a steward.
TITAN METAL MANUFACTURING COMPANY 881
Pursuant to notice, a hearing was held August 13 to 15, 1951, at Bellefonte,
Pennsylvania, before Bertram G. Eadie, the Trial Examiner duly designated by
the Chief Trial Examiner. The General Counsel and Respondent were repre-
sented by counsel, the Union by its regional director. All parties participated in
the hearing and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues. At the
close of the hearing, the General Counsel moved to conform the pleadings to
the proof with respect to names, dates, and other formal and nonsubstantive
matters. A similar motion was made by counsel for Respondent relative to the
answer ; without objections from either counsel both motions were granted. The
General Counsel presented oral argument at the close of the whole case. Motions
were made by counsel for Respondent for dismissal of the complaint both at the
close of the General Counsel's case and again at the close of the whole case.
The determination of the motions was reserved and is now denied. A brief has
been received from the Respondent and has been duly considered.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
FINDINGS OF FACT
I. THE BUSINLSS OF THE RESPONDENT
The Respondent, at all times material herein, owned, operated, and maintained
a manufacturing plant at Bellefonte, Pennsylvania, employing approximately
1,200 employees and was and is engaged in the manufacture; sale, and distribu-
tion of brass rods, screw machine products, forgings, and brass die castings.
In the course and conduct of its business during the 12-month period ending
June 30, 1951, the Company purchased for use at its Bellefonte, Pennsylvania,
plant, raw materials and supplies valued in excess of $15,600,000, of which all
were, shipped to the Company's plant from points outside the Commonwealth
of Pennsylvania ; that during the 12-month period ending June 30, 1951, the
Company manufactured and sold finished products valued in excess of $24,000,000,
of which approximately 75 percent was sold and shipped to points outside the
Commonwealth of Pennsylvania.
Respondent admits in its answer the jurisdictional allegations contained in
the complaint and at the hearing stipulated that Respondent, at all material
times herein mentioned, was engaged in commerce within the meaning of the
Act and the Trial Examiner so finds.
H. THE ORGANIZATION INVOLVED
Federal Labor Union No. 19981, AFL is a labor organization within the mean-
ing of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Summary of uncontroverted facts
The Respondent operated 6 plants in the manufacture of machine parts all
located within the city of Bellefonte but all considerable distances from each
other. The automatics department, employing approximately 40 employees, was
housed in building No. 1, together with the die casting department. A bulletin
board was located in that building in close proximity to the time clock and was
used jointly by the 2 departments.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During World War II and for a short period of time thereafter , the Respondent
operated its plants on a schedule of three shifts a day, 7 days a week . The 7-day
week was inaugurated during the war by authority of an Executive Order of the
President of the United States. While the order was in effect , its terms were
carried out and the employees were compensated at a double -time rate for their
Sunday services.
The agreement executed by the Respondent and the Union , dated September
1946 , for the period of 1 year from August 11, 1946, contained a clause to the
effect, to wit :
(a) The regular work week shall be forty ( 40) hours per week , provided
that no work shall be performed on Sundays after January 1, 1947, except
such work as may be necessary to the repair , maintenance , safety and
preservation of the plant and its facilities... .
A subsequent agreement , dated April 14, 1947, contained the same paragraph
covering the period terminating August 11, 1948.
In the succeeding agreement between the Respondent and the Union covering
the period terminating August 11 , 1949, that paragraph was omitted , and the
following paragraphs were inserted in its place , to wit :
(a) The regular work week shall be from 7: 00 A. M. Monday to 7: 00
A. M. Saturday . Time and one-half shall be paid for all work performed
over ( 40) hours per week and for Armistice Day (November 11), Memorial
Day, Fourth of July, Labor Day, Thanksgiving and Christmas Day.
Where work is scheduled for any Saturday and an employee is so notified,
it is the duty of the employee to work on Saturday unless he shall first have
notified his foreman that he will not be available for work on such Saturday.
11
(b) No employee shall be laid off during the period of any regular work
week when any department or branch of a department is operating , for the
sole purpose of preventing an accumulation of overtime and thereby com-
pelling such employee to work on a Saturday or Sunday in order to acquire
his minimum of forty hours . In the event that economic conditions necessi-
tate the use of the "Swing Shift," this paragraph shall be subject to rene-
gotiation upon notice by the Company to the Union.
The foregoing paragraph was contained in the subsequent agreement covering
the period of operation from August 11, 1949, to August 11, 1951 . It will be
noted that Hartswick was discharged during this period.
Hartswick had been an employee of Respondent since September 20, 1939.
He entered Respondent 's employ in its forge shop , worked in that shop for
approximately 1 year, was then transferred to the automatics department where
he was engaged as a machine operator and continued as such for approximately
10 years. In 1949 he became tool crib attendant in that department.
He was engaged during his employment with Respondent in the following
union activities :
In 1946, he was elected chief department steward for the automatics depart-
ment, and held that position continuously until after his discharge by Respondent.
In 1947 , he was vice president of the Union ; and during 1948-49, he was president
of the Union and a member of the grievance committee . In 1950, he again was
president of the Union and resigned as such in May 1950.
The question of Sunday work was discussed by employees at a union meeting.
No formal action was taken by it, however , in regard thereto except on one
TITAN METAL MANUFACTURING COMPANY 883
occasion at the end of 1947, when Arthur R. Auman, the chairman of the grievance
committee, in the presence of and at the request of Respondent and the members
of that committee, called the Pittsburgh office of the Union and informed the
parent union of Respondent's desire to work on a particular Sunday.
Arthur R. Auman, the then chairman of that committee, testified credibly as
to that transaction as follows :
That the Company had one customer who was willing to pay the premium
price of time and one half if they could get a certain forging out. And I
think they used the argument that they only had one die, and they would have
to work over a weekend to get it out. And they wanted to know whether
we would violate the contract and work that Sunday. Mr. Tressler knows
about that. Phil Ray stepped out of his office and turned the office over
to me to call Pittsburgh. The entire Grievance Committee was there. I
called them and asked for advice on what to do in cases like that. It was
a violation of the contract, according to what was accepted by the member-
ship. And the advice to me was that it was close to negotiation time and
that it would put us in better relationship with the Company, and don't
force anybody to do it. If they can get men, let them go themselves, if
they can get men from the Forge Shop to work on Sunday, okay, we are
willing to violate it, decide the contract on that. And that was the informa-
tion that I gave to Mr. Ray when he came back in the room.
Q. Well, the Company. .. .
A. And we got plenty of hell over that.
The Respondent operated on the Sunday for which permission was granted to
it regardless of the terms of the contract for that period . The question of
Sunday work was always present and again was raised in the negotiation of the
1049-51 contract. The provision of the previous contract forbidding it was
eliminated in the newly executed contract.
Hartswick was elected to the presidency of the Union for the year 1950, after
the contract went into effect. Although the members of the grievance committee
had been elected to membership on that committee by the members of the Union,
Hartswick insisted that he had a right to membership thereon as president of the
Union . In protesting on behalf of the Respondent to Hartswick 's participation
in the meetings of the committee , Philip B. Ray, manager of industrial relations
for the Respondent , urged that Hartswick ' s presence at the committee meetings
was unauthorized by the contract between the Union and the Company, which
provided for a grievance committee of five and not six in membership . Harts-
wick , as president of the Union , dismissed the chairman of the welfare committee
and appointed a new chairman , and in a space of weeks substituted himself as
chairman of that committee . Ray was one of the members of that committee.
Although he was not a member of the Union , he took exception to Hartswick's
criticism of the actions of the committee and in his actions in dismissing , or dis-
charging , the chairman on the two occasions and substituting himself. From the
inception of the welfare committee , Ray had acted as its treasurer and Respond-
ent's representative in transferring the employees ' contributions from the Re-
spondent into the hands of the committee . With the approval of the committee
a commitment had been made to the Bellefonte Hospital . Hartswick , when he
became president of the Union , opposed the payment of the contributions to the
hospital contrary to Ray 's support of it. The divergence of the opinions of Ray
and Hartswick culminated in his action in appointing himself as chairman of the
committee.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In May of 1950, Hartswick received a telegram' from Peter M. McGavin,
regional director for the Union for the Western District of Pennsylvania,
which he delivered to John Ramish, foreman of the general factory department.
It had been received the previous evening by Hartswick at his home and was
delivered the following morning, a few minutes before 7 a. in. Ramish at the
time had assembled a crew to start the erection of a building that morning on
the premises of Respondent. Upon receipt of the telegram, Ramish decided not
to proceed with the construction and put his crew at other tasks. When higher
officials arrived at the plant at approximately 8 a. in., Ramish reported to
them the reason he had not proceeded with the work was that Hartswick had
delivered the telegram and warned him not to proceed. Ray thereupon contacted
the union officials at Pittsburgh, and the matter was amicably adjusted and the
work was then commenced.
Hartswick had previously caused a notice to be posted on the bulletin board in
regard to the luncheon period. That notice was prepared by the then secretary
of the Union at Hartswick's direction. It was signed by him and posted upon
the bulletin board. Almost immediately thereafter Hartswick was called to the
office of the plant superintendent. The notice and the manner of posting it was
objected to by Ray. A new notice was drafted by Ray and Hartswick, more in
conformity with the terms of the contract, and placed upon the bulletin board in
its place and stead. Hartswick admitted that the first notice was in error and
was not in accordance with his instructions to the secretary of the Union who
had prepared it.
On the afternoon of June 30, 1950, at approximately 2 o'clocky John E. Hinds,
a foreman of the automatics department, posted a notice on the joint bulletin
board for the die casting and the automatics departments, to the effect that there
would be work for certain men, naming them, in the automatics department on
the following Saturday and Sunday. It was not the first time that such a notice
relating to Saturday or Sunday work had been posted on the bulletin board by
him. He did not know when the custom had been first established but he thought
that it had been commenced sometime in May 1950. Before posting the notice, he
had had two previous conversations with Hartswick on the subject matter of Sun-
day work. On each of these occasions Hartswick produced and referred to a
printed copy of the 1947-48 contract which prohibited Sunday work. Hinds
pointed out to him that under the 1949-51 contract there was no such prohibition.
Hartswick, however, contended that the provisions contained in the previous con-
tracts negotiated for the years 1947-48 and 1948-49 should have been incorporated
in the 1949-51 current contract, and further that the 1948-49 contract did not au-
thorize Sunday work. Hartswick had been one of the negotiators for the Union
leading to the execution of the contracts for the years 1947-48 and 1948-49. He
was not, however, one of the negotiators for the contract under which the
Respondent and Union were then operating, although at the time It became
effective he was president of the Union.
The Respondent distributed to each of its employees printed copies of the
contracts which it had entered into with the Union, shortly after their execution
by the parties.
1 Fred Hartswlck, 109 Hartswick Ave., State College, Penn. :
Director of Organization Request That Members of Federal Labor Union 19981
Comply With My Wire of April 26, That Federal Labor Union Members Refrain Im-
mediately From Doing New Construction Work at Titan Metal Manufacturing Com-
pany Bellefonte Pa as per Our Contract Covering Only Production and Maintenance
Workers.
PETER McG&vig.
TITAN METAL MANUFACTURING COMPANY 885
Hartswick had many discussions, at least 50, with employees relative to
Sunday work in May and June, continuing up until he was discharged. Em-
ployees of other departments sought his advice, as president, ex-president, ex-
member of the grievance committee, and chief department shop steward, as to
their rights in engaging in Sunday work under the terms of the 1949-51 contract.
He advised them if they worked on Sundays they were on their own initiative
and that if they did so, they would not be covered by the contract. Ninety per-
cent of the employees inquiring of him were not in favor of Sunday work.
Hartswick saw the notice which had been posted by Hinds and upon meeting
with him a few minutes thereafter said, "I'm going to put up a god-damn
notice and stop this Sunday work."
He then prepared a notice 2 and attached it to a tool box in the tool crib room
where he worked . The notice was as follows :
JUNE 30, 1950.
To All Union Members in Automatics Dept.:
Anyone working in production work, on Sundays which is against the
contract , do not ask for any help from your dept Steward or your Local
Union , 19981 in case you get in any trouble.
CHIEF DEPARTMENT STEWARD FRED HARTSWICK.
The notice was observable to any one using the tool crib room. It was placed
about 5 feet from the floor . Hinds, in passing through the room a few minutes
after the notice had been tacked to the tool box, observed it and told Hartswick
"to take it down off that little box and put it up on the bulletin board ." Hartswick
took it down and posted it as directed by Hinds. Hinds and Hartswick both
clocked out within a few minutes after the change was made and left the plant
for the day. At about 2 : 45 p. m . that same afternoon Fred B. Yorks , the foreman
of the die casting department , had his attention directed to the notice by two
employees of his department . They had read both notices and consulted him as
to their employment for the Sunday work. They were confused by the notice.
He immediately brought the matter to the attention of the superintendent and
the works manager of Respondent and after consulting with Ray, he was in-
structed to remove the Hartswick notice from the bulletin board and bring it to
the office of Ray. The notice was removed from the bulletin board between
4and4 : 15p.m.
B. The discharge of Fred W. Hartswick
Hinds left the plant after Hartswick had placed the notice on the bulletin
board. He arrived home at about 6 p. m. and received a phone message from
Ray to the effect that he should meet him at the plant the next morning. Ray,
the personnel officer, Nessler , the superintendent , and Crispen , the plant man-
ager, were there when Hinds arrived . Hinds signed the complaint 8 commonly
known as a foreman's complaint , which had been prepared the preceding evening
by the penalty committee , consisting of Ray, Tresser, and Crispen . Phillip B.
Ray testified credibly in regard to the actions of the penalty committee pre-
ceding the signing of the complaint by Hinds, as follows :
Q. At the Saturday morning meeting, or the previous day, whichever it
may have been?
A. Well, we reviewed the discussion which we had had the previous eve-
ning. At the same time several other matters were discussed , which had
2 G. C. Exhibit 3.
8 G. C. Exhibit 5.
215233-53-57
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a direct bearing in showing the attitude and past actions of the employee.
And, on the basis of his posting this notice, the four of us decided, agreed
that a penalty of discharge would be imposed.
Q. And what was done with respect to this action?
A. A foreman's complaint was prepared, signed by Mr. Hinds, and an
original and three copies.
Q. Can you tell us whether you were following the customary procedure in
all respects with respect to the preparation of such a foreman's complaint.
A. To the best of my knowledge yes.
s • s s s s s
Q. And what happened to these copies, if you know?
A. Two of the copies were given to Mr. Hinds, one was mailed to the
Union, and I kept one in my office for filing.
On the following Wednesday morning, July 5, a meeting of the grievance
committee of the Union was held at which Hartswick and the Respondent's
representatives, Ray and Crispers, were present. Hinds was not in attendance,
but was only called to the meeting when the conferees were informed that Hinds
had instructed Hartswick to take down the notice which he had pinned up on his
tool box and to put it up on the bulletin board. When Hinds appeared at the
meeting he corroborated Hartswick's recital as to his acts in directing him to
take the notice down and put it up on the bulletin board. Hinds testified credibly
as follows:
A. When I come back out I walked to the tool crib and Mr. Hartswick
had the notice up on his tool box, which sat on top of another small cup-
board, and I asked Mr. Hartswick if he wouldn't remove that and put it on
the bulletin board where all notices belong, that the Company provided
for company use or for Union use.
O
Q. What did you tell Mr. Hartswick if anything, when you saw the notice
in the tool crib room?
A. Yes, Sir, I asked him to remove that notice and to take it and put it
up on the bulletin board.
At the conference held in Ray's office by the members of the penalty committee
at the time the complaint was formulated for the discharge of Hartswick, the
previous actions of Hartswick as chief shop steward, president, member of the
grievance committee, and chairman of the welfare committee were discussed.
The subjects were again discussed the next morning in the presence of Hinds,
prior to his signing the foremen's complaint. At the meeting of the grievance
committee on July 5, 1950, the same subjects weie again brought into the dis-
cussion by Ray who claimed Hartswick had exceeded his authority while presi-
dent of the Union in attending a meeting of the grievance committee as an ex-
oficio member of that committee ; that he also exceeded his authority in accept-
ing the resignations of the chairmen of the welfare committee and appointing
himself to that position. As chairman, Hartswick had questioned, on the part
of the Union, certain contributions being made monthly to the Bellefonte
Hospital. Ray was a member of that committee although he was not a union
member. Ray also accused Hartswick of exceeding his authority in delivering
to Ramish, a foreman, a telegram which he had received from union head-
quarters advising the Respondent to forego the commencement of certain build-
ing operations on company property, and then ordering Ramish to stop any
further yvork thereon. Ray maintained that Hartswick, as chief shop steward,
TITAN METAL MANUFACTURING COMPANY 887
was the cause of the layoff of 14 employees in 1945-46, and that he, as chief shop
steward, had caused a notice several years ago to be placed on the bulletin board
relating to a luncheon period provided for in the then contract, which had been
improperly drawn and which did not follow the terms of the contract. The
notice had been immediately called to the attention of Hartswick ; he admitted
that the notice was improperly drawn. It was removed from the bulletin board
and a notice was drafted by Ray in collaboration with him and substituted in
its place.
At the conferences among the members of the penalty committee, and at the
meeting of the grievance committee at which the members of the penalty com-
mittee were present, the above-mentioned subjects concerning Hartswick's ac-
tivities were introduced for discussion by Ray.
Respondent's contention is that these matters were background only and
that the discharge of Hartswick was based solely on his actions in posting the
notice on the bulletin board and that his prior actions as chief shop steward
were not considered by it in discharging him.
Conclusions
Summarizing the facts of record it is found that there is a preponderance
of substantial evidence that Hartswick at the request, order, or direction of his
foreman during working hours took down and removed from his tool chest in the
tool crib room the questioned notice and placed it upon the bulletin board, where
it remained for less than 30 minutes. It was addressed "To all Union members
in Automatics Dept." He had consistently opposed Sunday work, under the
contract, at the union meetings and in his individual talks with employees in
the automatics and other departments.
His actions in drafting and posting the notice in the tool crib room were
clearly in the performance of his duties as chief shop steward. He had been
questioned by employees in regard to Sunday work. He steadfastly and honestly
maintained that for the employees to work on Sundays was against the terms of
the contract as there was no provision in it for Sunday work. He pointed out
that the workweek began at 8 a. in. on Monday and closed at 8 a. in. on Saturday,
according to the provisions of the contract. Whether his construction of the
contract was proper or otherwise, it was not the premise of the Respondent to
penalize him for his opinion in relation thereto, if that opinion was advanced or
publicized under proper auspices. Certainly he had the right to advance his
opinion to his fellow employees at their union meetings or when his advice was
requested.
The following paragraph is to be found in the foreman's complain, to wit :
We contend that in posting this notice, Hartswick violated the contract
and in doing so issued false information to employees of that department.
Article XII of the contract provides as follows :
The Company shall permit the use of bulletin boards in departments for
posting notices concerning the meeting and functions of the Union. Before
posting any such notices, the Union shall deliver a copy of the same to the
personnel office of the company.
The notice in question was placed on the bulletin board by Hartswick, acting
in the capacity of chief shop steward of his department, under the authoriza-
tion, direction, or order of Hinds, his foreman. Furthermore, Arthur R. Auman,
chief department steward of plant No. 4, had posted a notice which was his
opinion of a question that had arisen under a previous contract without pre-
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
viously filing it with the personnel office before posting and to which Respondent
made no objection. The various foremen of the Respondent used the bulletin
boards of their respective departments in posting notices to their employees
without previous notices being filed with the personnel office. The notice relating
to the luncheon period in a previous contract which Hartswick had posted on
the bulletin board and which was found to be inaccurate was removed forthwith
by the Respondent's official and the inaccuracy corrected.
The Respondent had the right to place its notices on the bulletin board, if
such notices were not in violation of the terms of its contract with the Union
4or did not constitute unfair labor practices under the Act. When Hinds, as
Hartswick's foreman, authorized, consented to, ordered, or directed the post-
ing of the notice on the bulletin board, it became the act of the Respondent
through the agency of Hinds, and not the independent act of Hartswick for
which he could be reasonably charged as violating the provisions of the contract.
Did the notice contain false information? Hartswick's phraseology is as
follows :
Anyone working on production work on Sundays, which is against the
contract, do not ask for any help from your department steward of your
local Union 19981 in case you get in any trouble.
Reiterating the foregoing facts, it has been found that the Respondent operated
during World War II on Sundays at a double-time rate of pay for the employees,
such operation took place by authority granted in an Executive Order of the
President. At the termination of the war or shortly thereafter, the order was
withdrawn, recalled, or rescinded, as it applied to future work. Thereupon the
Union and Respondent entered into contracts between them which forbade
Sunday work after January 1, 1947. On drafting the contract between the
parties for the term 1949-51, which is the material period under which the
questions herein arise, the contract was silent as to all mention of Sunday
work. The contract contains the following provisions :
The regular work week shall be from 7: 00 A. M. Monday to 7: 00 A. M.
Saturday. Time and one half shall be paid for all work performed over (40)
hours per week and for Armistice Day (November 11), Memorial Day, Fourth
of July, Labor Day, Thanksgiving Day and Christmas Day.
Where work is scheduled for any Saturday and an employee is so notified,
either personally or by a bulletin being placed on the department bulletin
board, not later than Friday, it shall be the duty of the employee to work on
the Saturday specified, unless he shall have first notified his foreman not
later than Friday, that he will not be available for work on such Saturday.
If an employee fails to notify his foreman by Friday that he will not be
available for work Saturday, such absence shall be covered with a fore-
man's complaint. No employee shall be laid off during the period of any
regular work week when any department or branch of a department is
operating, for the sole purpose of preventing an accumulation of overtime
and thereby compelling such employee to work on a Saturday or Sunday.
In the event that economic conditions hereafter necessitate the use of the
swing shift, this paragraph shall be subject to renegotiation upon notice by
the company to the Union, except that the swing shift shall be permissable
without negotiation when applied to jobs on continuous operation, such as
plant firemen and guards.
There are many forceable arguments in support of Hartswick's contention that
Sunday work was "against the contract." (a) Was it outside of the contractual
period, between 8 a. in. Monday and 8 a. in. Saturday? (b) Was any pay pro-
TITAN METAL MANUFACTURING COMPANY 889
vided for Sunday work? (c) If there was, did it fall under the overtime pro-
visions of the contract, of time and a half for the employee who had completed
40 hours previously or straight pay if he had not completed 40 hours?
The Trial Examiner is of the opinion and concludes that the notice does not
contain false information ; if, however, he should accept the contention of the
Respondent that it is false, it was conscientiously advanced by Hartswick in an
endeavor to carry out his prescribed duties as chief shop steward for the Union.
The foreman's complaint charges Hartswick under specification (3) with over-
stepping his authority.
If such charge applies to the posting of the notice on the bulletin board without
the permission of the personnel office, it must fail, for the reason stated above
that it was placed there at the direction of his foreman. If, however, it is directed
at the contents of the notice, it is clearly a complaint against him for expressing
his opinion as chief shop steward concerning the meaning of certain clauses
contained in the contract which became his duty as such to advise his fellow
employees.
The Trial Examiner reaches the conclusion that the reasons given by Respond-
ent for Hartswick's discharge were not the actual bona fide reasons for its
action in so doing, but in fact were an excuse and subterfuge to cover its real
purpose in ridding itself of an obnoxious employee to it, who had acquired lead-
ership in the Union and had not followed the lines of least resistance.
The Trial Examiner finds that Hartswick's actions as chief shop steward in the
several instances hereinbefore set forth were the compelling influences which
brought about and caused his discharge. In each of those instances he was
acting clearly within his rights as chief shop steward, and while his actions
clashed with the Respondent's desires they in no respect offered sufficient cause
for discharge under the Act.
The Trial Examiner reaches the conclusion that the Respondent discrimina-
torily discharged Fred W. Hartswick from its employ on July 1, 1950, contrary
to the provisions of the Act.
The Trial Examiner finds on substantial creditable evidence which has not
been rebutted that Fred W. Hartswick was discriminatorily discharged by
Respondent from its employ on July 1, 1950, because of his activity on behalf of
the Union ; that by his discharge Respondent discouraged membership in and
activity on behalf of a labor organization and interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the
Act. Respondent thereby violated Section 8 (a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in Section III, above, occurring in
connection with its operations described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent has engaged in certain unfair labor
practices, it will be recommended that it take certain affirmative action designed
to effectuate the policies of the Act.
Having found that Respondent discriminated with respect to the hire and
tenure of employment of Fred W. Hartwick by discharging him because of his
union and concerted activities, it will therefore be recommended that Respondent
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
offer Fred W . Hartswick immediate and full reinstatement to his former or
substantially equivalent position , without prejudice to his seniority and other
rights and privileges , and make him whole for any loss of pay he may have suf-
fered by reason of Respondent 's discrimination against him , consistent with the
Board 's policy of computing back pay. It will be recommended also that the loss
of pay be computed on the basis of each separate calendar quarter, or portion
thereof, during the period from the discriminatory action to the date of a
proper offer of reinstatement to said employee . The quarterly periods, herein-
after called "quarters," shall begin with the first day of January, April, July,
and October . Loss of pay shall be determined by deducting from a sum equal to
that which he would normally have earned for each quarter , or portion thereof,
his net 4 earnings, if any, in other employment during that period. Earnings in
one particular quarter shall have no effect upon the back-pay liability for any
other quarter. It will also be recommended that Respondent make available to
the Board, upon request, payroll and other records to facilitate the checking of
the back pay due.`
In the opinion of the Trial Examiner, Respondent's conduct discloses a fixed
purpose to defeat self-organization and its objectives . Because of Respondent's
unlawful conduct and its underlying purpose the Trial Examiner is convinced
that the unfair labor practices found are persuasively related to the other
unfair labor practices proscribed by the Act and that the danger of their
commission in the future is to be anticipated from the course of Respondent's
conduct in the past. The preventive purpose of the Act will be thwarted un-
less the recommendations are coextensive with the threat . In order , therefore,
to make effective the interdependent guarantees of Section 7, to prevent a recur-
rence of unfair labor practices , and to minimize strife which burdens and ob-
structs commerce, and thus to effectuate the policies of the Act, it will be recom-
mended that Respondent cease and desist from infringing in any manner upon
the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Federal Labor Union No. 19981, AFL, 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 Fred
W. Hartswick , Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination and by interfering with , restraining , and coercing
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (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 omitted from publication in this volume.]
4 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 elsewhere,
which would not have been incurred but for the unlawful discrimination, and the conse-
quent necessity of his seeking employment elsewhere . Crossett Lumber Company, 8 NLRB
440 Monies received for work performed upon Federal , State, county , municipal , or other
work -relief projects shall be considered earnings Republic Steel Corporation v N. L. R. B„
311 U. S 7.
5 F. W. Woolworth Company, 90 NLRB 289.
HOWARD-COOPER CORPORATION
Appendix A
NOTICE TO ALL EMPLOYEES
891
Pursuant to the recommendations of a Trial Examiner 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 discourage membership of our employees in FEDERAL LABOR
UNION No. 19981, AFL, or in any other labor organization, by discriminating
in regard to their .hire and tenure of employment, or in any other manner
discriminating in regard to any other terms or conditions of employment.
WE WILL offer Fred W. Hartswick immediate and full reinstatement to his
former or substantially equivalent position without prejudice to any senior-
ity or other rights and privileges previously enjoyed, and make him whole
for any loss of pay suffered as a result of the discrimination against him.
WE WILL NOT because of their union membership, affiliation, and activities,
or in any manner interfere with, restrain, or coerce our employees in the
exercise of the right to self-organization, to form labor organizations, to join
or assist FEDERAL LABOR UNION No. 19981, AFL, or any other labor organi-
zation, 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, or to refrain from any or all of such
activities except to the extent that such right may be permitted by the pro-
visions of Section 8 (a) (3) of the Act.
All our employees are free to become, remain, or refrain from becoming or
remaining members of the above-named union or any other labor organization
except to the extent permitted by the provisions of Section 8 (a) (3) of the Act.
We will not discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employees because of membership in or
activity on behalf of any such labor organization.
TITAN METAL MANUFACTURING COMPANY,
Employer.
By --------------------------------------------
Dated --------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
I-JOWARD-COOPER CORPORATION and INTERNATIONAL ASSOCIATION OF
MACHINISTS, LOCAL LODGE 1468, AFL. Case No. X6-CA-217.
Jwiw 25,1952
Decision and Order
On December 19, 1951, Trial Examiner A. Bruce Hunt 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a brief.
99 NLRB ' No. 141.