Columbia Radiator Co.

National Labor Relations Board - Board Decisions

Jun 2, 1936

1 N.L.R.B. 847 (N.L.R.B. 1936)

In the Matter of COLUMBIA RADIATOR COMPANY and INTERNATIONAL
BROTHERHOOD OF FOUNDRY EMPLOYEES, LOCAL No. 79
Case No. C-66.-Decided June 2, 1936
Radiator and Boiler Industry-Unit Appropriate for Collectcve Bargaining:
eligibility for membership in only organization making bona fide effort at
collective bargaining; production employees-Representatives: proof of choice:
membership in union-Collective Bargaining: refusal to negotiate with repre-
sentatives - Strike - Dtsortntiination.: non-reinstatement following temporary
shut-down ; non-reinstatement following strike ; lockout-Reinstatement Or-
dered, None-Strikers-Reinstatement Ordered, Strikers: discrimination in rein-
statement ; strike provoked by employer's law violation ; displacement of em-
ployees hired during strike ; preferential list ordered, including.
Mr. Robert H. Kleeb for the Board.
Mr. J. P. Fife and Mr. Ralph H. Frank, of Pittsburgh, Pa., for
respondent.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
STATEMENT OF CASE
On Pebrual;y 5, 1936, Local No. 79, International Brotherhood of
Foundry Employees, hereinafter referred to as Local No. 79, filed
a charge with the Regional Director for the Sixth Region, charging
the Columbia Radiator Company, Versailles Township, Allegheny
County, Pennsylvania, hereinafter called the respondent, with hav-
ing committed unfair labor practices prohibited by the National
Labor Relations Act, approved July 5, 1935. A complaint and ac-
companying notice of hearing were issued by Clinton S. Golden, duly
designated agent of the National Labor Relations Board, on Feb-
ruary. 114, 1936, copies of which were duly served upon the respondent
and upon Local No. 79.
The` complaint charged the respondent with violations of Section
8, subdivisions (1), (3) and (5), of the National Labor Relations
Act; hereinafter called the Act. With respect to the violation of Sec-
tion 8, subdivisions (1) and (3), the complaint alleged that on Janu-
ary 7, 1936, the respondent had closed its plant; that on January
26 it issued cards to its employees recalling them to work; and that
such cards were not issued to the following employees and they were
subsequently refused employment : J. B. Hadden, President, Local
847
848 NATIONAL LABOR RELATIONS BOARD
No. 79, and John Winso, J. H. Nelson, J. McIntosh, Charles Reimen-
schneider,l John Goulding,2 and Robert Booth, all members of the
committee of Local No. 79. The violation of Section 8, subdivision
(5) of the Act was alleged to have occurred by reason of the fact
that on or about January 28, 1936, the respondent was requested
but refused to bargain collectively with the committee of Local No.
79 in regard to the terms and conditions of employment and the
reinstatement of the above-named individuals.
On February 21, 1936, the respondent filed a motion to dismiss the
complaint and an answer. The motion to dismiss was based on the
grounds that the Act is unconstitutional generally and also in its
particular application to the respondent's business, and that the alle-
gations of the complaint are so vague, general and indefinite that to
require the respondent to answer and defend would be to deprive
the respondent and its stockholders of liberty and property without
due process.
The answer denied the allegation that J. B. Hadden was not noti-
fied on January 26 to return to work, admits that the other named
employees were not notified to return to work, but denies they were
ever refused employment; alleges that a reduced force was to be
employed on January 28 and that the selection of the men-to-be
notified to return to work was left to the judgment of the foreman
in each department the foremen being instructed that in the selec-
tion of the men to be called back they should be guided only by
considerations of individual efficiency and should not discriminate
because of union affiliation. The answer also denied knowledge by
the respondent that Local No. 79 is the representative of its em-
ployees for collective bargaining and denied that it refused to bar-
gain collectively with Local No. 79 or any committee designated by
Local No. 79 on or about January 28, 1936.
Pursuant to the notice of hearing,, a hearing was held at Pitts-
burgh, Pennsylvania, February 24, 1936, before J. Warren Madden,
duly designated by the National Labor Relations Board to act as
Trial Examiner, at which hearing full opportunity to be heard, to ex-
amine and cross-examine witnesses and to introduce evidence bearing
on the issues was afforded both parties. The hearing was continued on
February 25, 26, 27 and March 12. At the opening of the hearing,
counsel for the respondent presented a motion to continue the hearing
for the purpose of allowing the respondent time to prepare its de-
fense adequately, and also renewed the motion to dismiss. Both
motions were denied by the Trial Examiner. The motion for a con-
tinuance and a motion to dismiss with the right to argue the motion
1 Incorrectly spelled Remminschneider in the complaint.
2 Incorrectly spelled Guiding in the complaint.
DECISIONS AND ORDERS 849
for dismissal were made by counsel when the Board rested its case.
These motions were also denied by the Trial Examiner. All rulings
of the Trial Examiner on motions, as well as his rulings on evidence,
are hereby affirmed.
Upon motion of counsel for the Board, the complaint was amended
at the hearing by striking the name of J. B. Hadden, President,
Local No. 79.
By order of March 27, 1936, and in accordance with Section 35,
Article II of the National Labor Relations Board Rules and Regu-
lations-Series 1, the proceeding was transferred to and continued
before the Board.
Upon the entire record now before it, including the pleadings, tran-
script of the evidence, exhibits introduced, and the brief of the
respondent, the National Labor Relations Board makes the
following :
FINDINGS OF FACT
1. The respondent, a corporation organized under and existing by
virtue of the laws of the State of Pennsylvania, has its principal
office in Versailles Township, Allegheny County, Pennsylvania, where
it owns and operates a manufacturing plant, hereinafter called the
plant, for the manufacture, distribution and sale of radiators and
boilers. The financial statement of the respondent issued on Jan-
uary 1, 1936 stated its assets to be $1,751,202.31; its net sales for
the year 1935, $1,447,160.35;, and its paid in surplus, $529,849.05.
A list of 625 persons considered employees by the respondent on
December 20, 1935, was received in evidence, although William H.
Watt, plant manager, estimated that the largest number of employees
at work at one time between June 1 and December 20, 1935, was
approximately 550. The payroll for shop employees in the year 1935
was approximately $500,000.
2. The plant occupies about 10 acres of ground, and is immediately
adjacent to the main line of the Baltimore & Ohio Railroad, the only
railroad serving the plant. Two spur lines or sidings which enter
into the walled or fenced enclosure of the plant and traverse, respec,
tively, the length and width of the plant, branch off from the main
line close to the plant. • Incoming and outgoing cars are placed upon
these sidings, for the purposes of loading and unloading, by a shift-
ing engine owned by the Baltimore & Ohio Railroad. The inside of
the plant is divided into the many departments necessary to produce
the finished radiators and boilers manufactured from iron and alloys,
each operation following the preceding one in orderly progression
to produce the finished products.
Incoming and outgoing materials are also conveyed to and from
the plant by 14 contract carriers by truck, all trucks loading or
850 NATIONAL LABOR RELATIONS BOARD
unloading going within the confines of the plant on the side of the
plant opposite the railroad entrance.
3. Raw materials used by the respondent in the manufacture of
radiators and boilers include pig-iron, limestone, sand, scrap-iron,
coke, paint and linseed oil. The respondent also purchases finished
products such as thermometers, asbestos, rods, valves, and boiler
jackets to be attached to or shipped with its radiators and boilers.
Pig-iron is secured from Pennsylvania; limestone from West Vir-
ginia; sand from New York and, according to the testimony of John
B. Nason, Jr., Vice-President of the respondent, also from Indiana
or Michigan; scrap-iron principally from Pennsylvania, though an
undetermined amount is secured outside the State of Pennsylvania ;
coke from Pennsylvania and West Virginia; linseed oil from Ohio;
thermometers, rods and valves from Pennsylvania; boiler jackets and
asbestos from Indiana. All paint used in the painting of radiators
and boilers is secured from the Crescent Paint Company, a corpora-
tion, whose paint shop is within the confines of the respondent's plant.
The Baltimore & Ohio Railroad carried 8,581,204 pounds of goods
shipped to the respondent in the month of November, 1935. Of this
amount 2,064,584 pounds or approximately 24% were intrastate ship-
ments, and 6,516,624 pounds or approximately 76% were interstate
shipments. Henry M. Wilson, chief clerk and cashier of the Balti-
more & Ohio Railroad at McKeesport, testified that the month of
November was an average month as to shipments.
John B. Nason, Jr., testified that 3,053,330 pounds of finished prod-
ucts were shipped from the plant in the month of November, 1935,
and that approximately twice as much material is shipped into the
plant as is shipped from it. On the basis of these figures it is ap=
parent that the Baltimore & Ohio Railroad carries practically all
incoming materials. We therefore find that approximately 7617o of
all incoming materials are shipped in interstate commerce.
4. The respondent maintains branch offices in Philadelphia, Penn-
sylvania; Boston, Massachusetts; Chicago, Illinois, and Newark, New
Jersey. In addition it maintains sales offices in Charlestown, Massa-
chusetts; Newark, New Jersey; Philadelphia, Pennsylvania, and Chi-
cago, Illinois. Both branch and sales offices are in reality warehouses,
products being shipped to them by the respondent on orders placed
for stocking the warehouses for the purpose of sale to customers in
the vicinity. A substantial amount of the radiators and boilers man-
ufactured by the respondent is sold to Sears, Roebuck & Company,
under a contract whereby the radiators are sold f. o. b. McKeesport
and are shipped according to instructions given by Sears, Roebuck &
Company. A majority of the shipments are arranged for by Sears,
Roebuck & Company, the balance by the respondent.
DECISIONS AND ORDERS 851
As previously stated Nason testified that in November, 1935, the
respondent shipped 3,053,330 pounds of finished products from the
plant. He also testified that more finished products are shipped out
by truck than by rail. 608,155 pounds of products consigned by the
respondent were carried by the Baltimore & Ohio Railroad in the
month of November, 1935; 29,976 pounds, or approximately 5%, in
intrastate commerce, and 578,179 pounds, or approximately 95%, in
interstate commerce. Figures submitted on behalf of the Continental
Freight Forwarding Company, a motor carrier operating in inter-
state transportation only, account for an additional 23,463 pounds
shipped out during the month of November, 1935. No other carriers
appeared at the hearing and Nason testified that he was unable to
state either the exact or an approximate percentage of the proportion
shipped out which was shipped in interstate commerce. He did tes-
tify that he believed more of the outbound shipments made by truck
are made within the State of Pennsylvania than outside of it. While
we are thus unable to determine exactly what percentage of the out-
going shipments move in interstate commerce, we find that a
substantial portion of them are shipped in interstate commerce.
5. The respondent, in addition to owning 50% of the stock of the
Crescent Paint Company, also controls through stock ownership the
Equitable Supply Company, Glendale, Long Island, New York, a
corporation existing under and by virtue of the laws of the State of
New York, and the Versailles Finance Company, McKeesport, Penn-
sylvania. The Equitable Supply Company both purchases from and
acts as a sales agent of the respondent. It acts as a jobber and is
not engaged in manufacturing. The Versailles Finance Company
discounts time notes given by home owners to heating contractors for
installations of the respondent's products. Although it finances other
projects, the business of the Versailles Finance Company is largely
limited to financing installations of radiators and boilers manufac-
tured by the respondent. The notes accepted for discount are not
confined to notes received for installations within the State of Penn-
sylvania. About 10% of the respondent's business is handled by
means of notes discounted by the Versailles Finance Company.
6. All of the aforesaid constitutes a continuous flow of trade, traffic
and commerce among the several States.
7. In June or July, 1933, a shop representation plan was put into
effect in the respondent's plant. The evidence does not show in what
manner this plan was instituted. No constitution or by-laws were
ever adopted. Under the plan the plant was divided into five depart-
ments, the employees in each department electing a committeeman to
represent them. The object of the plan and the selection of commit-
teemen was to have the five persons so elected meet with the manage-
ment of the respondent for the purpose of collective bargaining. In
852 NATIONAL LABOR RELATIONS BOARD
September, 1933, the committeemen, dissatisfied because of their fail-
ure to secure any concessions from the respondent, called a mass meet-
ing of all the employees. By unanimous vote, the employees decided
to join an outside organization, and money was appropriated from
the funds of the plant to secure a charter. Shortly thereafter appli-
cation for a charter was made to the International Brotherhood of
Foundry Employees. Pending the receipt of the charter a second
meeting was held, temporary officers were elected, and the shop repre-
sentation committee was instructed to notify the respondent of the
new organization. In conformity with the instructions, the committee
notified Dr. Theodore Nason, now deceased but at that time an official
of the respondent, that temporary officers had been elected in an out-
side organization, that the members of the shop representation com-
mittee had become members of this organization, and that the shop
representation committee intended to dissolve.
Before the charter for Local No. 79 had been received, some dis-
sension arose because of the desire of certain employees to affiliate
with another outside organization. About October 15, 1933, which
was about two weeks after the application for the charter had been
made, the shop committee, with the consent of the respondent, held
an election by secret ballot inside the plant to determine the choice
of a majority of the employees. Two hundred and seventy-eight
votes were cast, and 249 employees chose the International Brother-
hood of Foundry Employees. Some of the remaining 29 desired to
retain the shop representation plan, and the rest wished to join
another outside union.
At this time or shortly thereafter, the members of Local No. 79
elected the five committeemen under the shop representation plan as
a committee to act for Local No. 79 in collective bargaining with
the respondent.
The respondent alleged in its answer, and argued at the hearing
and in its brief, that in dealing thereafter with the committee it had
no knowledge that the committee was acting as a union committee
selected by the union members, but believed it was dealing with the
shop committee elected by all of its employees. We feel that reliance
on this fact, by the respondent, indicates a confusion as to the issues
involved. If the respondent failed to bargain collectively with the
representatives selected by a majority of its employees, it committed
an unfair labor practice, whether those representatives were a com-
mittee chosen by Local No. 79 or a committee elected under the shop
representation plan. There is no denial by the respondent that it
knew that its employees were members of some outside labor organ-
ization. Furthermore, the election in October, 1933, was held in the
plant with the consent of the respondent. In this connection, it is
DECISIONS AND ORDERS 853
pertinent to point out that when the committee -notified Dr. Nason
of the formation of an outside affiliation, Dr. Nason stated that the
respondent did not want anything to do with any outside organiza-
tion or union, asked who the officers of the organization were, and
on the following day discharged all three officers. These discrimina-
tory discharges were reported to the Pittsburgh Regional Labor
Board of the National Labor Board, and with its aid, all three of the
discharged employees were ultimately reinstated.
8. On January 3, 1934, when the plant reopened after the usual
shutdown for the Christmas holidays, the respondent announced a
wage cut. The employees refused to work on that day but returned
to work the following day upon the agreement of the Pittsburgh
Regional Labor Board to hold hearings on the case. Hearings and
conferences were held, but when no decision had been rendered by
April, a strike was called. This strike involved a wage dispute, the
reinstatement of George McBride, who had been discharged in
October, 1933, and recognition. The strike lasted two weeks, and
was settled when Local No. 79 accepted proposals made by the re-
spondent in a letter to Clinton S. Golden, then mediator for the
Pennsylvania Department of Labor and Industry. In the letter, the
respondent agreed to make certain wage adjustments, and announced
its "willingness . . . to recognize and deal with any committee
elected by our men as their representatives to adjust grievances and
handle questions relating to wages or working conditions; to refrain
from discriminating against any employee . . . engaging in Union
activities outside of working hours; ..." The letter did not men-
tion McBride, but he was reemployed. _
Although Local No. 79 was not mentioned by name in this letter,
it is clear that the respondent knew at this time that the shop rep-
resentation plan was defunct and that a new system of representation
had been put into effect.
9. After April, 1934, the respondent met at frequent intervals with
the committee of Local No. 79. The testimony shows that relations
between the committee and the respondent were amicable during this
period and that about 75% of the complaints and grievances dis-
cussed with the management were settled in favor of the employees.
A few days prior to July 31, 1935, a dispute arose concerning wages
to be paid to the nine men employed in the department where radi-
ators are cleaned. The respondent had placed a machine in the
department to replace the old method of hand cleaning and had an-
nounced a reduction in the piece rate from 91¢ per hundred for hand
cleaning to 50¢ per hundred for machine cleaning. Due to the
change in operations, the force of cleaners was to be reduced from
nine to five men, the five men retained to be selected on the basis of
854 NATIONAL LABOR RELATIONS BOARD
seniority. The men in the cleaning room were unwilling to accept
this cut in wages, although they did not apparently resist the reduc-
tion in the force. When they refused to work, the respondent sent
in five laborers from another department to operate the machine.
Upon the refusal of the laborers to replace the cleaning room force,
the respondent notified them that they were discharged. Thereupon,
the President of Local No. 79 called a stoppage, and every machine
and operation in the plant immediately stopped. The men remained
idle for two hours, then resumed operations upon the agreement of
the respondent to continue the use of the nine men at the prior hand
rate until mediators could be brought in to aid in reaching an agree-
ment.
An agreement was reached on July 31, and was embodied in a
memorandum signed by Golden, at this time Associate Director of
the Pittsburgh Regional Labor Board, and by Thomas M. Finn,
Commissioner of Conciliation of the United States Department of
Labor, who had acted as mediators in the dispute. The agreement
provided that the prior rate should be paid for an indefinite trial
period, during which time the machine was to be tested to determine
its capacity, and that, after the output of the machine had been defi-
nitely determined, a piece work rate would be established "through
conferences between Company officials and shop committee repre-
senting employees."
10. In October, 1935, a dispute arose concerning the wages of the
heat gang. Agairr almost instantly work throughout the entire
plant was suspended and was not resumed for two hours. The rec-
ord does not show in just what manner the return to work after the
two-hour shutdown was accomplished but the dispute was settled
with the aid of Edward McDonald, Commissioner of Conciliation of
the United States Department of Labor, and P. A. Ramsey, Pennsyl-
vania Department of Labor and Industry. A written agreement
was signed by John B. Nason, President of the respondent, and
Charles Reimenschneider, Chairman of the Shop Committee, and
was witnessed by the two Conciliators.
11. After the machine had been operated in the cleaning room for
21 or more consecutive days for one hour per day, the respondent
made a piece rate offer for radiator cleaning to the committee and
to the men in the cleaning room. Meetings were held on December
12 and December 18 in an attempt to reach an agreement on a rate.
On December 20, the plant again closed down for the Christmas
holidays, January 6 being set as the date for its reopening. On
December 23 and January 3 the committee and the management again
met to discuss the piece rate for machine cleaning. At this time,
the situation apparently was that the respondent at all times since
July had made only the one offer of 500 per hundred or 470 per hour.
DECISIONS AND ORDERS 855
On its part, the committee on December 18 demanded the retention
of the prior average hourly rate for a further trial period.
On January 6, 1936, the plant reopened but since the cleaning
room worked one day behind the production departments, the clean-
ing room men were not to report to work until January 7. Again
on January 6, the committee and the respondent met to discuss the
rate for the cleaning room, but no agreement was reached. The
cleaning room men reported to work at their usual time at 6 A.M.
on January 7. Watt, plant superintendent, walked over to the men
and asked them what they were going to do. Reimenschneider, a
member of the committee and employed in the cleaning room, stated
that the men did not want to return to work until some agreement
had been reached. Upon Reimenschneider's suggestion that they
hold another meeting, when the remaining members of the commit-
tee reported for work at 8 o'clock, the cleaning room men did not
start to work. The meeting was held but as neither side made any
further offers no agreement was reached. The testimony of Reimen-
schneider and of Watt varies somewhat as to what occurred imme-
diately after this meeting. Reimenschneider testified that the men
in the cleaning room started back to their department, but before
they reached it were ordered off the premises by Watt. He does not
state whether the men intended to go to work. Watt testified that
after the meeting the men "just walked off of the job." Sometime''
later in the same day, the respondent put notices on the bulletins''
boards reviewing the complete history of the cleaning room disp'u'te'',
and concluding, "As a result of this situation and the refusal of the
cleaning room men to go to work, operations in the foundries multi
be suspended until further notice."
12. On January 26, 1936, the respondent sent out cards to 550 per-
sons requesting them to report to work on January 28. Cards were
not sent to. the cleaning room employees, the five committeemen and
many other members of Local No. 79.
Watt and John B. Nason, Jr., testified that the plant was to be
reopened on less than a capacity basis, that the selection of the per-
sons to be recalled was left to the discretion of the foreman of each
department; that the foremen were instructed to choose the men
according to their individual efficiency; that the foremen had been
instructed not to discriminate because of union affiliations or activi-
ties; and that the men in the cleaning room had not been recalled
because they were considered to have quit by walking off the job on
January 7.
13. It seems apparent in the light of the facts already stated that
we cannot accept as true the respondent's contention that it did not
know that the committee with which it had been dealing was a union
97571-36-vol 1-55
856 NATIONAL LABOR RELATIONS BOARD
committee. In addition many other facts might be cited from the
record to show knowledge on the part of the respondent of the mem-
bership and extent of the union organization within the plant. For
example, there is evidence that sometime between January and April,
1934, Local No. 79 presented a proposed written agreement to Dr.
Theodore Nason and John B. Nason, Jr., which agreement men-
tioned Local No. 79 by name and asked for recognition; that some-
time after July 5, 1935, Winso, one of the committeemen, after a
meeting between the respondent and the committee, asked Watt how
Local No. 79 could secure recognition and was unofficially advised
by Watt to wait until the constitutionality of the National Labor
Relations Act had been determined; that Watt admitted to Winso
during the time of the cleaning room dispute that "You people are
organized well enough to shut this plant down in five minutes time";
and that Winso about two or three months before the hearing told
Watt that the union paid him for time lost in acting as a committee-
man. In addition to this direct knowledge on the part of Watt and
Nason, there is a great deal of evidence that many of the foremen
had been members of Local No. 79 before being promoted and knew
exactly which of the employees were members. Russell Eori, now a
foreman, was at one time a member of the committee of Local No. 79.
It was to these same foremen that the ultimate decision of which
employees should be recalled for work was left. There is no logical
explanation of the omission to call back the committeemen, the offi-
cers and many members of Local No. 79, except the determination of
the respondent to eliminate, if possible, the outstanding persons in
the union organization.3 In addition to alleging that the only reason
why certain persons did not receive cards was because they were not
considered to be the most efficient employees by their foremen, the
respondent points to the fact that many of their present foremen
were formerly union members and that Hadden, now President of
Local No. 79, was sent a card.4 The evidence shows that Hadden
was not elected President of Local No. 79 until the second week in
January, 1936, at the time the plant was shut down. It seems appar-
ent that he was called back only because the respondent did not know
of the change in officers at the time the selection was made. Many
3 The complaint as amended includes only six persons , each called a committeeman
The evidence shows that the Lommittee consisted of Winso, Nelson , McIntosh , Reimen-
schneider , and Goulding . Robert Booth , erroneously called a committeeman , was in fact
a sub-committeeman. It is not apparent why Charles Szvitih, Piesident of Local No. 79
from January 1, 1935, to January 1, 1936; George McBride, corresponding secretary of
Local No. 79; and Conrad and Caste, two other sub-committeemen who testified at the
hearing , were not included in the complaint The testimony shows that none of these
persons received cards to report to work on January 28.
4 At the time the charge was filed and the complaint issued Haddon had not received a
card to return to work and was therefore included in the complaint Prior to the hearing
a card postmarked January 26 , but misdirected , was delivered to him and his name was
stricken from the complaint by amendment
DECISIONS AND ORDERS 857
reasons other than a desire to favor union employees might be more
logically suggested for the selection of foremen. The plant was so
completely organized, it would have been practically impossible to
select employees to act as foremen, without choosing a member of
Local No. 79. Furthermore, promotion is a well known device to
eliminate union leaders.
As to the charges of inefficiency, no specific facts of inefficiency
regarding the individuals involved were alleged or testified to on
behalf of the respondent. Reimenschneider had been employed con-
tinuously since 1926, having also worked prior to that time for the-
respondent, and was the person selected to operate the machine in
the radiator cleaning room during its trial period. Winso had beery
employed by the respondent about six years and had never been laid
off except in periods of slack operation. Nelson had been employed
for some time prior to 1926 when he quit his job with the respondent.
to take what he considered a better position with the Holland Fur-
nace Company, but when he was laid off by the latter company be-
cause of slack work he immediately applied for and received reem-
ployment by the respondent and had worked constantly ever since.
He had never been laid off by the respondent except in slack periods
and had never been reprimanded for his workmanship. McIntosh
had been employed about 13 years, had never been discharged, had
been laid off only in slack periods, his work had never been criticized'
and he had never been reprimanded for any serious offense. Gould-
ing began working for the respondent in 1929; quit in 1930, to take
a job with the National Tube Company; was laid off by the Tube
Company because of slack work; was reemployed by the respondent
in 1931, and had worked steadily ever since. Robert Booth began
working in the boiler shakeout department in 1930. He had been
employed previous to that time in another department, but the
record does not show when his employment with the respondent
began. He had never been discharged or laid off by the respondent
and had never been criticized with regard to his work.
A general allegation of inefficiency, unsupported by any evidence,
is clearly insufficient to overcome the logical inference of discrimina-
tion because of union activities created because of the fact these,
men held prominent offices in Local No. 79 and had splendid service
records for long periods of time.
We conclude that the respondent discharged Winso, Nelson, Mc-
Bride, Goulding and Booth by failing to recall them to work on
January 26, and that they were discharged because of their union,
affiliations and activities. By such discharges, the respondent dis-
criminated in regard to hire and tenure of employment and thereby
discouraged membership in a labor organization.
858 NATIONAL LABOR RELATIONS BOARD
As to Reimenschneider, and the other employees of the radiator
cleaning room, the respondent insists that they ceased to be employees
by their own act of quitting on January 7. It is true these men did
not work on January 7 because of the failure to reach an agreement
concerning their wages. Assuming that they walked off the job, as
Watt contends, the effect was a strike because of the failure to reach
an agreement. If as the men themselves testify, they were ordered
off the premises, they were then locked out. It is undisputed that
the shutdown of the plant from January 7 to January 28, 1936, was
due to this same dispute. On either interpretation of the facts, these
nine employees, as well as all other persons who were employees on
January 7, were persons whose work had ceased as a consequence of
a current labor dispute and were therefore employees, within the
meaning of the Act,S on January 26 when the discharges occurred.
We conclude that Charles Reimenschneider was also an employee
who, by not being called back to work on January 26, was discharged
because of his union affiliations and activities, and that by so dis-
charging him, the respondent discriminated in regard to hire and
tenure of employment and thereby discouraged membership in a labor
organization.
The respondent attaches great significance to the fact that no proof
was offered by the Board to show that any one of the persons named
personally sought reemployment and was refused. Radell Cook, a
sub-committeeman who did not receive a card, testified that he at-
tempted to get into the plant on January 28 to ask for reemployment,
that Watt stopped him and asked if he had a card, saying, "You
are supposed to have a card." Even if the attitude of the respond-
ent had not been made entirely clear by the issuance of cards, this
testimony is sufficient to show that even if these men had asked for
reemployment they would have been refused. Furthermore, as here-
after set forth, a strike was called on the morning of January 28,
not only because of these discriminations but also because of the
wage dispute. For these men to have sought reemployment, after
the calling of the strike, would have been a desertion of the union
cause.
14. By these discriminatory discharges the respondent interfered
with, restrained and coerced its employees in the exercise of the right
to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing,