The Baldwin Locomotive Works

National Labor Relations Board - Board Decisions

Feb 29, 1940

20 N.L.R.B. 1100 (N.L.R.B. 1940)

In the Matter of THE BALDWIN LOCOMOTIVE WORKS and STEEL WORKERS ORGANIZING COMMITTEE Case No. C-491.-Decided February 29, 1940 Looomotive Manufacturing Industry-Employer: responsible for unfair labor practices committed while acting as debtor in possession in reorganization under Section 77B of Bankruptcy Act-Procedure: contention of denial of due process, without merit; full and fair hearing accorded ; conduct of Trial Exam- iner complained of, not prejudicial-Employee Status: supervisor , determination -of: right to hire and fire not an essential in ; contractors, assistant contractors, and certain working leaders , as-Interference , Restraint, and Coercion: espio- nage ; employment of detective agency to obtain information relating to union .activity and membership ; employer ordered to cease employing persons to investi- gate employees ' union activities ; -activities in connection with distribution of booklets vilifying and discrediting union-Company -Dominated Union: domina- tion of and interference with formation and administration of predecessor Asso- ciation and Foundries Association ; successor company-dominated union organized by employee representatives of predecessor Associations ; purpose to . deflect interest from outside union engaged in organizing drive; solicitation for mem- bership in by supervisory employees ; disestablishment of and abrogation of contract with , ordered-Discrimination.: discharges and lay-offs, for union mem- bership and activity ; for refusal to join and otherwise evidence interest in unaffiliated union, refusal to reinstate following lay-off ; charges of , in regard to hire and tenure, not sustained as to some employees ; discharge and refusal to reinstate for filing charges under Act; charges of, sustained as to one em- ployee, dismissed as to another-Reinstatement Ordered: employees discrimi- nated against to be offered immediate reinstatement-Back Pay: awarded employees discriminated against with deduction for State , Federal, or- municipal work relief and refund of such deduction to appropriate fiscal agent of such work-relief agency. Mr. Jerome I. Macht, Mr. Jack Davis, and Mr. Bernard Bralove, for the Board. Mr. Gilbert H. Montague, of New York City, for the respondent. Mr. M. H. Goldstein, of Philadelphia, Pa., for the S. W. O. C. Mr. Albert S. Herskowitz, of Philadelphia, Pa., for the Federation. Mr. Lester Asher, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Steel Workers Organizing Committee, herein called the S. W. O. C., the National 20 N. L. R. B., No. 104. 1100 THE BALDWIN LOOOMOTZVE -WORKS 1101. Labor Relations Board, herein called the Board, by the Regional Di- rector for the Fourth Region ( Philadelphia , Pennsylvania ), issued its complaint , dated December 21 , 1938, against The Baldwin Loco motive Works, Eddystone , Pennsylvania , herein called the respond- ent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and ( 3) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat . 449, herein called the Act. A copy of the -complaint , accompanied by notice of hearing , was duly served upon the respondent , the S . W. O. C., and the Federation of Baldwin Em- ployees, herein called the Federation , a labor organization alleged in the complaint to be dominated by.the respondent. With respect to the unfair labor practices, the complaint alleged,, in substance , that the respondent , on or about May 14 , 1937, organized. and interfered with the formation of the Federation and has since continued to dominate and interfere with the formation and adminis- tration thereof , that the respondent has contributed financial and other support to the Federation , and that by such action the respondent. has engaged in and is engaging in unfair labor practices within the, meaning of Section 8 ( 1) and ( 2) of the Act. The complaint also, alleged that the respondent discriminated against 16 named employees. with regard to hire and tenure of employment for the reason that. they joined and assisted the S. W. O. C. and engaged in concerted, activities for the purpose of collective bargaining and other mutual aid and protection , and that by such action the respondent has engaged in and is engaging in unfair labor practices within the meaning of' Section 8 (1) and (3) of'the Act. The complaint further alleged (1) that in or about May 1937 the respondent caused to be circulated. and distributed among and to its employees pamphlets entitled "Join- the C. I. O. and Build a Soviet America" and circulars entitled. "Claptrap Idiotic ' Orations"; (2) that from in or about May 1937 the- respondent did spy upon and observe certain meetings of the' S. W. O. C. for the purpose of learning which employees were and. axe interested in union activities ; ( 3) that since July 5, 1935, the- respondent has hired and utilized the services of many men as spies,, police, and guards with the intention and effect of interfering with,. restraining , and coercing its employees in the exercise of the rights, guaranteed in Section 7 of the Act; (4) that since in or about April 1937 the respondent has cautioned and advised its employees against, the S . W. O. C. and has threatened its employees with lay-off and. discharge from its employ if they became members of or assisted the; S. W. O. C.; ' ( 5) . that . since in .. or about . May 1937 the respondent has. discharged , laid off, and refused to reinstate certain of its employees, 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and has by other acts discriminated against certain of its employees for the reason that they joined and assisted the S. W. 0. C.; and (6) that the respondent, by all the aforesaid acts, and by other acts and means, has interfered with, restrained, and coerced, and is inter- fering with, restraining, and coercing its employees in the. exercise of the rights guaranteed in Section 7 of the Act and did thereby engage in and is thereby engaging in unfair labor practices within the meaning of Section 8' (1) of the Act. The 'respondent' filed 'a special 'appearance- ahd ,motion. to ,quash the complaint and dismiss the proceedings, dated December 27, 1938, in which it included the allegation, among others, that during the period between February 25, 1935, and September 23, 1938, the respondent was not in possession of any property or estate, and was not operating or managing any business, but that all of the respondent's property and estate were in possession of and operated and managed by The Baldwin Locomotive Works, as Debtor in possession; subject: to the authorization and control of the District Court of the United States for the Eastern District of Pennsylvania in a proceeding entitled "In the Matter of The Baldwin Locomotive Works, Debtor, In Proceed= ings for the Reorganization of a Corporation Under Section 77B of the Bankruptcy Act-No. 18519," and that none of the acts or omis- sions referred to in the complaint or the amended charge annexed thereto were acts or omissions of the respondent or are chargeable against the respondent. The respondent also filed a special appear- ance and motion, dated December 28, 1938, praying that the Board furnish certain particulars in respect of certain paragraphs of the complaint. In addition the respondent filed a special appearance and answer, dated December 29, 1938, in which, after reserving the re- spondent's rights with respect to the aforesaid motions and also with respect to numerous defenses and allegations which invoked the Con- stitution of the United States and the requirements of due process, in substance, it denied that it had engaged in any unfair labor- practices. Pursuant to notice, a hearing was held in Philadelphia, Pennsyl- vania, from January 3, 1939, up to and including May 27, 1939, before Robert N. Denham, the Trial Examiner duly designated by the Board. The Board, the respondent, the S. W. 0. C., and the Federation, which intervened at the hearing, were represented by counsel and partici- pated in the hearing. We find that full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the first day of the hearing, the Trial Examiner denied the respondent's motion to quash. His ruling is hereby affirmed. As THE BALDWIN LOCOMOTIVE WORKS 1103 set forth below, we hold the respondent's contention concerning the reorgani2ation proceeding under Section 77B of the Bankruptcy Act to be without merit. The respondent's motion praying that the Board furnish the re- spondent with particulars in respect to certain allegations of the complaint was denied by the Trial Examiner in these words : I am going to deny the motion but as I say, if at the conclusion of the Board's case respondent. feels that they have been prej- udiced by surprising material which they have not had an op- portunity either at this time or during the course of the hearing to investigate and meet, then I will entertain a motion for an opportunity to prepare to meet that. We hold that the complaint afforded a sufficient basis for apprising the respondent of the issues of fact it might be called upon to meet and that the Trial Examiner's suggestion offered a further safeguard to the respondent in the presentation' of its-ease. 'The ruling of the Trial Examiner, denying the request for particulars, is hereby affirmed. During the first day of the hearing, counsel for the respondent also moved to dismiss the complaint because of each and all of the grounds set forth in the special appearance and motion to quash, because of the, failure to grant the particulars requested in the special appearance and motion for particulars, because of each and all of the grounds- set forth in the special appearance and answer, and because of numer- ous other alleged irregularities in the pleadings and in the proceeding. .The Trial Examiner denied the motions to dismiss. Thereupon coun- sel for the respondent entered his general appearance for the purpose of defending on the answer dated December 29, 1938. On motion of counsel for the Board, certain allegations contained in the answer of the respondent. were thereafter stricken by the Trial Examiner on the ground, inter alia, that they were not.material to the issues raised by the complaint. These rulings of the Trial Examiner are hereby affirmed. On January 25, 1939, during the course of the afternoon session, the Trial Examiner excluded Albert S. Herskowitz, counsel for the Fed- eration, from participation in the hearing during the remainder of that day because of unseemly conduct in the hearing room. Hersko- witz thereupon left the hearing room and did not appear again at any time during the remainder -of the proceedings, nor did other counsel appear on behalf of the Federation. We find that the Trial 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner's action in excluding Herskowitz from further participation in the afternoon session of January 25, 1939, was justified.' At the close of the Board's case, on charges duly filed, counsel for the Board moved to amend the complaint to include an allegation that the respondent had engaged in unfair labor practices within the meaning of Section 8 (4) of the Act and to add the name of one employee alleged to have been discriminatorily discharged to the list contained in the complaint. The motion was granted by the Trial Examiner and his ruling is hereby affirmed.2 It was thereupon stipulated by counsel for the Board and counsel for the respondent that the answer filed by the respondent with reference to the original complaint stand as a pleading to the amended complaint and as a denial of all of its allegations. Thereafter counsel for the Board moved to amend the pleadings to conform to the proof. The motion was granted and the ruling is hereby affirmed. Motions were then made by the respondent's counsel to dismiss on all the grounds stated in the respondent's motions to dismiss at the outset of the hearing and on numerous other grounds. The motions were denied by the Trial Examiner. At the conclusion of the hearing, coun- sel for the respondent again moved to dismiss on all the grounds stated in the respondent's motions to dismiss at the outset of the hearing and also on other grounds. The Trial Examiner granted the motions to dismiss as to Louis Acenas,3 Frank Enzangio, Mike Merlino, and John 'Article II, Section 31, of National Labor Relations Board Rules and Regulations- Series 1, as amended , effective April 27, 1936 , as well as Series 2. effective July 14, 1939, provides : 'Contemptuous conduct at any hearing before a Trial Examiner or before the Board shall be ground for exclusion from the hearing ." See Matter of Weirton Steel Company and Steel Workers Organizing Committee , 8 N. L. R . B. 581. $ The Trial Examiner , in granting the motion to amend the complaint , stated : I shall grant the motion for leave to amend the complaint as the same has been made by counsel for the Board , but I shall at the same time permit counsel for the respondent to recall for further cross -examination such of the witnesses of the Board whose testimony has in any manner reflected a knowledge of any of the new matter injected into the issues as a result of this amendment, and in that way permit counsel for the respondent to pursue his cross-examination on these new subjects. If counsel for the respondent feels that this matter is of a surprising nature which will necessitate allowance of time for him to prepare to meet it , I will hear from him on that score. . . . The respondent did not request any delay nor the recall of any witnesses for the purpose of meeting the allegations contained in the amendment to the complaint. 8 In his Intermediate Report the Trial Examiner found that the dismissal of the com- plaint as to Louis Acenas had been premature . The Intermediate Report contains the following statement : Since the motion was made and granted after all testimony at the hearing had been concluded, and since none of the parties can, therefore, be prejudiced thereby, the ruling granting the motion to dismiss as to Louis Acenas is now reversed and the motion denied. . . . - Thereafter the Intermediate Report concludes that the respondent has discriminated in regard to the hire and tenure of employment of Louis Acenas. In view of the findings with regard to Acenas which are made below , we do not pass upon the question presented by the Trial Examiner 's reversal of his ruling. THE BALDWIN 'LOCOMOTIVE WORKS' 1105 Keenan , and denied all other motions to dismiss . None of the parties availed themselves of the opportunity afforded at the close of the entire hearing for filing briefs with the Trial Examiner and for oral argu- ment before the Trial Examiner . After the hearing had been con- cluded , certain corrections of errors ' made in transcribing the record were suggested by counsel and approved by the Trial Examiner. The record has been corrected on its face to conform thereto. Thereafter , the Trial Examiner filed his Intermediate Report, dated August 7, 1939, copies of which were duly served upon all the parties, finding that the respondent had engaged in unfair labor practices affect- ing commerce within the meaning of Section 8 ( 1), (2), (3), and (4) and Section 2 (6) and (7) of the Act, and recommending that the respond- ent cease and desist therefrom and take certain specified affirmative action to effectuate the policies of the Act. The Trial Examiner also recommended that the complaint be dismissed as to certain employees 4 whom the Examiner found not to have been discriminated against. Subsequently , the respondent filed a statement of exceptions to the Intermediate Report and to the record , together with a brief in support thereof . The Federation filed a document entitled "Statement of In- tervener 's Exceptions ," in which it adopted each and every exception contained in the statement of exceptions filed by the respondent. Pur- suant to notice served on the parties , a hearing for the purpose of oral argument was held on December 19, 1939, before the Board in Wash- ington , D. C. The respondent and the S. W. 0. C. were represented by counsel and participated in the argument. During the course of the 91 days of the hearing, the Trial Examiner made numerous rulings on motions and on objections to the admission of evidence . The Board has reviewed the rulings of the Trial Ex- aminer and finds that no prejudicial errors were committed . The rul- ings are hereby affirmed. In its statement of exceptions and brief, the respondent contends , among other things, that it was prejudiced by conduct of the Trial Examiner at the hearing, that the respondent was deprived of .its right to give testimony , and, in general , was denied due process of law and its right to a fair and impartial hearing. We have examined and reviewed the record of the instances at the hearing cited by the respondent in support of its contention . We are of the opinion that the respondent was afforded full opportunity to give evidence material to the issues , that it was not denied due process of law, and that it was accorded a full and fair hearing ; that the conduct com- plained of was not prejudicial to it. We are impressed that the Trial 4 The names of these employees are : Frank Enzangio , Mike Merlino , Joseph Krulikowsky, Edward F . Moran , John Keenan , and Steve Tzap. The Trial Examiner also recommended that the complaint be dismissed insofar as it alleged that the respondent discriminated against William O'Donnell with respect to his lay-off on January 24 , 1938. The Trial Examiner found, however, that the respondent had discriminated against O 'Donnell with respect to his earlier lay-off on June 9, 1937. 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner,was;.entirely fair: and that his-.conduct of the long hearing was commendable. The Board has considered the exceptions to the Intermediate Report and to the record, and the respondent's brief in support thereof, and in so far as the exceptions are inconsistent with the findings, conclu- sions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, The Baldwin Locomotive Works, is a corporation organized and existing under the laws of the State of Pennsylvania, with its principal offices and manufacturing plant at Eddystone, Penn- sylvania, a suburb of Philadelphia, where it engages in the manufac- ture and production of railroad locomotives for use on the railroad transportation system of the United States and other parts of the world. In connection with its locomotive plant at Eddystone, the respondent also maintains a foundry through which, in addition to obtaining its own requirements of castings of certain kinds, it supplies brass castings, propeller wheels, and other fittings to the shipbuilding industry of the United States. The respondent owns the entire capital stock of the following cor- porations : Baldwin-Southwark Corporation, Eddystone,' Pennsyl- vania, manufacturer of hydraulic turbines, hydraulic presses, Diesel engines, and refrigeration machinery; Standard Steel Works Com- pany, Burnham, Pennsylvania, manufacturer of steel forgings, steel castings, steel wheels, tires, and springs for locomotives, which it sup- plies to the respondent and also sells in the open market; Federal Steel Foundry Company, Chester, Pennsylvania, inactive; Cramp Brass and Iron Foundries Company, Philadelphia, Pennsylvania, a sales agent for foundry products; The Pelton Water Wheel Company, San Fran- cisco, California, manufacturer of water-power turbines, hydraulic valves, pumps, and other heavy machinery used in irrigation, water supply, and power-generation projects; De La Vergne Engine Com- pany, Philadelphia, Pennsylvania, a sales and field service company for Diesel engines; and I. P. Morris & De La Vergne, Inc., Philadelphia, Pennsylvania, inactive. The respondent also owns: 21.95 per cent of the issued and outstanding common capital stock of General Steel Castings Corporation, Eddystone, Pennsylvania, and Granite City, Illinois, a corporation organized primarily by concerns engaged in the manufacture of locomotives and railway rolling stock equipment' for the purpose of specializing in the production of steel frames for loco- motives and freight and passenger cars; 61.45 per cent of the issued and outstanding capital stock of The Midvale Company, Nicetown,. Penn- THE BALDWIN LOCOMOTIVE WORKS 1107 sylvaniai manufacturer of special steel forging, locomotive tires and weldless rings, steel castings, stainless steel and stainless iron, armor plate, and ordnance; and 91.95 per cent of the issued and outstanding capital stock of The Whitcomb Locomotive Company, Rochelle, Illi- nois, manufacturer of internal combustion locomotives. The Eddystone plant of the respondent, the only plant with which we are here concerned, comprises approximately 500 acres of land located on the Delaware River, midway between Philadelphia on the northeast and. Wilmington on the, southwest. It is occupied by a group of buildings, having an aggregate floor space of more than 100 acres, constructed and equipped for the building of locomotives and for carrying on the respondent's foundry business, including a stand- ard gauge railroad system having 26 miles of track. The plant is connected with the Washington Division of the Pennsylvania Rail- road, with the Baltimore & Ohio Railroad, and with the Reading Railroad. The plant of the Baldwin-Southwark Corporation is the only one of the subsidiaries which occupies space within the enclosure of the respondent's property at Eddystone. One of the plants of General Steel Castings Corporation adjoins that of the respondent at Eddystone. A.registration statement e filed by the respondent with the Securities and Exchange Commission on August 6, 1937, contains the following statement, in accordance with which we find that : 'The production of locomotives constitutes the major portion of the business of the registrant. Since the business was started in 1831 more than 62,000 locomotives have been built and delivered to the railroads of the world. For the ten-year period ending with 1930 sales of locomotives to domestic public service railroads averaged about $26,000,000 per annum. In addition, sales of locomotives to domestic industrial enterprises averaged about $1,000,000 annually. During this same period domestic sales of service parts and jobbing work averaged about $6,000,000 and foreign sales of all products averaged about $7,600,000 annually. The principal raw materials and commodities used in connection with the manufacture of the respondent's products include iron, steel, brass, bronze, aluminum, nickel, castings, forging, firebrick, gaskets, steam gauges, generators, boiler tubes, boilerplate, various manufac- tured accessories such as air compressors, air brakes, stokers; super- heaters, and tires, and many other articles. In 1937 the respondent purchased raw materials and commodities valued at approximately $12,000,000, about 50 per cent of which came from outside the State 5 The registration statement is dated August 4, 1937, bears the heading , "For Issuers .Reorganized in Insolvency Proceedings or which Have Succeeded to a Person in Insolvency Proceeding," and gives The Baldwin Locomotive works as the name of registrant. ' . 179 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Pennsylvania. During the same year the respondent sold locomo- tives valued at approximately $13,000,000, about 75 per cent of which were shipped outside the State. The respondent maintains district .sales offices in New York City, Chicago, St. Louis, San Francisco, and Portland, Oregon, and agents and representatives in numerous foreign ,countries. The respondent's pay roll is subject to extreme fluctuations, vary- ing with the amount of business on hand. In normal times in ex- -cess of 5,000 or 6,000 persons may be employed at the Eddystone plant on an hourly or piece-work basis. In May 1937 the total pay roll listed 3,963 employees, of whom 3,006 were engaged in the shops on an hourly or piece-work basis. In May 1938 the pay-roll figures howed a total employment of 3,309, with 2,458 employed in the shops. By November 1938 employment had dropped'to 1,203 persons, of whom 609 were working in the shops, while by January 1939 the respondent had less than 300 persons employed in its shops. II. THE ORGANIZATIONS INVOLVED The charges in this proceeding were filed by Steel Workers Organ- izing Committee for Lodge 1741 of the Amalgamated Association of Iron, Steel and Tin Workers of North America, herein called Lodge 1741. We find that both the S. W. O. C. and Lodge 1741 are labor organizations affiliated with the Congress of Industrial Organiza- tions.6 Lodge 1741 admits to membership employees of the respond- ent except those in supervisory capacities. The Federation of Baldwin Employees is an unaffiliated labor organization admitting to its membership all employees of the respondent except those holding official positions, with power to hire, discharge, or regulate wages. III. THE UNFAIR LABOR PRACTICES A. The responsibility of the respondent for acts of The Baldwin Locomotive Works, as Debtor in Possession On February 25, 1935, the respondent filed a petition in the District Court of the United States for the Eastern District of Pennsylvania, , While the record contains no detailed evidence relating to the structure and function of the S. W. O . C. and the Amalgamated Association of Iron, Steel and Tin Workers of North America , we have found upon numerous occasions in other cases , and the record as a whole in this case makes clear , that steel workers are organized into lodges of the Amal- gamated Association of Iron, Steel and Tin Workers of North America , which function under the S . W. O. C. The S. W . O. C. is a committee composed of representatives of a group of unions affiliated with the Congress of Industrial Organizations. See Matter of Bethlehem Steel Corporation, a Delaware Corporation , et al. and Steel Workers Organizing Committee , 1 4 N. L. it. B. 539; Matter of Republic Steel Corporation and Steel Work- ers Organizing Committee, 9 N. L. R. B . 219, enf 'd as mod ., Republic Steel Corporation v. N. L. R. B., 107 F. (2d) 472 (C. C. A. 3). F7 THE BALD 'Wliti L000ADOTIVE WORKS 1109 pursuant to a resolution of its board of directors, praying that the Court enter an order approving such petition as complying with the provisions of Section 77B of Chapter VIII of the Bankruptcy Act,' and further praying that the respondent be allowed to continue in possession of its property during the pendency of the proceedings on such petition, with authority to operate its business. On the same date, the Court entered an order approving the petition and author- izing the respondent, until further order of the Court, to continue in possession of its property and estate and ' operate and manage the business of the Debtor, including the making.^and performing of manufacturing contracts with power to assume and discharge obligations incident thereto, and main- tain the property and estate in the possession of or. owned by the Debtor both within and without the Eastern District of Penn- sylvania ; and to this end is authorized : to exercise all_ authority and franchises and discharge all obligatory duties; to collect and receive the income and -revemies of said property, estate' and business, including all outstanding accounts; to employ, discharge and fix ' the -compensation of all officers, attorneys, agents, accountants and employees, and to -pay said compensation' and all wages, due and to become due, .. -.--. all of the aforesaid to be done in the same manner that the Debtor would be entitled or bound to do in its own right, and to the extent necessary to carry out the aforesaid power and authority, all subject to such super- vision and control by this Court as this Court may exercise by further orders entered herein. In the course of the proceedings before the District Court, a plan of reorganization was proposed by the respondent and approved by the required proportion of creditors and security holders. In sub- stance the plan of reorganization provided for a rearrangement of the capital structure and for various changes in mortgage bonds and with respect to the exchange of the debtor's other securities. On Septem- ber 1, 1937, the plan of reorganization was confirmed by the Court. On September 23, 1938, the Court entered its final decree and order of discharge." 711 U. S. C. A. 207. 8 The pertinent provisions of the final decree of September 23, 1938, are as follows : 1. The Baldwin Locomotive works is hereby discharged and forever released from its debts and other liabilities, except such as are reserved by and provided for in the Debtor's Plan of Reorganization and except with respect to the matters which are specially men- tioned herein. 2. The Baldwin Locomotive works shall hold title to all its property, free and clear of and discharged from any and all encumbrances , lien, claims of creditors or other persons except as to any encumbrances , liens or claims preserved by the said Plan of Reorganiza- tion or incurred or assumed by the Debtor incident to its current business operations . . . 5. This Court reserves jurisdiction ( a) at a hearing or hearings to be held upon notice to the Debtor and to such other persons, and in such manner as this Court may direct, to 283031-41-vol. 20-71 1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As stated above, the respondent has contended throughout the pro- ceeding that it is not chargeable for alleged unfair labor. practices committed while it was debtor in possession under the Court's super-,- vision. In its statement of exceptions and brief, the respondent fur,_ ther contends that before any decision and order can be made by the Board against the respondent, the Board must obtain from the Dis-, trict Court an order interpreting the final decree dated September 23, 1938, and determining that the respondent is chargeable for unfair labor practices committed while under the Court's supervision. We find no merit in these contentions. In National Labor Relations Board v. Arthur L. Colten and Abe J. Colman, Co-Partners doing business as Kiddie Kover Manufacturing Company,° the United States Circuit Court of Appeals for the. Sixth Circuit stated : It is the employing: industry that is sought to, be regulated and brought within the corrective and remedial provisions of the Act in the interest of industrial peace ... It needs no demonstra- tion that the strife which is sought to be averted is no less an object of legislative solicitude when contract, death, or operation of law brings about change of ownership in the employing agency., We do not believe that in the instant case there was a change 'in the legal entity -involved. We find that the respondent has continued -the business of The Baldwin Locomotive Works unchanged in character, both as the corporation prior to the commencement of the reorganiza- tion proceedings and as the debtor in possession during their pend- ency.10 No interruptions occurred 'in ' the operations and, on the whole,. the supervisory personnel and supervision of the business re- mained the same. The change in financial structure resulted in no, material change in, the .employer-employee relationship. This rela- tionship is our.. chief consideration here, since it is all-important in_ effectuating the- purposes and,-policies of the,Act.11 We find that,, for, determine any issue which may arise in the interpretation of-any provision of this order; (b) to enforce , in such manner as this Court may determine , any of the directions con- tained in this order or in any order that shall hereafter be entered herein; ( c) to take any other proceedings or action which may be necessary or proper `in`order to consummate the Ilan and to effectuate its substance and intent ; ( d) in general , to determine any and all matters pertaining to these proceedings or to the Plan not determined heretofore or by., this order. 6. Subject to foregoing reservation of jurisdiction , these proceedings under Section 77B of the Federal Bankruptcy Act are terminated and finally closed. 8105 F. (2d) 179 (C. C. A. 6), enf'g. Matter of Arthur L. Cotten, et at. and Amalgam- ated Clothing Workers of America, 6 N. L. R. B. 355. rU The registration statement filed by the respondent with the Securities and Exchange Commission on August 6, 1937 (see footnote 5, supra ) contains the following assertion: "No material change is to be effected pursuant to the Plan in the general character of the business of the registrant and its subsidiaries." li See Matter of Weinberger Banana Co Inc., et al. and United Dock and Fruit Workers' Union, 18 N. L. R. B. 786. - THE. BALD`VIN LOGOIIOTSVE .WORKS 1111 the purposes of the Act, the respondent is responsible for. the unfair labor practices of The Baldwin Locomotive Works, ' as debtor in possession. B: *The respondent's managerial and administrative structure and per- sonnel; the respondent's responsibility for activities of supervisory employees Since in the course of events described below leading parts were played by certain of the respondent's employees for whose actions the respondent urges that it is not responsible, it is necessary at the outset to describe the respondent's administrative structure and personnel. From March 1929 until the end of September 1938, George H. Houston was president and directing head of the respondent.12 Until the early part of 1938, John P. Sykes was the respondent's senior vice president. Charles D. MacGillivray; vice president and secretary of the respondent, acted as Houston's confidential assistant.l3 From December 1936 until May 1, 1938, Charles B. Rose was acting work-- manager, in charge of the locomotive division, one of the two principal, divisions of the respondent's operations. Rose replaced Sykes as senior vice president in May 1938, his duties being enlarged to include supervision of various subsidiaries, and Walter E. Seymour was made works manager.14 The foundry division, the other main division of the respondent's plant, was under the direction of Norris H. Schwenk, general manager.- Both the works manager, who is in charge of the locomotive division, and the general manager of the foundry division reported directly to Houston, the- president. In the foundry division, John Schaffner is superintendent. The four departments in the foundry are : the iron foundry; the large brass foundry; the chipping and cleaning department, which serves the iron and large brass foundries; and the small brass foundry.- Each of these departments is headed by either a general foreman or a foreman. The operations of the locomotive division are divided into four service, departments and eight production departments. The service departments are : purchasing; materials, which includes the handling of stores, internal transportation; dispatching; and shipping; produc- tion engineering, which covers tool maintenance and supervision over the toolrooms; and plant engineering, which includes maintenance of buildings and grounds, operation of heating and power plants, and supervision of plant guards, police, and watchmen. On March 29,. 1937, Richard. W. Wuestbecame plant engineer and head of the plant " Upon Houston's resignation at the end of'Sej tember 1938, Charles E. Brinley, a direc- tor, was elected president. 'g MacGillivray ceased his connection with the respondent in the early part of 1939. 1}.B6th Rose-and Seymour ceased their connection with the respondent in the early part of 1939. 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. engineering department. During 1937 the personnel of the plant engi- neering department varied from a low of about 60 persons employed in the winter months to a high of about 300 persons employed for the summer maintenance program. Wuest's immediate superior is the works manager. Wilson W. Smock, general superintendent, has supervision over the eight departments or shops which engage in the actual production of locomotives." The works manager is also Smock's immediate superior. Each of the shops under Smock is headed by a general foreman. The works manager also has supervision 'over the personnel office which, until September 1936, was, headed by William H. Chestnut, personnel'. supervisor: During September- 1936, Walter A. Linn be-' came personnel supervisor, and Chestnut was .promoted to a position of the nature of industrial relations manager.16 The personnel office has charge of obtaining new employees, passes. upon all applicants for employment, and supervises the handling of compensation cases. - We find that Houston, Sykes; MacGillivray,: Rose, _Seymour, and Schwenk were officers or executives -of the respondent and guided its policies and operations; that Schaffner, Smock, and Wuest were high supervisory employees with 'control over the operations of large and important departments ; and that. Chestnut and Linn passed upon the. qualifications of applicants for' employment and had powers over initial hiring. We hold that the respondent is responsible for the, statements, con- duct; and activities of these men. Foremen and assistant foremen.Edward Lansberry was foreman of the chipping and cleaning department in the foundry. He had no assistant foremen working under him. In the locomotive production department; Leonard C. Ruber was general-foreman of the boiler;shop ; ., David N. Hughes was general foreman of Section D machine.shop ; Horace C. Sykes was general foreman of the erecting shop; and Charles Sigel was general foreman 'of the tender shop. During 1937 each of these general foremen had two or three assistant foremen under his supervision. The foremen and assistant foremen are carried on the salaried pay roll of the respondent. They have powers in con- nection with hiring and discharging, requisitioning workmen that-are to be put to work in the shop, determining. efficiency and ability rat- ings, and assigning work in the large 'shops which come under their supervisor." He testified -that "even the foreman ain't allowed to spondent responsible for their statements , conduct, and activities. 15 The following are the eight shops which make up the production department of the locomotive division : boiler ; pattern ; wheel ; smith ; Section C machine ; Section D ' ma chine ; erecting ; and tender. 11 Chestnut ceased his connection with the respondent in the latter part of 19?8. THE BALDWIN LOCOMOTIVE WORKS 1113 Contractors, assistant contractors, and working leaders.-In each of the.shaps of the locomotive. production department the work .is' sub- divided into groupings of" related operations which are designated as "contracts." Each contract is headed by a "contractor" who usually has one or more assistant contractors, and sometimes several working leaders, under his supervision. Depending upon the volume of work in the shop, a contractor will have from a few employees up to 300 or more employees working under him. The contractor and Inen under him are all paid on an hourly basis. However the contractor is paid a substantially higher rate. In defining the term "contractor," Charles B. Rose, the senior vice president, testified that it "is an old heritage of Baldwin." Origi- nally, many years prior to the hearing, the contractor was given a cer- tain amount of money with which to complete a particular piece of work. The contractor hired his own men, paid them at an hourly rate, worked them to his own advantage, and kept whatever profits he could make. During the period involved in this proceeding, the respondent continued to allocate a specific amount of money to pay for a particular piece of work done by a contract, but the profits of the contract, if any, were divided among all the men in the contract, in- cluding the contractor, according to their respective basic hourly rates. Employees generally considered the contractors, assistant contrac- tors, and leaders as "bosses" and so referred to them at the hearing. The organization charts of the respondent contain the names of the contractors and assistant contractors and indicate the total number, but not the- names, of men under their supervision. Contractors hold periodic meetings with the general foreman for whom they work; in the boiler shop the meetings occurring at least once a week. The dis- cussions at these meetings center around the quality of the work, the amount of production, and matters pertaining to new designs and specifications. Each contractor has his own desk, upon which there stands a sign telling the number of the contract and the name of the contractor. Gottlieb Koch, a contractor in the boiler shop, described his posi- tion in these words : "We are named contractor . . . but I would say supervisor." He testified that "even the foreman ain't allowed to come in my gang and give orders to my men. He comes and gives orders to me . . ." In regard to his son, Louis Koch, who is shown on the respondent's organization chart to have been the assistant contrac- tor during a large part of 1937,17 Gottlieb Koch stated, "I am responsi- ble direct and he is my assistant . . . He has to see that the work is 17 The organization chart which names Louis Koch as assistant contractor was issued May 22, 1937, and superseded December 4, 1937. During May and June 1937 Louis Koch had 23 men working under him. 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD done perfect, and if he has a job that nobody else can do, he has to do it himself." Gottlieb Koch admitted that as his assistants Louis Koch had to see that the work was distributed to each man-in the gang and that the men did the work properly. John Barrett, another contractor in the boiler shop, testified ' -that in June 1937 after the assistant foreman 'had told him that work was piling up and the number of men in the gang would have to be reduced, "then it was left to me to select the men who would not work for awhile .' .. I selected the men who were of least value to me at that time . . . After I had decided who the men were that were to be off forma, couple of days, I went along the line and told them as I passed them . . :" Philip O'Reilly, a third contractor in the boiler shop, and who during 1937 had as many as 125 men in his contract, testified that from time to time his men would ask him for raises. When asked if he ever gave any men a raise in pay if they were good workers, he answered : No. The only way I would have authority to give a raise in pay is to probably give them a little promotion from a helper to a leader, or something like that. If a man's ability was such, I would tell him at that time that the first opportunity I would have, I would give him an advancement. O'Reilly was another contractor who termed himself a "supervisor" and his assistant contractors as "assistant supervisors."' During May and June 1937, Daniel Cavan, a contractor in the tender shop, had as many as 370 to 380 employees working under him. With reference to lay-offs, Cavan testified that the foreman "comes along and tells you you got too many men. You got to cut your gang clown 20 percent. Give me a list of men you don't be able to use, men you haven't got work for. I will give him that list, and lie will lay them off." Cavan stated that his foreman had never turned down any recom- mendation which he made in regard to hiring a given worker. Leon- ard Ruber, general foreman of the boiler shop, testified that when an order is placed with the respondent, he first finds out what will be required as far as labor is concerned, "then we decide definitely the number of men we will need for this specific job . . . We let the con- tractor suggest the names." Albert Stickney, a contractor in the erecting shop, testified that the reason he had found it necessary to lay off one of the individuals with whom we shall deal more fully below was because ... the financial end of the job was bad. I was running in debt; I will say, one-hundred to two-hundred dollars a week, and they were at my neck all the time. THE BALD-WIN LOC0\IOTTVE- IV, ORKS, 1115 -When asked to explain what he meant by that statement, Stickiiey pointed out: Well, we have so much allotted for each locomotive,, and it is up to the contractor to see that he meets the payroll. 1Villiam Hewitt, another contractor in the erecting shop; similarly explained that the reason for a certain lay-off was that "it is up to me to meet my own payroll." 18 In regard to the, authority- of Robert Sweeney, a contractor in the tender shop, Charles Sigel, general fore- man, testified that: The alteration job was being finished by the end of that week, and Mr. Sweeney and I had a conference, and I decided that he should lay approximately twelve men off. Now my next question is : "Mr. Sweeney, what men are you ' going'to lay off?" • <. He being the contractor on the job he'decides just what men to lay off. I trust him fully in that job. If I didn't, he wouldn't be in that job. . . During 1937 Joseph Mahan was an assistant contiactor in the erect- ing shop, in a contract having 70 or 80 men.. Concerning his duties as an assistant to the contractor, Malian testified : Why, we laid the work out he (the contractor) did not have time to do. His attention was on finances or something else, and it would take him away from the shop, and I would look after anything that would turn up that was maybe holding another contractor up. Then, I would get a man to put on that job to do the certain job. Mahan used his contractor's desk, worked on plans and blueprints, distributed the work to the leaders and to the men, and d checked up on the different jobs to "see that they were done right." On all the evidence, we find that the respondent's contractors and assistant contractors are supervisory employees, represent the man- agement in dealing with ordinary workers, have substantial powers in connection with the hiring, discharging, and laying off of employees, have. power to assign and choose men for work, and have power to supervise and direct the work of employees. We find therefore that 18 Hewitt testified as 'follows : I am allotted so much money for a job, and I have a schedule to work by, and if I have a schedule to work by one week , I get a thousand dollars for the job, and then I get a schedule the next week , why, which only calls for $500; I have got to lay men off to suit myself, not being told about it, request the lay-offs to be made, that I can't meet my pay roll the next week with all my men in. . . . If I can 't do ten of them jobs that week on some of them engines, I can't use the men , and it is up to me to meet my own pay roll . . . 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent is responsible for the statements, conduct, and activi- ties of its contractors and assistant contractors. The respondent contends that contractors have a very .limited., and narrowly defined authority with respect to the other workmen in their contracts, and "have no authority to hire or discharge anybody, and at most can only recommend to the foremen the names of men in their contracts who might be hired or laid off ." We have heretofore held that the existence or non-existence of authority to hire or discharge -is not of itself determinative of the issue of whether or not the re- spondent is responsible for the activities of particular employees but is only one factor indicative of supervisory status.19 The fundamental criterion for the determination of an employee's status' as a supervisor is whether or not in the course of his duties he exercises the authority of management over the employees under him.20 The power. to recommend hiring or discharging is an important factor indicative of a considerable measure of control over employees. The respondent contends further that the position of the contractors is a temporary one and when it expires they cease to be contractors and resume their status as ordinary workmen. It is true that employ- ment in the respondent's plant is not constant for any of the em- ployees except the contractors, assistant contractors, leaders, and a few of the older men who are regarded as indispensable keymen in the organization. As work increases, former employees or new em- ployees are brought in, contracts are expanded and the assistant con- tractors and leaders are given augmented"-gangs" with which to work. As the amount of work decreases and workers are laid off, the as- sistant contractors and leaders may be put to work as ordinary work- men. At times of extremely slack work, as was the case in January 1939, whole contracts may be temporarily abandoned and the con- tractors themselves given work as ordinary workmen under other contractors. We are impressed that this practice of retaining con- tractors, assistant contractors, and leaders upon the pay roll as long as possible and of making all efforts to provide them with employ- ment in order that they may be available for reappointment to their former positions as soon as new work comes into the shops only em- 19 See International Association of Machinists , Tool and Die Makers Lodge No. 35, et al. v. N. L. R. B ., 110 F . ( 2d) 29 ( C. A. D. C. ), enf'g. Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No . 459, 8 N. L. R. B. 621 ; Swift d Company v. N. L, R . B., 106 F . ( 2d) 87 (C. C. A. 10), enf'g . as mod., Matter of Swift d Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 641, et al., 7 N . L. R. B. 269; American Manufacturing Company v. N. L. R. B ., 106 F . ( 2d) 61 (C. C. A. 2 ), enf'g. Matter of American Manufacturing Company et al . and Textile Workers Organizing Committee, C. 1. 0., 5 N. L. R. B. 443. 2O Matter of Humble Oil d Refining Company and Oil Workers International Union, Locals No. 333 and 316, 16 N. L . R. B. 112; Matter of Kelley 's Creek Colliery Co. and International Union, Progressive Mine Workers of America , 17 N. L. R. B. 506. THE BALD-WIN LOCOMOTIVE WORKS 1117 phasizes the closeness of their relationship. to the management. More- over, the testimony adduced with respect to the actual functioning of these individuals during the time when the events described below took place further discloses that the respondent is attempting, in the contentions which it advances, to limit the powers of these employees more than the actual practice justifies. We need not, for the purposes of this proceeding, decide whether or not all working leaders who rank directly under a contractor or assistant contractor are to be considered supervisory employees. With respect to four leaders, however, the record affords a basis for determination, and we turn briefly to the testimony. adduced in relation to this issue. Benjamin Hatfield was, after March 1937, a leader under Harry Cox, contractor in the boiler shop. During May and June 1937, the contract included about 120 workers. Hatfield had about 30 men in his gang. Cox testified as follows : .. . that was my job to see that everybody was working. But, I had Hatfield under me there. He was looking after the men. I had several other things to attend to. I couldn't attend to everything. He was an assistant. I left that entirely up to him, the majority of the time. Concerning the changes in.the work of the contract which occurred after he became a leader, Hatfield stated : You see, I have worked with these men, worked with all these men, and I knew what departments they could do, handle the best ability. Each person I would try to place at the proper place. Of course, Mr. Cox didn't know-he didn't know how to place these men. In 1937 John Deacon was a leader under William Hewitt. With reference to Deacon's powers, the following colloquy ensued while Deacon was on the witness stand : Q. (By Mr. MONTAGUE.) Did you ever in your discussions with Mr. Hewitt make any recommendations as to who should or should not be laid off in the gang in which you were working? A. No. The WITNESS. May I have that question again? Mr. MONTAGUE. Give me that question, Mr. Reporter. (Question read.) The WITNESS. Well, he usually left it to me, I knew who were the best men, and I kept the best men in case of a lay-off at all times here while I was leading.man, I am the man that had to get the work done and it was up to me to keep the best man that I had in my gang to cover my job. 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During 1937 Herbert Hitchner was also a leader under . Hewitt. He was in charge of the welders and supervised their work-, H6 reported to Hewitt as to the progress made. by the welding gang, and in his work he used Hewitt 's desk. When asked how the decision was made concerning which men were to be laid off in. a slack period, Hitchner answered : Mr. Hewitt would ask me ... say that he would have to, let some-men off, and then I would 'keep my best welders and lay the' others off. Organization charts of the respondent covering the period from and after May 1, 1937 , show John Kubeek as a leader of machine tool operators in the tool room, a section of the production engineer- ing department , which is a service department of, the locomotive division. The organization charts rank Kubeck as subordinate to one foreman and to the general foreman of the tool room. There are no contractors in the tool room. During May and June 1937 , Kubeck had over 50 men in his gang. Concerning his duties , Kubeck- testified as follows : If a fellow would lay down on the job and would not be any good to me, I would report him to the foreman . . . Lots of fel- lows who applied for a job claimed that they were machinists, lathe hands. You put them to work and they could not turn out the work. It was my duty to report it to the foreinn.n. Kubeck stated that it was his job to distribute the work to his gang and to see that it was done properly. When asked if he did any manual work himself, he answered : "When you have 40 or 60 men, you have not much of a chance to operate a machine yourself. All you can do is distribute the work and take care of the men." He admitted fur- ther that he could and did recommend men for employment. The views which we have expressed above with respect to the rela- tionship of 'authority to hire or discharge and the responsibility of the respondent for the activities of its contractors and assistant con- tractors, as well as our views in regard to the respondent's contention concerning the temporary nature of the positions involved, are equally applicable to the four leaders herein discussed. We find that Hatfield, Deacon, Hitchner, and Kubeck have sub- stantial powers to assign and direct work and to recommend and participate in the hiring and laying off of employees; represent the management in dealing with ordinary workers ; and are supervisory employees whose statements, activities, and conduct are binding upon the respondent. TrlE' BALDR'I_N- LocotNroTlvE- «%ORKS 1119 C. Interference, restraint, and coercion, The respondent has had no serious labor controversy at its Eddy; stone plant for more than 25 years. In 1911 the American Federation of Labor attempted to organize the plant, secured. a substantial mem- bership among the employees, and thereafter engaged in a strike. The strike was unsuccessful. Except for the pattern makers, who are members of an American Federation of Labor union, no other national union had at any time since 1911 maintained an organization in the plant. The S. W. O. C. started organizing in the respondent's Eddy- stone.plant in April 1937, and by the end of that month a substantial membership had been enrolled. Applications for membership in the Federation were circulated in the plant beginning about May 17, 1937. 1. The respondent's employment of Pinkerton's National Detective Agency, Inc. The respondent utilized the services of Pinkerton's National Detec- tive Agency, Inc., for many years. The respondent employed the Pinkerton Agency in 1935 and 1936, and in 1937, until the latter part of May. In 1935 .the respondent paid $13,154.81 to the Pinkerton Agency for services and expenses, and in 1936 the respondent paid $13,837.61 to the Agency. During 1937 the respondent's payments to the Pinkerton Agency exceeded $9,500. The last statement rendered by the Agency to the respondent is dated May 31, 1937, and covers services and expenses in connection with investigations carried on as late as May 20, 1937.21 Records of the Pinkerton Agency in many cases describe the services rendered to the respondent as investigations dealing with "communistic activity," "radical activities," and "radical tendencies." Thus, the journal sheet of the Agency dated May 7, 1936, states : Account of_______------- ------------ Baldwin Locomotive Works Operation ------------------- Radical Tendencies-Baldwin (Case 0 P) Information has come to the client that radical tendencies are developing among the employees of the various shops in the plant, particularly in section D, and it is desired that an investi- gation be taken up in this connection, to determine the extent of it and who are responsible. 21 The respondent paid this final statement on August 24, 1937, by a check payable to the order of S . L. Stiles. Stiles was a division manager for the Pinkerton Agency. Although all the statements rendered to the respondent during and after 1935 were on forms bearing the letterhead of the Pinkerton Agency, the respondent , in each instance , made payment by a check payable to the order of S. L. Stiles and endorsed by him alone. 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S. L. Stiles, manager of the Pinkerton Agency for the Philadelphia area , testified that the investigations made for the respondent covered various character cases. There was stealing, sabotage, radical . activities, labor union information, -were the. men satis- fied, were the foremen treating them fairly, and bootlegging in the plant, or foremen accepting money from the men. That is the general run. In describing the information obtained concerning labor unions, Stiles said , "My conception is that if our men did meet a union man they would report it." He admitted that investigations with respect ,to 'radical and communistic activities included reports of union activity and the names of union members. - In conducting its investigations, the Pinkerton Agency maintained operatives as employees in the Eddystone plant and also utilized the services of correspondents.22 Some of the Pinkerton operatives became members of labor organizations in the plant. The results of the investigations were reported daily by the Agency to William H. Chestnut. '23 Many of the Pinkerton reports were received by Chest- nut at his home. Chestnut digested the reports and turned his sum- maries over to John P. Sykes, senior vice president. Sykes, in turn, conferred with Houston, president of the respondent, concerning the contents of any Pinkerton reports which were of significance. Any written reports which Chestnut received from the Pinkerton Agency were immediately destroyed by him. Chestnut testified that the daily reports "contained everything. Safety, hazards, communistic propa- ganda, radical activities, labor matters generally." He admitted that the reports showed which men had joined labor organizations and what had happened at union meetings. Chestnut's own words are that talk of union activity "just simply ran through all these reports." Until May 1937 the respondent also utilized the services of the Pinkerton Agency for investigating applicants for employment. Chestnut gave the Pinkerton operatives the names of prospective employees who were to be investigated, and Chestnut received writ- ten reports of the information which was obtained. The investi- gations covered the applicant's general standing in the neighbor- hood, his previous employment record, and his church, fraternal, and labor organization affiliations. Chestnut was the sole judge of 2 An "operative" is a person in the regular employ of the Pinkerton Agency. A "corre- spondent" is one from whom information is purchased . Payments made to a correspondent are charged to the client as expenses. 23 As stated above, Chestnut was the respondent 's personnel supervisor until September 1936, when he became industrial relations manager. THE BALDWIN LOCOMOTIVE WORKS 1121 whether or not an applicant was satisfactory for employment. Linn, the personnel supervisor after September 1936, testified that he never received the investigation reports, that Chestnut would merely send him a statement recommending that the application for employment be accepted or rejected. About the end of April or the beginning of May 1937, Stiles noti- fied Chestnut that the Pinkerton Agency would no longer. supply industrial service having to do with espionage concerning labor activi- ties. Thereafter, the respondent dispensed with the services of the Agency.24 Houston, the respondent's president, insisted that "the employment of Pinkerton's was for the purpose of protecting our property." Employers do not customarily destroy the records and reports of agents who are concerned solely with protecting their prop- erty. In any event, Houston also testified "that the company discon- tinued the employment of Pinkerton solely because Pinkerton discon- tinued that type of service. The company did not stop it of its own volition." It is evident, however, that the Pinkerton Agency discon- tinued only that type of service which dealt with labor espionage. We find that the respondent employed Pinkerton's National Detec- tive Agency, Inc., for the purpose, inter alia, of obtaining informa- tion relating to the union membership and activity of its employees, and that "operatives" were placed in its plant to report on such activities. The respondent contends, with respect. to its hiring of the Pinker- ton Agency, that there is no showing that the employment of the detective agency ever had any effect upon the labor organizations at its plant or any of their members or upon the conduct of the respond- ent toward any of the labor organizations or their members, or that prior to the commencement of this proceeding any member of the labor organizations ever suspected or knew about any of the espio- nage./5 These contentions are without merit. In our view, surveil- lance of union organization constitutes an interference with the employees' right to self-organization, even though there is no showing that the specific information obtilined was used in'tbe commission of an unfair labor practice.26 24 Upon the recommendation of Stiles , the respondent , on May 24 , 1937, hired George T. Price to investigate applicants for employment . For 15 years before that time Price had been a Pinkerton Agency operative or correspondent . Price's employment with the respondent ended in June 1938. -',The respondent further contends that its employment of the Pinkerton Agency is not referred to in the amended charge. The function of the charge is to call the attention of the Board to the fact that certain unfair labor practices are alleged to have been committed- It is not essential that the charge describes the alleged unfair labor practices with the same particularity as the complaint. 2e Matter of Bethlehem Steel Corporation , a Delaware Corporation, et at. and Steel Work- era Orgaeiiziny Committee, .14 N. L . R. B. 539 ; Matter of Montgomery , Ward and Cona- pany • and'Warehouse Employees ' Union No. 20,297, affiliated with the A. F. of L ., 17 N. L_ R. B. 191. 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent, by employing Pinkerton's National Detective Agency, Inc., for the purpose, inter alia, of obtaining infor- mation relating to union activity and organization, has 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, and to-engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection. 2. The activities of Richard W. West In April 1937 Richard W. Wuest, the respondent's. plant. engineer, met Roland Price. Price, a former insurance broker in Philadelphia, was.then employed on the educational program of the Works Progress Administration at Marcus Hook, Pennsylvania. In addition, Price was doing some writing for a Marcus Hook newspaper, and was asso- ciated with Reverend Dr. Reginald Naugle in an effort to combat the activities of the S. W. O. C. and to establish a national independent labor organization. In connection` with the latter activities, Price, beginning in January 1937, attended labor organization meetings of every character in the Marcus Hook, Chester, and Eddystone area.y7 Immediately following their first meeting an apparently close rela- tionship grew up between Price and. Wuest. Price succeeded in obtaining employment in the respondent's plant ,for several men with whom he had been, associated in his W. P. A. work. At the end of April 1937, Richard W. Wuest introduced Price to his son Charles, a student at the University of Pennsylvania. Charles had with him at the time a booklet published by the Constitutional Educational League, New Haven, 'Connecticut, entitled "Join the C. I. O. and Help Build a Soviet America," and he and Price dis- cussed its contents. Charles showed, the booklet to his father- about the same time. This booklet is 61 pages of invective and castigation of the Committee for Industrial Organization 28 as either Comnuulist or Communist-controlled. The booklet warns that the ultimate pur- pose of the C. I. O. is to overthrow the government and ordered society as it is now known. _ About a week'later, Price called at Richard W. Wuest's home and asked Charles if lie would procure some of these booklets for him. Charles told him that he would be glad to do. it, and soon thereafter told his father about the matter. Charles sent in an order for 1,000 of 17 To many of these meetings, Price took along with him John Bell, a fellow employee on the W. P. A. educational project. On some occasions Price did not attend the meetings of the labor organizations with which he was concerned, but lie remained outside the meet- ing hall and jotted down the license numbers of all cars parked in the vicinity. . 28 Now the Congress of Industrial Organizations. THE BALDWI.N LOCOATOTIVE WORKS 1123 the booklets. A few days later, Price again stopped at Wuest's house and this time left two $50 bills with Charles. Price testified that he did not know the exact source of the two $50 bills; that he received the money in a sealed, blank envelope from an unknown person ; that ... A man simply asked for me and asked me some questions as to what my job was, and who I worked for, and whether I knew Reverend Naugle, and did I know anybody connected with the Minute Men. I said, "No." He said, "Well, here is an envelope." , He just handed it to me... Price said that he assumed that the money came from Dr. Naugle because he had previously told Dr. Naugle that he wanted to get some of the booklets. Several days before the booklets 'arrived in Philadelphia, Price told Richard W. Wuest that he intended to distribute them at the respond- ent's plant at Eddystone. Thereupon, to quote the words of Price, He (Richard W. Wuest) told me to keep off the property. He wanted to know what I was trying to do, start trouble, or any- thing like that . . . he told me, I might start some trouble down there, and be a little bit : careful ;- at least, keep off the property. When Wuest was asked whether at that time he knew that the re- spondent's employees were joining the S. W. O. C., he answered, "Absolutely; yes. They passed out leaflets every week." On May 20, 1937, Charles Wuest telephoned Price and told him that the booklets had arrived at the express office. Price replied that he would arrange to have them picked up. Thereupon Charles Wuest's connection with this incident ceased. On the next day, May 21, 1937, Price telephoned Richard W. Wuest and told him that he was sending two men over to his house to get the booklets. Price told Wuest to give the men whatever change remained after paying the express charges. While Wuest was having his lunch, John Bell and James Thomas, both employed on the W. P. A. educational program, called at Wuest's house. and announced that Price had sent them. Wuest questioned his wife about the money and shb told him that it was in a wallet in a desk drawer in Charles'-room. ' Wuest took the money and, accompanied by Bell, drove- over to the express office in his own car. Thomas, who was supposed to follow them in his car, lost his way. and went to the freight station.. At the express office Wuest paid the C. O. D. and express charges, which totaled $78.38, and signed a receipt, for the shipment.29 Bell then put the boxes of book- 2' The shipment , which consisted of two boxes , was consigned to Chas . B. wuest. 1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lets into Wuest's car, and they drove over to the freight station where they found Thomas. Bell and Thomas transferred the boxes to Thomas' car. Thereupon Wuest handed $4 to Bell and asked if that would be all right for an hour or an hour and a half's work. Bell replied that it would be and gave $2 to Thomas. Wuest put the remainder of the money in his pocket and -drove away. Although the boxes had not, up to this time, been opened, Wuest knew that they contained the booklets, "Join the C. I. 0. and Help -Build a. Soviet America." After leaving Wuest, Bell and Thomas drove to the W. P. A. project and located Price. Price tore off the shipping tags and opened the boxes. Thereafter, at about 4:30 p. m. on the same day, Bell and Thomas distributed the booklets to the employees of the respondent as they passed through the gates at the close of the shift. The Trial Examiner, in his Intermediate Report, found that "the, cost of 'obtaining and distributing the booklets was, in fact, defrayed by (Richard W.) Wuest with funds furnished by the respondent." 30 The Trial Examiner found further, however, that "whether the $100 was supplied by Wiliest or from some other source, is not controlling in determining whether a relationship existed between the respondent and the distribution of the booklets." Since we agree with the rea- soning of the, Trial Examiner and since we hold that Wuest's connection with the distribution of the booklets was direct,and sub- stantial and that the activities of bluest, the respondent's plant engineer, with respect to the distribution to its employees of booklets which necessarily engendered hostility and opposition to the S. W. 0. C. are attributable to the respondent, it is unnecessary for us to consider the additional point of whether or not the respondent's money paid for the booklets. We find that the respondent, through Richard W. Wuest, a person of high supervisory rank, gave active and tangible assistance to the distribution among its employees, on: May.21, 1937, of booklets which vilified and discredited the S. W. O. C. We find that by such activities the respondent has interfered with, restrained, and coerced its employees, in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bar- gain collectively through representatives of their own choosing, and 30 In substance the Trial Examiner 's finding is based upon the vague character of Wuest's testimony with respect to substantial sums of expense money which Wuest received from the respondent during May , June, and July , 1937. On May 17, 1937, Wuest received $298 in cash from the respondent upon a voucher , dated May 6, 1937, which , contains merely the explanation "incidental expenses ." The testimony of Wuest and of MacGillivray, who approved the voucher for payment , is not definite as to the nature of the expenditures represented by this voucher . In addition , Wuest, being in charge of properties of the respondent in Philadelphia , paid- gratuities to certain people to overlook infractions of city regulations and made other expenditures which were not disclosed in the -records of the respondent. THE BALDWIN L00'OMOTIVE WORKS' 1125 to engage in concerted activities for the purpose of collective bargain- ing and other mutual aid and protection.- . John Bell testified that an employee pass of the respondent for the quarter year commencing April 1937, made out in Bell's name, bear- ing the date May 25, 1937, and signed by R. W. Wuest, was given to him by Price so that Bell could gain entrance to union meetings of the respondent's employees. Bell was not an employee of the - re- spondent at the time he obtained this pass. Price did not recall any conversation with Bell in -regard to an employee pass and, when shown the pass at the hearing, stated that he had never seen it before. Wisest admitted that the signature on the pass was his, but he testified that he never knew that any pass had been issued to Bell and that he had no recollection of ever having seen the pass before.32 On June 7, 1937, Bell was employed by the respondent on the night shift in one of the machine shops. Bell was hired under these cir- cumstances : Price brought him to Wuest in an effort to secure a position as a guard; Wuest told them there was no opening among the guards; and then Wisest sent Bell over to the employment office. Bell testified that he was instructed by Price to obtain information about the union activities of the men working around him. Price denied that he ever asked Bell to report on any labor union activities while he was working for the respondent. Bell worked only one 'night, -and 'became -frightened, by the conduct of some of the men working near 'him. He received the impression that he had been recognized as a spy, and consequently he never reported for work again. Bell testified that a few days after June 7, 1937, Richard W. Wuest called at Bell's home and left with his daughter a note requesting him to attend a certain meeting of the S. W. O. C. and report to Wuest about it; that Bell attended the meeting, was denounced as a spy, was "pushed around"' by those present, and, as a result, had his glasses broken; that, a day or so later, Wuest called at Bell's home for a report of the meeting; that he told-Wuest that he would do no more spying and then demanded that something be done about his broken glasses; and that Wisest gave him $10 towards the repair of the glasses, at the same time making the explanation, I am not going to take it out of my pocket, this is a special fund I have from Baldwins that I am paying this money out of. O 'Hatter of Humble Oil & Refining Company and Oil Workers International Union, Locals No . 333 and 316, 16 N . L. It. B. 112; Matter of Republic Steel Corporation and Steel Workers Organizing Committee , 9 N. L. It. B . 219, enf'd as mod ., Republic Steel Corporation v. N. L. R. B ., 107 F. ( 2d) 472 (C. C. A. 3). e2 We deem it unnecessary to resolve this conflict of testimony since ' we hold that Bell's possession of the pass is of significance only as a background for his subsequent contacts with wisest, as described below. 283031-41-vol. 20-72 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wuest denied that he made any of the statements or did any of the acts testified to by Bell. Wuest testified that he was never at Bell's house, that he never sent him a note, that he never paid him any money to fix his glasses, and that he never spoke to Bell except in connection with his request for a job in the respondent's plant. The findings of fact made by the Trial Examiner, who had opportunity to observe the witnesses as they testified, adopt the testimony of Bell. After consideration of all the evidence, we credit the testimony of Bell concerning the above incidents and find the facts to be as set forth above in his testimony. We find that, by enlisting the aid of Bell to. engage in acts of espionage on its, employees and make reports to it, the respondent has interfered with, restrained, and coerced its employees in the exercise of the right to self-organization, to form, join, or assist labor organi- zations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection. D. Interference with and domination of the formation and adminis. tration of the Federation 1. The background and formation of the Federation In 1933, shortly after the passage of the National Industrial Re- covery Act, W. 0. Munroe, works manager, called together in the respondent's cafeteria the employees who were engaged in locomotive operations, and thereupon initiated the organization of the Baldwin Association, herein called the Association, a representation plan for all employees of the respondent, excluding those working in the foundry division. About the same time, Norris H. Schwenk, the general manager of the foundry division, assembled the foundry workers in the cafeteria, gave a talk to the men, and founded the Baldwin Foundries Association, herein called the Foundries Associa- tion, a representation plan for workers in the foundry division. The respondent paid for the printing of bylaws for the Associa- tion and for the Foundries Association. Except for the employees and_, the departments covered, the, bylaws were identical for both Associations. Each set of bylaws provided for a General Committee, composed, in the locomotive division, of one employee representative elected from each of 11 designated departments and shops, and, in the Foundries Association, of one employee representative elected from each of the 5 departments in the foundry division. Under the bylaws, the employee representatives were required .to be non-super- visory employees with a service record of at least.1 year in the re- spondent's employ, and who were 25 years of age and American, THE BALDM'_i1 LO COMO TIVE WORKS 1127 citizens. An employee representative was deemed to have vacated the office upon termination of his employment, transfer from one voting division to another, or upon his promotion to a supervisory position. Elections for employee representatives were held in 1933 and each year thereafter. The respondent furnished, at its own expense, all the ballots and materials used in the elections. Neither the Associa- tion nor the Foundries Association collected any dues or had any funds. The elections were, conducted during working hours by an employee who carried around it ballot box and handed a ballot to each worker. The act of voting automatically made an employee a member of the Association or the Foundries Association, and no formal applications of any kind were required for 'membership. Ap- proximately half of the employee representatives in 1937 were the same as the original representatives elected in 1933. The bylaws made no provision for meetings of employees, but provided for a monthly meeting of each of the General Committees. William H.. Chestnut, who as personnel supervisor up to 1936 and later as industrial relations manager received the reports which were furnished to the respondent by Pinkerton's National Detective Agency, Inc., as described above, sat in at all the meetings of the General Committees- and acted as secretary to both groups. Chestnut prepared the minutes of the meetings, had them run off on a duplicat- ing machine, and then distributed them to the executives of the re- spondent as well as to the members of the General Committee, with- out the contents of the minutes being submitted for approval to any member of the General Committee or to any subsequent meeting of the General Committee. Several days after its own meeting, the General Committee of the Association would, in accordance with its bylaws, hold a monthly meeting with representatives of the manage- ment, such as John P. Sykes, vice president, Charles B. Rose, acting works manager, or Wilson W. Smock, general superintendent of the locomotive division; while the General Committee of the Foundries Association would, after its own meeting and in accordance with its bylaws, meet each month with Schwenk and John P. Schaffner, super- intendent of- the foundry division, as representatives of the manage- ment. Chestnut also acted as secretary and took minutes of these meetings with the management, but no copies were furnished to the employee representatives. The meetings of the General Committees, either alone or, with the management, were held in the office building of the respondent and during business hours. Under the bylaws the respondent was required to "provide a suitable place for meeting of all committees." The employee representatives were paid for the time lost from work by their attendance at committee meetings. 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From the foregoing it is apparent, and we find, that the Associa- tion and the Foundries Association, having been initiated by the re- spondent, being subject to the respondent's control by reason of its power to discharge or transfer employee representatives who were repugnant to it, being supported by the respondent by the payment of all administrative expenses including election expenses and by the payment of representatives for time lost and by the provision for meeting space, were interfered with in, their formation and adminis- tration and were dominated and supported by the respondent.33 As noted above, the efforts of the S. W. O. C. to organize the re- spondent's plant were well under way by May 1937. On May 11, 1937, the General Committee of the Association held the last meeting of which Chestnut prepared minutes. Charles Weyand, the employee representative of the tool rooms from the beginning of the Associa- tion in 1933, was chairman of the General Committee. We find that Weyand was a working leader in the gear cutting and milling de- partment, had five or six men under his supervision, was a keyman in the tool-room organization, and was a minor supervisory employee of the respondent. Other employee representatives who attended the May 11 meeting of the.General Committee of the Association were: Joseph Mahan, an employee of 28 years standing with the respondent, a representative since 1935, an assistant contractor in the erecting shop, and, as we have concluded .above; a,supervisory employee for whose activities the respondent is responsible; George Hurt, boss foreman in one of the powerhouses of the plant-engineering depart- ment, with five or six men working under him, and an alternate representative in 1933; and Joseph Mulcahy, a representative since the beginning of the Association and the chief clerk and truck dis- patcher in the internal transport section of the materials department with authority over eight truck drivers who distribute materials throughout the plant, two mail-truck drivers, one ambulance driver, and one driver for the personnel department. We find that Hurt and Mulcahy were minor supervisory employees of the respondent. At this General Committee meeting inquiries' were.made by the em- ployee representatives as to the effect on the Association of the decisions of the Supreme Court of the United States affirming the constitutionality of the Act. 34 Chestnut told them that the Associa- tion was illegal and would have to be broken up. When the employee 83 Since the Association and the Foundries Association ceased their existence prior to the issuance of the complaint and since the complaint contained no allegations that the re- spondent dominated or interfered with the formation or the administration of these organi- zations , or contributed support to them , we shall not make any remedial order with respect to the Association and the Foundries Association. 84 N. L. R. B. v . Jones & Laughlin Steel Corporation, 301 U . S. 1 ; N. L . R. B. v. Pried- man-Harry Marks Clothing Co., 301 U . S. 58; The Associated Press v. N . L. R. B., 301 U. S. 103 ; Washington, Virginia and Maryland Coach Co. v. N. L. R . B., 301 U. S. 142. THE BALDWIN LOCOMOTIVE WORKS 1129 representatives thereupon asked about forming another labor organi- zation, Chestnut suggested that they consult with an attorney and mentioned the names of three firms.35 Included in Chestnut's list was J. H. Ward Hinkson, Chester, Pennsylvania, who had prior thereto organized-am :independent union among the employees of the Sun Shipbuilding and Dry Dock Company of Chester. Hinkson was local counsel for General Steel Castings Corporation, a corporation in part organized and controlled by the respondent. After Chestnut left the meeting the representatives continued to talk about forming a new .organization . We find that the impelling reasons which moti- vated the activities of the General Committee of the Association in forming a new organization are those stated by Joseph Mahan, assist- ant contractor and supervisor : We wanted something equal to what we already had, namely the Baldwin Association. We decided that this was the best we could get; we started to form this organization because we wanted to keep the C. I. O. out of the plant, that was the main reason. On May 13, 1937, Weyand, Mahan, Mulcahy, and Hurt conferred with Hinkson concerning the organization of the Federation. Hink- son was engaged to prepare the constitution and bylaws for the Federation and to advise the organizers in regard to setting up the new organization. Immediately following this conference with Hinkson, the same committee of four representatives drafted a form of application card for membership in the Federation and arranged for the printing of a number of them. The text of the application card was as follows : FEDERATION OF BALDWIN EMPLOYEES I the undersigned an employee of The B. L. W. make ap-' plication for membership in the Federation of Baldwin Employees and agree to observe and be bound by the Consti- tution and By-Laws of that Federation. Mulcahy paid for the printing of the application cards. On the same day, May 13, 1937, Schwenk and Schaffner, the gen- eral manager and the superintendent of the foundry division, respectively, called a special meeting of the General Committee of the Foundries Association and representatives of the management, at which the respondent submitted a proposed plan for vacation 35 The discussion concerning the constitutionality of the Act, the illegality of the Asso- ciation, the formation of another organization, or any of'the suggestions pertaining thereto are not referred to in the minutes of the May 11, 1937, meeting which Chestnut prepared. The minutes taken by Chestnut were as a rule complete only with respect to setting forth the demands which the General Committee wished to submit to the management. 1130 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD allowances. Directly after this. management meeting, the General Committee of the Foundries Association held its regular monthly meeting., According to the minutes prepared by Chestnut, no .business was transacted at this meeting of the employee representa- tives.36 We find, however, that during the meeting Chestnut in- formed the representatives that, the Foundries Association was illegal and would have to be discontinued. After the meeting had adjourned,- the representatives discussed the question of forlning a new organization. As to the nature and content of. this discussion, we credit the testimony of John Geiges, an employee representative of the Foundries Association, and find, . as he testified, that after the meeting of May 13, 1937, had adjourned: Why, we started to talk about the carrying on the Association, having the same men that was in it at present, and the one that really gave the most suggestions was John Wibberley. We didn't really have much time that day to really talk the full matter over. Wibberley had been an employee representative in the Foundries Association each year since 1934. On about May 15, 1937, Weyand, Mahan, Mulcahy, and Hurt saw Hinkson for the second time and showed him the application cards which they had had printed. Hinkson pointed out that the appli- cation cards did not mention the dues to be charged by the Federa- tion, and thereupon the committee of four representatives obtained a stamp and inserted at the top of each card the word and figures, "Dues 25¢." Hinkson advised the men to secure the signed appli- cations of a majority of the employees before holding the first meeting of the Federation. On May 17, 1937, or the next day, the distribution of the appli- cations for membership in the Federation was started. In regard to the success of the campaign to obtain signatures upon the appli- cation cards, Mulcahy, who was in charge of the distribution of the applications, testified that, "It took us a couple of days, and we had about 60 per cent signed up." We find in accordance with his testimony. The employee representatives of the Association and of the Foundries Association played an outstanding role in distributing the 80 The full minutes of the May 13, 1937, meeting are as follows : The regular monthly meeting of the Foundry Association was held on Thursday, May 13th. The meeting was called to order by Chairman Epstein at 4:00 P. M. The roll was called and disclosed the presence of the full Committee. The minutes of the previous meeting were unanimously approved without reading . There were no questions on rates of pay nor shop conditions that the Committee desired to take up with the Management. There being no further business before the Committee, upon motion duly made and seconded , the meeting adjourned at 4 : 30 P. M. W. H. CHESTNUT, Secretary. THE BALDWIN LOCOMOTIVE WORKS 1131 applications for membership in the Federation and in obtaining the signatures of the employees in their .departments. We adopt the testimony. of Mulcahy who stated that in the first instance the ap- plication cards "were distributed to the ones that was representing the Baldwin Association" and that a substantial number of the applications were given to each of the employee representatives "so that they- could further distribute them in the departments in which they worked." Thus Weyand, Mahan, Mulcahy, and Hurt, besides being the active organizers of the Federation and the leading par- ticipants.in the preliminary conferences and discussions, continued their. efforts, on behalf of the Federation by distributing applications for membership and soliciting signatures. We find that these activi- ties were carried on throughout the plant and in many instances during working hours. Clarence F. Barton, who in 1935 became an employee representative in the Association, distributed appli- cation cards to all the employees whom he represented. He testified as follows : "I got around these three shops, the spring rigging, the box shop and the wheel shop, that comes under one foreman. I got around those three shops." In the foundry division, John Wibberley distributed applications for membership in the Federation in his own department and also obtained a quantity of the applications for Charles H. Epstein, chairman of the General- Committee of the Foundries Association. Epstein kept the application cards in a cigar box on top of the place where tools were kept.. When John Geiges, another- employee representative in, the Foundries Asso- ciation, requested applications for the men in his department, Epstein pointed to the cigar box and said, "Go over there and help yourself." Supervisory employees for whose activities we have found the respondent to be responsible were also prominent in distributing the applications for membership in the Federation and in obtaining the signatures of employees working under them. John Barrett, a con- tractor in the boiler shop, during the noon lunch period called to his desk the men who were working under him and requested that they sign the applications for membership in the Federation. Barrett testified as follows : ... at noon time I asked these men to join this union. Some of them said they would think it over. Some of them sort of- they signed that card right there, and some of them returned the cards during the afternoon. When asked whether some of his men left their work to come over and-.sign the, application cards,, Barrett answered, -"Yes:.- Some of them started over for a while, and came back and signed, and some did not sign." Barrett in about 2 days succeeded in obtaining the signed applications of 20 of the 33 men working under him. Frank 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Doersch, an employee in Barrett's contract, testified that at the time Barrett called him up to the contractor's desk and requested that he sign an application for membership in the Federation, Barrett said, "Well; if you know what is good for your job, you will sign it." Barrett, denied that he used these. words,.,but testified, as follows: "I believe my words were, `Hey, wise up, and join a real union."' In view of Barrett's admitted statement and his activities in obtain- ing members for the Federation, we credit the testimony of Doersch and find that Barrett made the statement attributed to him. During working hours, Gottlieb Koch, another contractor in the boiler shop, was asked for permission to hold a meeting during the lunch period. Gottlieb Koch responded that "it was perfectly all right ... to have a meeting, but be back on the job when the whistle blew . . . " Concerning this meeting, we adopt the following testi- monyof Edward Quigley, a boilermaker in Gottlieb Koch's contract : Why, one day about ten o'clock in the morning, a fellow come to me and he said "How about you holding a meeting at noon time?" He said, "We are going to organize a union of our own." So, he said, "Would you talk to the men?" I said, "Sure." So, at noon time, after I ate my dinner, Lou Koch came to me-he was the one that told me the story first. So, when I was done eating my dinner, or just before, he said, "There is a whole gang over in the booth." There was a whole lot of men over there in that booth. I went over there, and there were 150 men in the booth. I started to talk to them. When I got done talking-while I was talking, Louis Koch handed me application cards. So,. I began to hand out these application cards to the men that was near me, and I gave some of the others some so they could distribute them. In the speech which he made to them, Quigley stated : . We are big enough to organize ourselves without somebody else coming in and doing it for us; we could be independent if we wanted to. As noted above, Louis Koch was an assistant contractor in his father's contract, had 23 men working under him, and was responsible for distributing the work and for seeing that it was done properly. We have found that the respondent is responsible for his statements, conduct, and activities. In addition to arranging this lunch-period THE BALDWVIN LOC0MIOTTVE WORKS .1133 meeting for the Federation and asking Quigley to talk to the men, Louis Koch made a speech himself.. His-testimony is 'as follows : ... I opened the meeting and told the men that we were think= ing about organizing aunion, and that if any of them wanted to join, why there was application cards around and they could sign up. - . I don't recall exactly my words. It took a little longer than that. I don't know what all I said. I asked them if any of them had any questions. There was no questions asked and none to be answered. In, the. erecting.. shop, Herbert Hitchner, a working- leader in, the erecting shop, was outstanding in his efforts to obtain signatures upon applications for membership in the Federation. He dis- tributed an application card to every one of the 25 men who worked under him and also furnished a supply of the cards to John Deacon, another leader in the erecting shop. Deacon testified that during the period in which the applications for membership in the Federation were being distributed, he saw as many as 20 application cards lying on the desk which was assigned to Hewitt, the contractor, but which was also used by Hitchner. Hitchner and Deacon turned over to Joseph Mahan the signed applications which they obtained. On the afternoon of Monday, May 17, 1937, the same day on which the distribution of application cards for membership in the Federa- tion was started, a joint meeting was held between the General Com- mittee of the Association and the management of the respondent, represented by Sykes, Rose, and Smock. Chestnut acted as secre- tary during the meeting. All the members of the General Committee were present, including Weyand, chairman, Mahan, Mulcahy, and Hurt. As the main business of the meeting, the -respondent sub- mitted a proposal for a week's vacation with pay during 1937. The proposal was accepted by the unanimous vote of the General Com= mittee of the Association.$' On the afternoon of May 20, 1937, the Thursday of the same week, a joint meeting was held between the General Committee of the Foundries Association, with Epstein, 87 The vacation proposal set forth that during 1937 the respondent would grant to each employee eligible therefor a vacation of one week , to be taken between May 1 and October 31, 1937 , with pay at his fixed hourly rate for 40 hours ' time . To be eligible for the week's vacation , the plan required that the employee be on an hourly rate or on piece work ; in the employment of the respondent for at least 650 full working days since January 1, 1931; and in the employment of the respondent continuously "during the 254 working days ( one year full time ) immediately prior to the time of taking such vacation," except for 2 weeks ' loss of time because of lack of work , sickness , or injury incurred at his work. The plan further provided for a 2-per cent vacation allowance in cash beginning Novem- her 1, 1937. On order of the employee and subject to his withdrawal, this allowance would be withheld by the respondent for a period not exceeding 12 months or deposited in a bank. Thereafter , during 1938 , each hourly rated or piece -work employee would be granted a week's leave of absence without pay. 1134 DECISIONS OF* NATIONAL LABOR RELATIONS BOARD chairman, Wibberley, Geiges; and the other employee representatives being present, and Schwenk and Schaffner representing the' manage- ment. The identical vacation proposal which had been accepted by the General Committee of the Association was submitted by Schwenk and Schaffner and unanimously agreed to by the General Committee of the Foundries Association. AS set forth below, a notice informing the employees of the' terms of the vacation plan was finally posted by the respondent on June,7; 1937. On Friday, May 21, 1937, Mulcahy determined that signed appli- cations for membership in the Federation had been obtained from .a .majority of the employees. At noon, Mulcahy met with Weyand and 'Mahan, and two other employee representatives whose names Mulcahy 'could not remember at the hearing, in the. office in which Mulcahy worked, the yardmaster's office. This meeting of employee "representatives decided to hold the first and organizational meeting of the Federation on the following Monday, May .24, 1937. 'The following leaflet was thereupon drafted : Don't Be Fooled By Claptrap Idiotic Orations Why Contribute Your Hard Earned Money to the Support of a Racket?. Are the C.. I. O. Leaders Your Type? Are Their Selfish Interests Your Interests? We Have Always Been Capable of Handling Our Own Affairs!! Lets Continue To Do So Now Come to Our Meeting Odd Fellows Hall 71st. & Woodland Ave. Phila. Pa. Join an independent Union of Baldwin Employees, who know your problems and how to handle them. Monday-May 24-8 P. M. FEDERATION OF BALDWIN EMPLOYEES. TH E ]BALDIVIN LOCOMO TIVE WORKS 1135 On the same day, May 21, 1937, the General Committee of the As- sociation held a special meeting in the office building of the respond- ent. The following resolution was adopted : WHEREAS, there are now functioning in the plant of The Bald- win Locomotive Works at least, two, independent labor organiza- tions, both 'of which. ostensibly propose to seek representation of all Baldwin employees for the purposes of collective bargaining; and . WHEREAS, the General Committee of The Baldwin Association has concluded that The Baldwin Association can, under the circumstances, no longer'- satisfactorily serve the Baldwin employees ; Now, THEREFORE, BE IT RESOLVED, That The Baldwin Association be , and the same hereby is, dissolved and disbanded, and that this General Committee cease activities and go out of existence as of this date; and . BE IT FURTHER RESOLVED, That the Chairman of the- Association be instructed to deliver a certified copy of this resolution to the officers of The Baldwin Locomotive Works forthwith. I hereby certify that the above and foregoing resolution was duly adopted by the General Committee of The Baldwin Asso- ciation at a special meeting of the General Committee held on May, 21, 1937,. at which meeting a quorum of the members was present and voting. CHARLES J. WEYAND, Chairman. With reference to the passage of this resolution, Charles Weyand, chairman of the meeting, testified as follows : At that special meeting, Mr. Chestnut brought that in and it was passed around to all of us and read, and it was agreed it was all right and I was requested to sign it, as chairman. We find the facts to be as set forth above in Weyand's testimony. Chestnut did not prepare any minutes of this May 21 meeting of the Association General Committee because, to quote his words, "The thing Was out the window. I let the resolution take care of it." On this same day the booklets "Join the C. I. O. and Help Build a Soviet America" were distributed to the employees of the respond- ent as they passed through the gates at the close of the shift. As set forth above the respondent's participation in this activity interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Also on the same day, William A. Siebrecht, Jr., president of the S. W. O. C. organization 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the respondent's plant, was.,laid -off because :of his-membership in and activity on behalf of the S. W. O. C. Our findings with respect to his lay-off are discussed in detail below. Mulcahy arranged and- paid for the printing of the leaflets an- nouncing the Federation meeting for Monday, May 24, 1937. He .received the leaflets from the printer on Sunday, and on Monday morning he brought them down to his office in the respondent's plant. We find the facts concerning the manner in which these leaflets were --distributed to be as set forth in the following testimony of Mulcahy: I gave some to the truck drivers and told them the various shops, when they were going around delivering or picking up, to hand out the pamphlets . . . Theones that I was sending them to knew what to do with them ... I sent them to each of the repre- sentatives of the old association ... When asked how long it took for the leaflets to get into the hands of the various representatives throughout the shops, Mulcahy answered : Well, it may have taken as high as two hours, because when I gave them to the truck drivers they had instructions who they were to give them to, and.I also knew what jobs were to be hauled throughout the plant, and if I had a truck going to the boiler shop, I gave them pamphlets and told him to give them to the representative there when he went to the boiler shop. There was to be no special trip made around the plant just to distribute the pamphlets. At the meeting of the Federation on May 24, George Hurt acted as temporary chairman. Mulcahy paid $10 for the rental of the hall. Gottlieb Koch, John Heenan, Philip O'Reilly, James Lynam, Elmer Hemberger, Daniel Cavan, Harry Cox, and John Barrett, all con- tractors, attended this first meeting of the Federation, and occupied seats in the front rows. John Kubeck, a leader in the tool room with over 50 men working under him, participated in the nomination of temporary officers. In addition to those contractors who attended the May 24 meeting, Albert Stickney, William Hewitt, Robert Sweeney, and other con- tractors also joined the Federation. Out of a total of 44 38 contractors in the respondent's plant, 27, or 61 per cent, became members of the Federation. Every one of the nine contractors in the boiler shop joined the Federation. We credit the testimony of John Barrett and accordingly find that after -he had paid his dues, he received his Federation membership and dues card from C. W. Trestrail, the Federation's financial secre- 89 This figure covers the period from April 30 to October 31, 1937. THE BALDWIN L000M1OTIVE W'ORKS 1137 tary and the clerk of the boiler shop, under the following circum- stances : I had business in the office at that time. I was in there on some business and as I passed the desk, Mr. Trestrail said, "Here is your card." Barrett and the men in his contract paid their Federation dues to Trestrail in the office of the boiler shop-",' during working hours. When asked whether his men left their work for long periods of time for the purpose of paving Federation clues to Trestrail, Barrett answered : Well, it is just'a matter ofabout three miiiutes•to go down there, at the most from where my job is . . . I couldn't answer as to how long some of them took. Barrett wore a Federation button while at work. He recalled that one of the employees in his contract, Louis Betz, had distributed Federa- tion buttons while the men were "doing their regular work." In the erecting shop, the men who worked under Hitchner, a working leader, paid their Federation dues to him during working hours and received their Federation membership and dues cards and buttons from him during working hours. When asked whether Hewitt, the., contractor, knew that these.^,activities were being.,carried: on in the plant, Hitchner replied, "Well, I surmise he did." Hitchner testified that he delivered Hewitt's Federation button to him during a lunch period. John Deacon, another leader in the erecting shop, also received Federation dues during working hours from the men whom he supervised. He would then turn the money over to Joseph Mahan, the erecting-shop representative of the Federation, or to Hitchner. At a meeting on June 22, 1937, the Federation voted to reimburse Mulcahy for the advances which he had made in connection with the printing of the membership application cards and the leaflets an- nouncing the May 24 meeting and in connection with the rental of the meeting hall. On July 12, 1937, the Federation adopted a con- stitution and set of bylaws. The constitution created a board of directors, composed of the officers, to "direct the policy of the Fed- eration" and also provided that each shop or department should elect a representative annually. However, the duties of the representa- tives were not mentioned. The constitution contained the following clause: "At no time shall a Contractor hold office of Director or representative." ^ In addition to Trestrail 's desk , this office contained the.desks of the assistant foremen of the boiler shop. 1138 DECISIONS OF„ NATIONAL LABOR RELATIONS BOARD -. On July 16, 1937, John Wibberley, a former representative in the Foundries Association, was elected president of the Federation. At a meeting on September 13, 1937, the Federation voted to pay the bill for $250 rendered by J. H. Ward Hinkson for legal services during the period beginning May 13 and ending July 30, 1937. On November 1, 1937, the board of directors of the Federation named Joseph Mahan, an assistant contractor and a former representative in the Association, to finish an unexpired term as vice president. On July 8, 1938, Louis Koch, an assistant contractor, was elected president and Joseph Mahan third vice president of the Federation. 2. The demands for recognition as bargaining agent and the contract of October 2, 1937, and the amendment thereto Early in June 1937, a Federation committee called at the offices of the respondent, informed Houston and Rose of the formation of. the Federation, and requested exclusive recognition. Louis Koch; an assistant contractor, and Elmer Hemberger, a contractor; were included among the members of the Federation committee. The executives of the respondent advisedi the Federation f to put its, demand in writing. Thereafter Hinkson prepared a letter, dated' June 4, 1937, and signed by the temporary president'of the Federation rind presented to the respondent on the same day, which advised that. the Federation represented a majority of the employees employed on an, hourly or piece-work basis and requested recognition as the exclusive bargaining agency and a conference for the purpose . of negotiating- a written agreement. On June 5, 1937, Houston addressed a reply. to the temporary president of the Federation in which he stated that the respondent would recognize the Federation as the exclusive representative of its shop employees if and when the Federation would establish, to the satisfaction of the respondent, the fact that it represented a majority of such employees. Following the receipt of Houston's letter `of June 5, Hinkson advised the temporary officers, of the Federation that in order to meet the requirement of satisfactory proof of majority which Hous- ton had advanced, a conference should be held with the Board's representatives in Philadelphia "to pass upon the factual situation." On June .7, 1937,- Hinkson and several members of the Federation. conferred with a representative of the Board for the Fourth Region.. The representatives of the Federation were advised that charges had been filed by the S. W. O. C. alleging that the respondent had dis- criminated against certain employees for the reason that they joined and assisted the S. W. O. C. . .THE BALDWIN LOCOMOTIVE' WORKS' 1139.. On June 7, 1937, a notice of the respondent's vacation policy was posted throughout the locomotive division. The notice was over the name of C. B. Rose, works manager. The opening sentence of the notice was as follows : As a result of collective bargaining with the representatives of the workmen the following plan for granting vacations to hourly rated and piece work employees was agreed to' under date of May 17, 1937. The notice thereupon set forth in full the proposal with respect to vacations which had been approved by the General Committee of the Association on May 17, 1937, and by the General Committee of the Foundries Association on May 20, 1937.90 On.June 9, 1937, upon the filing of amended charges by the S. W. O. C., the Regional Director for the Fourth Region notified the. respondent that the S. W. O. C. had filed charges which included the allegation that the respondent had dominated and interfered with the formation of the Federation. - On June 12, 1937, a• confer- ence was held at the Board's offices in Philadelphia which was at- tended by Hinkson and several members of the Federation, 'as' well as by Houston and Rose on behalf of the respondent. The purpose of.tlie: Federation and of the representatives of the management in holding the meeting, was to arr`a'nge, if possible, for the holding of'a consent election or the use of' some other method for designating the Federation as the' representative of the employees. At the June 12 conference, the Federation and the respondent were advised that until the charges, alleging that the respondent had interfered with the formation- of the Federation and had discriminated against certain of its employees for the reason that they joined. the S. W. O. C., were disposed of it would not be possible to conduct a consent election. Thereafter the Federation took no further' steps to obtain recognition as the exclusive bargaining agent for the employees of the respondent until. the latter part of September 1937. On September 22, 1937, John Wibberley, president of the""Federa- tion, forwarded to Houston, the respondent's president, a letter which had been prepared by Hinkson and which renewed.the demand that the Federation be recognized as the. exclusive representative of the respondent's employyees.: Wibberley's letter further demanded that such `recognition be accorded to the Federation on or before Sep- tember 28, 1937. On September .24,- 1937, Wibberley and Hinkson conferred.with Houston, Rose, and Fred Knight of the firm of Mor- gan, Lewis, and Bockius; general' counsel. for the respondent. At.. this meeting it was decided that since the Board would not conduct 40 For the substance of this vacation plan see footnote 37, supra. 1140 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD an election to determine whether or not the Federation represented a majority of employees, Albert D. MacDade, judge of the Court of Common Pleas, Delaware County, Pennsylvania, would be requested to compare the membership cards of the Federation With the -pay roll of the respondent and certify his findings. By a letter dated September 28, 1937, Houston responded to Wibberley's demand of September 22 and outlined the decision which had been reached at the September 24 meeting to allow Judge MacDade to conduct an investigation of the Federation's membership claims. On September 29, 1937, the membership cards of the Federation and, the pay-roll records of the respondent were compared.in Judge MacDade's court- room. The stenographic= record of. the proceedings 'before' Judge MacDade reveals that Judge MacDade made the statement, "This is a personal matter, not a matter being disposed of in my judicial capacity as judge ...," and that Judge MacDade Was not advised of the fact that charges had been filed with the Board alleging that the respondent had dominated the formation and administration of the Federation.41 On the same day on which the.comparison was made, Judge MacDade signed, and delivered to the respondent and to,,the Federation, a statement certifying that the Federation represented a 'majority of the employees of the respondent. Thereupon Hinkson drafted a proposed:.writteli -agreement,.which^ he delivered to Wibber ley for submission to the respondent. A memorandum signed by Rose, Houston, and MacGillivray, and dated October 1, 1937, reads in part as follows: On Thursday, September 30th, at about 11: 00 a. m., Mr. John Wibberley, President of the Federation of Baldwin Employees, telephoned; to Mr. MacGillivray; - Secretary. of the, Company; to ask for a meeting with Mr. Houston that day, to discuss the request for recognition contained in his letter.to the Company, dated September 22nd. n The stenographic record of the proceedings before Judge MacDade at Media, Pennsyl- vania, on September 29, 1937, contains the following colloquy : Judge MACDADE. Is there any agency provided by the Government to govern these matters? Mr. HLNKSON. There is the Labor Board. Judge MACDADE. By the United States Government I mean. Mr. HINKSON. It is vested with power to do it. However, I have personally made application to the board as long as three, four and five months ago without success. Judge MACDADE. The Wagner Act is not obligatory? Mr. HINKSON. Not at all. Judge MACDADE. You made application to them for attention and action. Mr. HINKsoN. And not having sufficient interest they neglected to do so. Judge MACDADE. That is the reason at the present time you have presented it here? Mr. HINKSON. Yes, sir. THE BALDWIN LOCOMOTIVE WORKS 1141 Mr. MacGillivray stated to Mr. Wibberley that the officers of the Company would be available at 2:30 p. in. to meet him and any other members of his organization whom he might want to bring along, at the time indicated. Pursuant to this arrangement, a meeting was held at 2: 30 p. in. on September 30th, in the conference room on the eighth floor of the Eddystone office building. Mr. Wibberley stated that the Union desired to be recognized by the Company as the sole agent for collective bargaining of hourly rated and piece work employees of Locomotive Division and Foundries Division, and asked that this recognition be ef- fected through the execution of a formal agreement between the Union and the Company. - A discussion thereupon ensued as to the substance of such an agreement, which was followed by a detailed consideration of the last draft of an agreement of this character negotiated with the Steel Workers Organizing Committee for the Baldwin-South- wark Shop at Eddystone, which draft of agreement was recently delivered by the Company to the Steel Workers Organizing Com- mittee as an indication of what The Baldwin-Southwark Cor- poration was prepared to sign. After full consideration of this draft and the viewpoint of the representatives of the Union with respect to it, it was agreed that an agreement would be drafted to incorporate the pro- visions tentatively agreed upon. This agreement to be appli- cable to the employees of Locomotive Division and Foundries Division of Baldwin, exclusive of hourly rated office employees, plant guard and pattern shop employees. We find, in addition to the facts set forth in the above memorandum, that at this meeting of September 30, Wibberley presented to the respondent the written agreement which had been drafted by Hink- son. With respect to the rejection by the respondent of this contract proposed by the Federation, Houston testified as follows : the Federation came in ' with a draft of agreement, and I looked it over, and I found that it involved many variations from our existing practice as to hours and working conditions, and the classification of labor, and I took the position with the Federation that we had one property at Eddystone in which there were two companies operating, Southwark and Baldwin; we were interested in the neighboring property of General Steel, and we just couldn't have a lot of different working conditions; 283031-41-vol. 20-73 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD So, I said, we couldn't accept the contract they proposed with all of those variations, and I came back with a counter- proposition. We had been negotiating for quite a while with the CIO in the Southwark organization for an agreement. We were agreed with them on all points with the exception of a clause in the recognition paragraph. I said, "Now, you take this, because this confirms our existing practices, and you tell us wherein it isn't satisfactory to you." Then I added to that the classifications of work and the wage rate schedules that would apply to Baldwin's, which would be quite different from those of Southwark and a considerable volume of detail provisions with respect to the hours of work and working conditions of such departments as power plant and cafeteria, which had to be very carefully worked out so as to fit iii with the operating schedules of the plant. I also attached to the contract our established definition of classifications of workers which had been established in our internal operations for a long time. I said, "Consider those and tell me wherein they are not satisfactory." So the Federation accepted that viewpoint and came back with some criticism which we reconciled by negotiations and then redrafted that draft of contract into one which was finally executed. Now, that was the procedure, as I recall it, out of which grew this contract of October 2nd. The minutes of the Federation disclose that at about this time the draft of a written agreement was discussed at a special meeting of the board of directors of the Federation. The minutes of this special meeting do not set forth either the date of the meeting or any state- ment as to whether the contract under discussion was the one pre- pared by Hinkson or a subsequent proposal drafted by the respond- ent, but do reveal that the board of directors empowered "the president and the recording secretary to sign contract designating the Federation of Baldwin Employees to be collective bargaining agent for its members with the Baldwin Locomotive Works." Tres- trail, financial secretary of the. Federation, objected to this action by the board of directors for the reason, as stated in the minutes, that he "questioned the right of the board to proceed in this matter without a motion from the floor of the Federation." We find, in accordance with the testimony of two members of the board of direc- tors, that Wibberley "did not go into detail" with respect to the THE BALDWIN L0G0MOTIVE WORKS 1143 provisions of the contract which he brought up for discussion at the special meeting , but "read some parts of it, the highlights of it; that was all." On October 1, 1937, a meeting was held in Philadelphia between Wibberley, one or two other members, and Hinkson, on behalf of the Federation, and Houston, Rose, MacGillivray, and Knight, repre- senting the respondent. Hinkson had not been told of the confer- ence of the previous day or of the rejection by the respondent of the contract which he had prepared. Houston opened the meeting on October 1 with the statement : "Gentlemen, for reasons I explained about the agreement you have submitted, the agreement is not ac- ceptable," and thereupon presented a draft of the agreement which the respondent was proposing. We adopt the following testimony of Hinkson concerning this meeting in Philadelphia : When I went there it was, as I thought, to negotiate the con- tract I had prepared, which was a very different one from that. Howevver, that contract, had already been submitted . . to my people-and I think they had had some preliminary negotiations with the company's representatives, and during the time between that date when we prepared the agreement for them and the time we met, evidently Baldwin's had prepared their own .. . The contract proposed by the respondent was considered at this Philadelplii t conference and certain minor changes were agreed upon. Overnight the respondent had the contract rewritten and on the next day, October 2, 1937, the contract was signed by Wibberley and Harry Evers, recording secretary, for the Federation, and by Houston and MacGillivray for the respondent.. Hinkson was not present"when the contract was executed, and Wibberley and Evers signed it without submitting it to the Federation attorney, board of directors, or membership. The-contract of October 2 granted to the Federation recognition as the sole collective bargaining agency "for all employees of Loco- motive Division and Foundries Division of the Company employed at an hourly rate or upon piece work (excluding, however, office employees employed at an hourly rate, plant guard employees and Pattern Shop employees) ..." Concerning the terms of the con- tract, Houston testified as follows : ... this was a peculiar contract in that there was no change in any of these labor classifications, or wage rates for classifica- tions from- what was the existing practice at the time. It was only a confirmation in writing of what was,current ... 1144 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD In regard to wages, the contract established a schedule of minimum hourly wage rates for all classifications of work.42 We find, in accordance with the testimony of Trestrail, clerk of the boiler shop, that the minimum hourly wage rates established by the contract were substantially lower than the minimum rates which were being paid to boiler shop employees at the time of the execution of the contract. When questioned with respect to Trestrail's testimony, Houston ex- plained that the actual minimum in the boiler shop might very well be higher than the minimum set forth in the contract for the par- ticular classification of work since the contract established the mini- mum pay for the entire locomotive division. Houston said, "What the actual minimum might be in a given department as compared with the minimum in the entire plant for that particular classification may be a very different thing." With reference to seniority, the con- tract in substance set forth the rules which had existed prior to October 2; 43 while with respect to vacations the contract reiterated the plan which had been accepted by the General Committees of the Association and the Foundries Association during May 1937 44 The term of the contract was stated as "a period of six months and there- after until terminated by either party on sixty days' written notice to the other." During the life of the contract, the Federation agreed on behalf of itself and its members that there will be no strikes, stoppages of work, picketing, boycotts, or other strike activities except for a violation of the provisions of this agreement the correction of which has not been effected by the Company after reasonable notice. 42 For the classifications of work covered by the heading " Working Foreman , Gang Boss, Contractor , Assistant Contractor or Leader ," the contract does not set forth any minimum rates but provides that the wage rates are "to be fixed by the Company by agreement with the employee in each instance ." The contract defines the classification " Working Fore- man, Gang Boss , Contractor , Assistant Contractor or Leader" as follows : Any such person is in supervisory charge of a gang or group of workmen. He may also be engaged for all or a part of his time in manual work . He must be capable of performing any of the mechanical operations normally carried on by the workmen under his supervision and be competent to instruct such workmen in the performance of their tasks . He must be able readily to read orders , drawings , and specifications ; to interpret them accurately and properly to the workmen under his supervision ; and to keep the records required of him. We are of the opinion that these provisions of the contract confirm our findings that con- tractors , assistant contractors , and certain leaders are supervisory employees for whose statements , conduct , and activities the respondent is responsible. 98 The contract provision covering , seniority reads : For the purpose of layoffs , employees with the longest service shall be laid off last and shall be rehired first , where the factors of training, skill, efficiency , ability, physi- cal fitness , family status and place of residence are relatively equal . Similarly, em- ployees shall be advanced to better paying operations on the basis of seniority where the aforesaid factors are relatively equal. The Company shall be the judge of these factors. When asked whether seniority in the manner described in the contract had existed prior to the date of the agreement , Rose answered : " Generally , yes, and seniority dates from the date of the last hiring of the man." See footnote 37, supra. THE BALDWIN LOCOMOTIVE WORKS 1145 The contract between the respondent and the Federation was sub- mitted to the membership of the Federation at a meeting held on October 11, 1937. The minutes of that meeting reveal that a motion was adopted that "the contract be filed and recorded." The minutes of a meeting of the board of directors of the Federa- tion, held on January 3, 1938, contain the following passage : It was then brought before the board by Mr. Trestrail of men being paid under the scale specified in contract. A committee of three were appointed by the president John Wibberley, namely Joseph Mahan, Harold Kelly, and himself to take this matter up with the management. The contract of October 2 provided that the minimum wage rate for should be 48 cents an hour during the first 8 weeks ofIt "laborer" 41 employment and 54 cents an hour thereafter. Trestrail, being the boiler shop clerk and having access to the pay-roll records, discovered that 10 or 12 old employees, with 40 or more years of service with the respondent, were doing janitor and laborer's work but were being paid less than the minimum wage provided for in the contract. On February 7, 1938, eight members of the board of directors of the Federation conferred with Rose and MacGillivray concerning this failure to meet the minimum wage requirements of the contract. The representatives of the Federation were advised that the em- ployees in question had outlived their usefulness to the respondent and had reached an age where they could not give the respondent a full day's work in competition with younger men; that the respond- ent was not willing to pay these employees the minimum wage rate; and that unless the Federation agreed to amend the contract to allow the respondent to continue its practice of paying these old employees less than the minimum rate, the employees in question would be discharged. The records of the Federation contain the following memorandum concerning this conference of February 7: Tuesday 2/7/38 at a meeting of the management and the Board of Directors of the Federation, said meeting being com- posed of Mr. Rose and Mr. MacGillivray representing the man- agement and the Board having present Messrs. Wibberley, Tres- trail, Kelly, Dooly, Mallany, Evers, O'Donnell and Mahan the following motion was made by Mr. Trestrail and seconded by Mr. Mullany : to wit that President Wibberley and Secretary Evers be empowered to sign the supplement to the agreement '6 Defined in the contract as follows : A laborer is an unskilled workman assigned to an unskilled laboring activity , includ- ing the handling of materials , janitor service , and other duties. 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between the management and the Federation, said officers repre- senting the Federation. Thereupon the respondent prepared an amendment to the contract of October 2, 1937, which Wibberley and Evers, without consulting an attorney or the membership of the Federation, signed on February 14, 1938. The amendment provided that the schedule of minimum hourly wage rates be supplemented by the following : In those cases where unskilled men, unable to do heavy manual work because of physical disability, are employed in the classi- fication of "Laborer" as sweepers, or on similar light work, the Company shall be entitled to employ such men at in hourly wage rate less than the rate established for laborers. In those cases where young men ambitious for advancement to higher positions and who are sufficiently intelligent to be de- veloped into skilled mechanics, are employed in the classification of "Laborer" as rivet heaters, the Company shall be entitled to employ such men at an hourly wage rate less than the rate established for laborers. The signed amendment to the contract between the Federation and the respondent was submitted to the membership of the Federation at a meeting held on the evening of February 14. The minutes of that meeting include the following statement : The secretary then read a supplement to the agreement which after a little discussion was accepted and ordered filed .. . On May 20, 1938, Houston addressed a letter to Wibberley, as president of the Federation, in which he called attention to "a con- tract provision for "periodical meetings" between .the respondent and the directors of the Federation and concluded, "I believe it would be very constructive to have meetings of this character say once a month." The provision in the contract of October 2, 1937, to which Houston referred reads as follows : Periodical meetings shall be held between the Board of Direc- tors of the Union and representatives of the Company to dis- cuss and deal with any grievance or other matters requiring attention 46 Thereafter the board of directors of the Federation met with repre- sentatives of the respondent on July 5, July 12, and August 16, 1938, and also held a regular meeting during each of the subsequent months of 1938. 40 As noted above, the bylaws of the Association and of the Foundries Association pro- vided for meetings at regular intervals between the respondent and the General Committees "for the discussion and consideration of working conditions and other matters of interest to the members of the Association." THE BALDwl \ LOCOMOTIVE WORKS 1147 3. Conclusions with respect to the Federation We have already found that the Association and the Foundries Association were interfered with in their formation and adminis- tration and were dominated and supported by the respondent. In his Intermediate Report the Trial Examiner found that the Federa- tion was an outgrowth of the Association and Foundries Association and subject to the same employer domination , interference , and sup- port. We concur in that finding . It is clear that the Federation was formed by individuals who had been employee representatives in the Association . These representatives were elected under the by- laws of an organization which had been dominated and supported by the respondent for several years. They took the first steps in con- nection with the formation of the Federation in response to a state- ment by Chestnut, the respondent 's industrial relations manager, that the Association was not legal under the Act. The respondent made no announcement to its employees generally of the fact. that the Association and the Foundries Association were not legal under the Act . Nor did the respondent make any an- nouncement to its employees that it intended to abide by the Act in the future and to forsake the policy it had followed for several years of dominating and supporting the labor organizations it had originally brought into being. Under these circumstances , the em- ployees, when . solicited to join the Federation by men who had been elected as employee representatives on General Committees which the employees knew to be favored by the respondent, could not feel free to join or not join as they desired . Furthermore , the respondent continued to hold joint meetings with these General Committee's even after Chestnut had notified them of their illegality under the Act. The respondent held meetings with the employee representatives and submitted a vacation proposal for their approval during the same week that these representatives were soliciting the employees to join the Federation . Not until the Federation had secured the signatures of a majority of the employees upon applications for membership did the respondent deem it wise to have the employee representatives dissolve the organization which they represented and which they knew to be incapable of serving as a collective bargaining agency under the Act . The primary purpose which inspired the creation of the Federation was the desire to keep the S. W. 0. C . out of the respondent 's plant , and to continue the same kind of a company- influenced "inside" organization as had previously existed . The re- spondent 's utilization of labor spies and its connection with the distribution to its employees of the "Join the C. I. 0. and Help Build a Soviet America" booklets were designed to accomplish the same purpose. 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In their task of organizing the Federation and soliciting the em- ployees to join it, the employee representatives were aided by the activities of contractors, assistant contractors, and certain working leaders for whose conduct the respondent is responsible. Approxi mately 1,500 signatures upon applications for membership in the Federation were obtained within 2 or 3 days. It is inconceivable that the Federation could have secured such complete and ready approval from the employees unless many of them joined because of their fear of engendering the displeasure of their employer by refusing to accept the organization it favored" The leading promoters of the Federation, those primarily responsi- ble for its formation, were the employee representatives of the em- ployer-dominated Association and the employer-dominated Foundries Associations . As the persons in charge of these employer-dominated organizations , they were representatives of the employer. "Men ac- customed to such submission seldom regain independence over- night." 48 These individuals, representatives of the respondent, aided by contractors, assistant contractors, and certain working leaders, thereafter solicited members for the Federation and perfected its organization . They were in a large measure responsible for the suc- cess of the Federation in securing the allegiance of a majority of the employees. As set forth above, the respondent is responsible for the- actions of the contractors, assistant contractors, and working leaders here involved 49 Houston, MacGillivray, Rose, and Smock testified that the policy of the respondent toward labor organizations and the union affiliations of the employees was one of complete neutrality. However, no general announcement of this allegedly neutral policy was ever made by the respondent to its employees. Rose testified that during May 1937, "as soon as [he] heard that there was any union activity in Baldwin" he "talked almost continuously" to all the foremen and "continuously gave them instructions to be absolutely neutral with respect to labor organizations ." Lansberry, foremen of the chipping and cleaning department of the foundry, was the only foreman who testified that he was instructed by his superintendent to be neutral as between the Federation and the S. W. O. C. On the other hand, Ruber, 47 Cf. International Association of Machinists , Tool and Die Makers Lodge No. 35, et at. V. N. L. R. B., November 20, 1939 (C. A. D. C.), enf'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No. 459, 8 N. L. R. B. 621. 48 International Association of Machinists , Tool and Die Makers Lodge No. 35, at al. v. N. L. R. B., November 20, 1939 (C. A. D. C.), enf'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No. 459, 8 N. L. R. B. 621. See also Matter of Republic Steel Corporation v. N. L. It. B., 107 Fed.. ( 2d) 472 (C. C. A. 3), enf'g as mod ., Matter of Republic Steel Corporation and Steel Workers Organizing Committee , 9 N. L. R. B. 219. ,19 See Section III B , supra. THE BALDWIN LOCOMOTIVE WORKS 1149 general foreman of the boiler shop, maintained that he never received any instructions from Rose or any other official of the respondent with respect to maintaining an attitude of neutrality toward union activities in the plant. We find it impossible to credit Rose's testi- mony. Daniel Cavan, a contractor in the erecting shop with 370 to 380 men working under him during May and June of 1937, stated, "I had no instructions from anyone above myself one way or the other on any of the unions." Cavan became a member of the Federation. In its brief the respondent contends that during May 1937. a group of its employees conferred with a representative of the Board for the Fourth Region for the purpose of ascertaining whether- con- tractors should be eligible to belong to the Federation. The respond- ent points out that Louis Koch, one of this group, testified that : ... he [the Board's representative] asked us what a contractor was and, when we tried to explain to the best of our knowledge what a contractor was, he said that would be like a gang buster in Southwark. He said they were permitted to vote in the election there ; so we took it for granted then that contractors could belong to the union, that they could belong to a union, too. Koch further testified that the discussion with the Board's represent- ative occurred "only a few days before the meeting of May 24th,?' the organizational meeting of the Federation; that he did not recall the name of the representative of the Board with whom the confer- ence was held; and that the purpose of the visit to the Board's office in Philadelphia was to request that an election be held among ... the boiler shop employees, to find out whether they wanted a union or not, or whether they wanted an outside union .. . We told the Labor Board to come in there and hold an election, and the man said something about the election-I don't know what it was now, and he says, "Have you a union?" We said, "No. We want to find out whether the men want it or not before we go to the trouble of organizing the boiler shop." When asked whether the word "contractor" or the word "leader" was ever in fact mentioned to the Board's representative, Koch answered, "Yes, we did, but I don't say which, whether contractor or leader ..." Louis Betz, another employee'in the group that con- ferred with the Board's representative, testified that he first learned about the visit to the Board's offices in Philadelphia when ... Mr. John Barrett told me I had to go into town . . . He said something about the Labor Board. He told me that Lou Koch was going there, and I had to go down with him. C 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record does not substantiate the contention that a representative of the Board determined that contractors were eligible to join the Federation. Nor can the respondent contend that the solicitation , threats, and coercion on the part of its contractors, assistant contractors, and certain of its leaders in behalf of the Federation do not constitute an unfair labor practice on the part of the respondent because these supervisory employees were at the time of such activity members of the Federation . We said in Matter of Ward Baking Company and Committee for Industrial Organization: 50 We are of the opinion , moreover , that the respondent is not relieved from responsibility for the union activity of its super- visory employees by virtue of membership of such employees in a labor organization. A corporate employer in its relations to its ordinary employees necessarily acts through and must be held responsible for the acts of its supervisory employees . Where such employees actively interfere with one labor organization and promote another, the employer itself must be deemed to have engaged in such inter- ference and promotion. and in Matter of Gulf Public Service Company and International Brotherhood of Electrical Workers, Local 7.90: 51 Qualifications for membership in a union are, of course, within the control of the union and not the Board and a union might, if it considers it expedient , admit supervisory employees to mem- bership. However, when a supervisory employee joins a labor organization while it is in the process of formation , and, in fact, precedes the employees who work under him into the union, his membership therein inevitably leaves its mark upon the em- ployees who are thereafter asked to join. We find that the respondent is responsible for the solicitation , threats, and coercion on the part of its contractors , assistant contractors, and certain of its leaders in behalf of the Federation even though such employees were members of the Federation at the time of such activity. 608 N. L. R. B. 558, at 5657 See also platter of Tennessee Copper Company and A. P. of L. Federal Union No. 21161,, 9 N. L. R. B. 117 at 119; Matter of Mt. Vernon Car Manu- facturing Company et al. and Local Lodge 1756, Amalgamated Association of Iron, Steel 4 Tin Workers of North America, affiliated with the Committee for Industrial organization, 11 N. L. R. B. 500; Matter of California Walnut Growers Association and Walnut Workers Union, Local 92 of United Cannery, Agricultural, Packing and Allied Workers of America, 18 N. L. R. B. 493. 61.18 N. L. R. B. 562. THE BALDWIN LOCOMOTIVE WORKS 1151 In his Intermediate Report the Trial Examiner found that The circumstances under which the contract was prepared, and executed ; Houston's expressed attitude and uncompromising in- sistence that it should not depart from the then existing rates, hours, and general provisions of respondent; the fact that Wibber- ley never had a complete draft of it to show to anyone and sub- mitted only certain high lights of some unidentified proposed contract to the Federation directors a day or two before the final draft was prepared and signed, and never submitted the contract to the membership until 9 days after it had been executed, leads to the conclusion that the contract was, in its essentials, dictated by respondent and was not an agreement fairly arrived at by the freely chosen representation of respondent's employees. We concur in the conclusion reached by the Trial Examiner. 52 More- over, the execution of the contract by the respondent, affording recognition and other rights to the Federation under the circum- 'stances here present, constituted a contribution of support to the Federation. Likewise the manner in which the amendment to the contract was executed shows a continuation of the domination of the Federation by the respondent. In view of the foregoing and upon the basis of the entire record, we find that the respondent has dominated and interfered with the formation and administration of the Federation and has contributed support thereto, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 'of the Act. E. Discrimination in regard to hire or tenure of e ?,ploynzent As set forth above, the complaint, as amended, alleges discrimi- nation by the respondent against 17 employees in regard to their hire and tenure of employment. In his Intermediate Report the Trial Examiner dismissed the allegations concerning John Keenan, Frank Enzangio, Mike Merlino, Joseph Krulikowsky, Edward F. Moran, and Steve Tzap, and also recommended that the complaint be dis- missed in so far as it alleged that the respondent discriminated against William O'Donnell with respect to his lay-off on January 24, 1938. No exceptions have been filed by any party to the dismissal of these allegations. Concerning Keenan, who had died prior to the 61 In addition to the manner in which the contract was executed , the provision of the contract for "periodical meetings " between the management and representatives of the Federation which were indistinguishable from the joint meetings between the respondent and the General Committees of the Association and the Foundries Association also sup- ports the Trial Examiner's conclusion. 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date of the hearing, the Trial Examiner concluded, "The Board. has no jurisdiction to enter any order with reference to the discharge or lay-off of John Keenan, now deceased." We do not agree with the Trial Examiner's conclusion concerning the Board's jfirisdiction.63 We have, however, reviewed the evidence bearing upon the alleged discrimination against these seven employees and we concur in the Trial Examiner's recommendation that these allegations be dismissed. Accordingly, we shall dismiss the allegations of the complaint, as amended, with respect to Keenan, Enzangio, Merlino, Krulikowsky, Moran, and Tza.p, and with respect to the lay-off of O'Donnell on January 24, 1938. The Trial Examiner found that 10 of the employees named in the complaint were discriminated against because of their union affiliation and activity; 54 and that another employee, William A. Siebrecht, Jr., was discriminated against by the respondent because of his union membership and activity and because he filed charges under the Act. We turn to a consideration of the circumstances surrounding the termination of employment of each of the persons involved. William A. Siebrecht, Jr.-Siebrecht was first employed by the respondent in 1918 as a plant apprentice. After a year, he was trans- ferred to the erecting shop, and thereafter he worked in practically every contract in the erecting shop. He also worked a short time in the boiler shop, and was laid off due to Jack of work, in 1924. He returned in 1929, was employed in the erecting shop as a first-class mechanic doing work designated as valve work and involving the installation of the reverse mechanism on locomotives, and remained at this work until December 1930. He was rehired for the same work as See Matter of Republic Creosoting Company and Reilly Tar and Chemical Corporation and Creosote Workers Union, Local No. 20483, 19 N. L. R. B. , 267 where the Board stated : The Republic Company, after discharging John Taylor on April 8, never at any time offered him reinstatement . If he had not died subsequent to his discharge and prior to the date . of the hearing, it is clear that in order to do equity and place him in status quo , the Republic Company would be required to offer him reinstatement to his former position , with back pay from April 8 to the date of such offer of reinstatement. The respondents contended at the hearing that his death on July 10 took from the Board any authority which it might have had to render relief to either John Taylor or his estate . We do not agree . The remedial power committed to the Board by the Act is unaffected by the employee 's death ; only the type of remedy is altered. The application of this remedial power is entrusted to the Board in the exercise of a sound discretion . The achievement of the ends toward which the Act is directed necessarily requires the adjustment of the injury done to the discriminatoriiy discharged em- ployee in the most feasible manner under all of the circumstances. Cf. Matter of El Paso Electric Company, a Corporation and Local Union 585, International Brotherhood of Electrical Workers; and N. P. Clay, et al., 13 N. L . R. B. 213. s' The names of these employees are : Louis Acenas , Cheyney W . Dailey, James Durso, Stanley Kakowski , Patrick McGovern , Jr., Richard Mclale, William O'Donnell , Clifford Robinson, Frank Robinson , and Henry Splett. THE BALDWIN LOCOMOTIVE WOILKS 1153 on November 24, 1936. On May 21, 1937, he was laid off. His em- ployment records initially showed as the reason for his lay-off the following entry which was inserted within about 2 weeks after May 21: "Laid off for a few days on account of lack of work. Failed to report." Shortly afterwards, however, upon the instruction of W. A. Linn, personnel supervisor, this entry was erased and the reason was changed to read "Lack of Work." As noted above, the respondent utilized the services of Pinkerton's National Detective Agency, Inc., for labor espionage purposes up to and during the month of May 1937. Investigations by the Pinker- ton Agency on behalf of the respondent were carried on as late as May 20, 1937. During the week beginning Monday, May 17, 1937, the employee representatives of the Association and the Foundries Association, together with many of the respondent's supervisory em- ployees, were actively engaged in obtaining members for the Federa- tion. On Friday, May 21, the General Committee of the Association voted to dissolve that organization. On the same afternoon the booklets "Join the C. I. O. and Help Build a Soviet America" were distributed to employees of the respondent. On the same afternoon Siebrecht was laid off. Siebrecht was the leader in the formation of Lodge 1741, the S. Al'. O. C. organization in the respondent's plant, and was active in soliciting his fellow workers to join Lodge 1741. During the week preceding May 21, 1937, he was elected the first president of Lodge 1741 and, at the time of the hearing, he was still serving in that capacity. Siebrecht's duties in the erecting shop were performed under the supervision of his father, who was a working leader in the contract which was headed by Albert Stickney, contractor, and Bernard Mc- Aleer, assistant contractor. Horace C. Sykes was general foreman of the erecting shop. On several occasions shortly before his lay-off, Siebrecht was advised by his father, "Son, you will have to stop this organizing the union here in the shop, or we are both getting fired . . . Mr. Sykes just had me on the pan . . . Son, Mr. Sykes is real angry about this thing now. He is sort of burned up." Sie- brecht told his father to tell Sykes to come directly to him if he had anything to say about the S. W. O. C. Siebrecht's last conversation with his father along these lines occurred about a week prior to May 21. We credit 'the uncontroverted testimony of Siebrecht and find that during May 1937, McAleer, the assistant contractor, told him that "they" had asked McAleer to "get rid of" Siebrecht; that McAleer told him that "they" were the people in the office; and that 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McAleer said that he had replied, "I won't get . rid of a good mechanic, they are too hard to get. He does his work right." 55 Stickney, the contractor, testified that on May 21 he approached Siebrecht about five minutes before whistle time. I said, "Bill, [Siebrecht] I have to give you a few days off." He laughed as though he. expected it. Then, he turned around and he said, "What for?" I said, "For lack of work." Further than that, I don't remember saying another word. Siebrecht testified that at the time he was laid off Stickney said, "You are laid off for lack of work"; that when he insisted that "that's not so. We have plenty of work," Stickney answered, "I know it . . All I can tell you is that you are laid off for lack of work . . . I can't tell you anything else, but that clears me"; and that when he protested that the reason for his lay-off was that he had been elected president of Lodge 1741, Stickney said, "Maybe so. But I told them you could do less damage here than if you are outside." The Trial Examiner , who from his observation of the demeanor of the wit- nesses had an opportunity to form a trustworthy opinion as to their credibility, found that "Stickney does not deny the conversations testified to by Siebrecht ; he merely does not remember them. He was a hesitant-witness and his testimony was indefinite and unpersuasive." We credit the testimony of Siebrecht and find that Stickney made the' statements recited above which were attributed to him by Siebrecht. On May 21, 1937, there were 135 men in Stickney's contract. Dur- ing the period which includes the last 2 weeks of May and first 2 weeks of June 1937, Siebrecht was the only worker laid off in the entire contract. During this period, three other employees in the contract voluntarily quit their jobs; yet one of the three was,subse- quently rehired.56 At the time Siebrecht was laid off, his two helpers continued to work in the contract. One of the helpers,' and ofher'first class mechanics in the contract, had been employed a shorter period than Siebrecht. Poole, who was also classified as a first-class me- 5 McAleer did not testify at the hearing. In its brief the respondent makes this assertion : In order to shorten the hearing as much as possible , the Trial Examiner 's practice throughout the hearing was to specify witnesses whom be desired to hear and the Trial Examiner did not ask respondent to produce Sykes, Siebrecht , Sr., McAleer or Chestnut, nor himself direct their production as witnesses. Although the Trial Examiner in some instances indicated his desire to hear particular wit- nesses, he at no time indicated , directly or otherwise , that the respondent was not com- pletely free to call as witnesses the above-named individuals ' or any other" persons it desired to. 56 Stevens , a crane operator , quit on May 21 ; Lykens, a laborer , quit on May 28 ; and Peppelman , a crane operator , quit on May 28, 1937. Peppelman was again employed in Stickney 's contract on October 11, 1937. TFIE BALDWIN LOCOMOTIVE WORKS 1155 chanic who did valve work, was first employed in Stickney's contract during the week after May 21, 1937. Stickney testified that he found it necessary to lay off Siebrecht because the available work was dropping off, he was losing money in the contract, and ... it was done to stagger the time. I thought if I give Mr. Siebrecht a few days off, bring him in, give the other men a few days off-that was my idea. Sticlmey's testimony is refuted by the employment records of his contract. Those records show that employment was not staggered in his contract during May and June 1937. In fact, the lay-offs which took place in Siebrecht's contract did not occur until July 1937, and the great majority of the employees who were then laid off were reinstated during the following October. In addition, a large num- ber of employees who had never before. worked in Stickney's contract were employed during October and November 1937. We reject the contention that Siebrecht was laid off because of lack of work. Upon consideration of the entire record we find that the respondent, on May 21., 1937, laid off, and subsequently refused to reinstate, William A. Siebrecht, Jr., because of his membership in Lodge 1741 and his activities in behalf of Lodge 1741 and the S. W. O. C., thereby discriminating in regard to the hire and tenure of employment of the. said employee and discouraging membership in a labor organization; that by said lay-off and refusal to reinstate, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Events subsequent to May 21, 1937, substantiate our conviction that Siebrecht would not have been laid off and would certainly have been reinstated but for his activity on behalf of the S. W. O. C. On June 1, 1937, charges were filed with the Regional Director for the Fourth Region alleging that the respondent had discriminated with regard to the hire and tenure of employment of Siebrecht. There- after, the Regional Director notified the respondent of the charge that Siebrecht had been discriminated against. On June 4, 1937, Sie- brecht returned to the respondent's plant and requested reinstate- ment. He first went to the erecting shop and talked to McAleer, the assistant contractor. We find in accordance with Siebrecht's uncon- troverted testimony that he had the following conversation with McAleer : I asked him, "Have you heard anything about my coming back to work, Barney?" He said, "No, I have not gotten any orders to put you back. Bill." 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I said, "Have you got a job for me?" He said, "Any day you come back I have a job. Get yourself cleared up with the main office. Go over and see if you can straighten out the damn mess." Thereafter Siebrecht saw Chestnut, the respondent's industrial rela- tions manager. We credit Siebrecht's uncontroverted testimony con- cerning the following conversation with Chestnut : He talked to me quite a while about different things, and then we came back to union activity. He told me that I should have an open mind on the subject and think as an individual, think of my wife and children and of my future, and not to bother with unions, that they only got you in trouble, and to try to straighten the thing out in my own mind and stop worrying about someone else's troubles, and maybe we could arrive at a decision. Siebrecht testified that Chestnut then took him to see Houston, the respondent's president. In regard to his conversation with Hous- ton, Siebrecht testified as follows : He asked me what he could do for me. I said "Put me back to work." He said, "We cannot very well do that. We couldn't very well employ anyone who has filed charges against us with the National Labor Relations Board." I said, "What do you want me to do?" He said, "You withdraw those charges from the National Labor Relations Board and we will see what we could do about re-employing you in Baldwin's." He told me then that as long as I spoke collectively he would not have anything to do with the matter, but if I spoke as an individual and went to the National Labor Relations Board and withdrew my charges he would see what he could do about putting me back to work. Houston testified that he did not recall any conversation in which he told Siebrecht that he was ineligible for reinstatement because he had filed charges with the Board. However we deem it un- necessary to resolve this conflict between the testimony of Siebrecht and of Houston in view of the evidence concerning the conduct and statements of Rose, the respondent's works manager, which we now consider. On July 8, 1937, a committee consisting of Siebrecht and several other members of Lodge 1741, met with representatives of the re- spondent and lodged a protest against the respondent's Lreatment THE BALDWIN LOCOMOTIVE WORKS 1157 of their organization and its membership. Siebrecht and three other members of Lodge 1741 testified that during the course of this meeting Rose stated that with regard to reinstatement Siebrecht had "cooked his goose" when he filed charges with the Board. When asked by counsel for the respondent whether he had made a re- mark to Siebrecht "about cooking his goose," Rose answered, "I don't remember it." Rose's subsequent testimony concerning this meeting of July 8, 1937, is as follows : Q. (By Mr. Montague.) Was any comment made by Mr. Sie- brecht regarding the charges which Mr. Siebrecht had filed? A. Yes, I think there was. Q. What did Mr. Siebrecht say? A. I don't remember what he did say. Q. Did you make any comment regarding any of the charges which had been filed by Mr. Siebrecht? A. I called attention to the fact that charges had been filed by Mr. Siebrecht and that, presumably, Mr. Siebrecht could not be rehired until after those charges had been disposed of. We are of the opinion that Rose's testimony establishes that the respondent refused to reinstate Siebrecht because of the fact that charges had been filed with the Board. As stated above, a large num- ber of workers who were new to Stickney's contract were employed during October and November 1937. During the week ending No- vember 19, 1937, 145 persons were employed in Stickney's contract, while by the week ending February 18, 1938, the number of employees had increased to 184. During November 1937, an employee who pre- viously had been discharged for inefficiency was hired to do valve work in Stickney's contract.57 We have found that the respondent, on May 21, 1937, laid off, and subsequently refused to reinstate, William A. Siebrecht, Jr., because of his membership in Lodge 1741 and his activities in behalf of Lodge 1741 and the S. W. O. C. We find that the respondent re- fused to reinstate Siebrecht on and after July 8, 1937, for the addi- tional reason that he had filed charges against the respondent under the Act.58 Cheyney W. Dailey. Dailey was first employed by the respondent during 1900. About 1906 or 1907 he started working in the rod shop of the, Section D machine shop, and with the exception of several 17 The name of this employee was Baleslaw Lisinski. After testifying that he had not been responsible for the employment of Lisinski , Stickney stated , "You see , my partner- I had a partner , McAleer . Now, he may have recommended him." 58 Matter of Friedman -Harry Marks Clothing Company, Inc . and Amalgamated Clothing Workers of America, 1 N. L. R. B . 411, enf'd, N . L. R. B. v. Friedman -Harry Marks Cloth- ing Co., 301 U. S. 58 , rev'g . 85 F. (2d ) 1 (C. C. A. 2). 28•.',031-41-vol. 20-74 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD short lay-offs, worked continuously until May 1932. Concerning Dailey's subsequent employment record, personnel data prepared by the respondent discloses, and we find accordingly, that Dailey was rehired January 9, 1934, at 600 per hour and worked until February 13, 1934. He was rehired again on June 4, 1934, at 60¢ per hour and worked until May 2, 1935. He was rehired again on July 8, 1935 at 65¢ per hour and worked until May 21, 1.936. He was rehired again on June 9, 1936, at 70¢ per hour and worked until August 7, 1936. He was rehired again on August 24, 1936, at 700 per hour and on Janu- uary 23, 1937, his rate was changed to 700 per hour plus 71/2%. On April 3, 1937, his rate was changed to 82¢ per hour as part of a general raise given at that time. The last day Dailey worked was June 1, 1937. During all the time shown above Dailey worked in the Rod Shop. The work of the rod shop involved the making and finishing of con- necting rods for locomotive driving wheels. For many years Dailey's duties in the rod shop consisted of putting on connecting rod acces- sories such as oil cup caps, feeders, set screws,.and washers, and of installing and inspecting the bushings on the connecting rods. It was also part of Dailey's job to assemble the accessories used on the con- necting rods and in doing this he had to go into the bolt shop and the storeroom next to the bolt shop. The task of getting the parts together took about 2 hours of Dailey's time in the morning and .about the same time in the afternoon. Dailey worked under Herman Jacobs and Owen Jones, contractors. David N. Hughes was gen- eral foreman of the Section D machine shop ; Joseph T. Creeden was assistant foreman in charge of the connecting rod and piston work. On May 11, 1937, Dailey joined. Lodge 1741 and immediately be- came active in soliciting members. We find in accordance with Dailey's uncontroverted testimony that about 10 days later he had the following encounter with Creeden : . . . at dinner time, when I was going over from the erect- ing shop from Mr. Siebrecht ... and coming back from there I had a hat full of C. I. O. application blanks. I had no pockets in my overalls, so I put them in my cap, and when I came over Mr. Creeden was standing at the desk, so I pulled my cap o$ and showed him. He said "Well, that's all right," and lie was shaking his head. I put my hat back on and he started to laugh. Two days afterwards, which was about a week before Dailey's dis- charge, Creeden came over to him and said, "Dailey, now this ain't THE BALDWIN LOCOMOTIVE WORKS 1159 my doings at all, but Mr. Hughes come to me and told me to tell you to stay in your own department, not to go out of it at all." Thereupon Dailey's duties of gathering together parts and accessories were assigned to another employee, while Dailey was limited to his bench and rod fitting work. On June 1, 1937, Creeden told Dailey that one of the bushings on a connecting rod had been rejected in the erecting shop. A few moments later, Jones, one of the con- tractors,*told Dailey to report at Hughes' office. Thereafter Hughes discharged Dailey on the ground of "neglect in his work." Hughes testified that during the latter part of 1936 and the be- ginning of 1937 he noticed that Dailey was spending too much time in the bolt shop and that he thereupon on two occasions told Creeden, the assistant foreman, that lie wanted Dailey "to remain at his work more, instead of going into the bolt shop." Hughes admitted that the foreman in the bolt shop had never complained to him that Dailey was spending too much time in that department. Dailey testified that from the time lie started working in the rod shop, about 1907, until about the time he joined Lodge 1741, in May 1937, no complaints were made concerning his work. Since neither Cree- den nor Dailey's contractors testified at the hearing, we credit Dailey's testimony. We find that Dailey was never warned that he was spending too much time in the bolt shop and that none of his :superiors ever brought such a matter to his attention. Nevertheless during the latter part of May 1937, shortly after he had joined Lodge 1741 and been active in its behalf, Dailey was notified per- emptorily that the general foreman had issued an order to Dailey "to stay in your own department." With respect to his discharge on June 1, 1937, which was about a week after he was taken off the work of assembling the accessories for the connecting rods, Dailey testified as follows : A few minutes before quitting time Mr. Jones comes up to me and told me that Mr. Hughes wanted to see me in the office. I walked down to the office and he wanted to know about this brass bushing. I said I don't know nothing about it. He said, "You ought to know. You ought to look after it." He said, "I will have to let you go." I said, "That's up to you." Dailey did not make or bore out the bushings, he installed them on the connecting rods together with the accessories. After Dailey had put on the necessary equipment, the connecting rods went to the ,erecting shop. Bushings which were out of parallel or which were rough would be rejected by inspectors in the erecting shop and thereupon returned to the rod shop for refitting. 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hughes testified that during the latter part of 1936 and the be- ginning of 1937 many bushings were rejected by the erecting shop and sent back to the Section D machine shop for correction; and that about four different times he voiced his complaints regarding the rejections. When asked to whom he made these complaints, however, Hughes answered, "I made the complaints to Creeden, the foreman, and also the contractor, Herman Jacobs." We find that these complaints were not transmitted to Dailey. Hughes testified fur]her that the first time he raised the matter of rejected bushings with Dailey "it was the middle of April, or the latter part of April" of 1937; that Dailey answered, "I and doing the best I can"; that after the first time Hughes spoke to him, Dailey's work "improved a little bit"; but that finally Dailey's work "drifted back again, drifted back to where it was." Concerning Dailey's discharge on June 1, Hughes testified as follows : I sent for Mr. Dailey. He came to my office. I said, "Dailey, about two weeks ago I spoke to you about becoming careless. I asked you to mend your ways. You promised me you would." I said, "Now you have fallen right back again. I can't permit this to go on." I said, "I will have to leave you go." The record does not support the contention that Dailey was dis- charged because he neglected his work. During April 1937, there were four rejections of bushings by the erecting shop, during May 1937, there were two. When asked how frequently bushings were rejected prior to April 1937, Hughes answered, "Sometimes twice a. month, sometimes only once a month"; and when asked whether one or two bushings had been rejected in January and in February 1937, Hughes replied : That thing happens right along. When you have a big job, you know, and different men work on these boring mills to bore out these bushings, you can't avoid that. At times when there was a great demand for connecting rods, Dailey was assisted by a helper in the work of fitting up the rods. More- over, 50 per cent of Dailey's time was occupied in getting the ma- terials and accessories, and, to quote the words of Hughes, Dailey "was not a mechanic, but a handy man." Hughes testified that Jacobs, the contractor, had told him that "Dailey is a good man," and on cross-examination Hughes offered this explanation for Jacob's conclusion, "Dailey was Jacob's detail man. It is always hard to get a good detail man to follow up and take the responsibility off his shoulders." THE BALDWIN LOC'OMOTIVE' WORKS 1161 An incident which occurred after Dailey's discharge indicates Hughes' hostility towards Dailey and his activities in behalf of the S. W. O. C. On July 8, 1937, Dailey returned to the plant as a mem- ber of the committee of Lodge 1741 which had arranged for a con- ference with the management of the respondent for the purpose of protesting the discriminations against members of Lodge 1741. Dailey went to the rod shop to get some personal belongings which he had left in his locker. Dailey met Hughes in the rod shop and told him, "I came in here to get my things belonging to me here, and I am on a committee to go over and see Mr. Houston, grievance com- mittee." Hughes had Jacobs, the contractor, go along with Dailey while he obtained his belongings, and then Hughes called for a plant guard. As Dailey was starting to go out of the shop, after having secured his things, the plant guard who had been summoned by Hughes came up to him. Dailey told the guard that he was going over to the main office for a grievance meeting. However the plant guard put Dailey in a guard car, took him to one of the back gates instead of to the office, and ejected him from the grounds. Hughes denied that Dailey had mentioned that he was a member of a protest committee which was to meet with the management on that day, but otherwise admitted the truth of Dailey's testimony. Hughes explained that it was a plant rule that "when there are men in the shop without passes, to notify the guards so they could come and escort the man out." Smock, general superintendent of the locomotive division; testified as follows : Q. (By Mr. Davis). Did you know of any rule . . . that if an employee was off the pay roll when he came back to the shops, that he should be escorted out by a guard? A. No. Q. Did you ever give any instructions to the effect at any time? A. No. Yeakle, foreman of the wheel box and spring rigging shop, gave similar testimony that there was no rule that a former employee who returned to the shops to talk about a job or to get his tools should be escorted out by a guard. We do not believe that Hughes would have treated Dailey in the manner related above if he had discharged him for the reasons which Hughes assigned and not because of his union membership and activities. The respondent's hostility towards the S. W. O. C. and its mem- bers at this time, as shown by the discrimination against Siebrecht, the employment of the Pinkerton agency for the purpose of main- taining -surveillance over the union activities of - its employees, and numerous other acts previously discussed, the fact. that Dailey was 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD never criticized by the contractor to whom he was responsible for his work or by the assistant foreman who was next in charge, the fact that Dailey's discharge followed so closely upon his solicitation of members for Lodge 1741 and the subsequent curtailment of his duties, the fact that Dailey received an individual wage increase near the end of January 1937, Dailey's many years of service with the re- spondent, and the treatment which Dailey received upon .his return to the plant on July 8, 1937, among other things, all lead us to find, as did the Trial Examiner, that the respondent, on June 1, 1937, dis- charged, and subsequently refused to reinstate, Cheyney W. Dailey because of his membership in Lodge 1741 and his activities in behalf of Lodge 1741 and the S. W. O. C. We find that the respondent by discharging and refusing to reinstate Dailey, discriminated in re- gard to the hire and tenure of employment of said employee, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. William O'Donnell and Louis Acenas.-The complaint alleges -that on or about June 9, 1937, the respondent required O'Donnell and Acenas "to remain away from their regular employment" for the reason that they joined and assisted the S. W. O. C. On Monday, June 7, 1937, some of the members of Lodge 1741 held a parade through the boiler shop during the noon hour with the object of proclaiming their affiliation with, and securing addi- tional members for, Lodge 1741. Among those who participated in the "boiler shop parade" were O'Donnell, Acenas, Frank Doersch, Thomas Campbell, and John Keenan, all employees in John Bar- rett's contract; and Richard McHale, Stanley Kakowski, and Joseph Krulikowsky, employees in other contracts in the boiler shop. The evidence concerning the parade is conflicting, and the estimates of the number of employees who participated in the demonstration vary from 6 or 7 up to 50 or more. The men in the parade proceeded down the center aisle of the boiler shop, which is called "Broadway;" and urged the other employees to fall in line and to join Lodge 1741. At the close of work on Wednesday, June 9, 1937, John Barrett notified O'Donnell, Acenas, Doersch, Campbell, and Keenan that each of them was being laid off for a few days. O'Donnell lost 7 days of work and was not reinstated until June 21, while Acenas lost 8 days of work and was not reinstated until June 22, 1937. However, several other members of Lodge 1741 who were employed in Barrett's contract were not laid off during this period. Barrett testified that the lay-offs were made necessary by the fact that his contract was caught up with its work, that it was ahead of the departments which it supplied with boiler plate, and that Rehfuss, THE BALDWIN LOC'OM'OTIVE W-ORKS 1163 the assistant foreman, said to him, "I think you are too far ahead. You had better cut down on the number of men that you have on your gang." The evidence does not establish that O'Donnell and Acenas were laid off because of their union membership and activity. We find that the respondent, by laying off O'Donnell from June 9 to 21, 1937, and Acenas from June 9 to 22, 1937, did not discriminate in regard to their hire or tenure of employment. Frank Robinson, Clifford Robinson, and Patrick McGovern, Jr.- Frank Robinson, his son, Clifford Robinson, and Patrick McGovern, Jr., were employed in William Hewitt's contract in the erecting shop. Frank Robinson, a first class mechanic, started his employ- ment with the respondent in 1911. From July 1926 until November 1928, and again from November 1934 until April 1935, he was em- ployed as a flueman in the erecting shop. In March 1935 he was transferred to-the tender shop, where he worked. as a caulker until the end of June 1935 when he was laid off. On November 5, 1936, he was reinstated as a flueman in Hewitt's contract in the erecting shop. Frank Robinson joined Lodge 1741 during April 1937, was the S. W. O. C. steward for the erecting shop, and took an active part in soliciting members for Lodge 1741. He wore his S. W. O. C. buttons while at work. John Deacon and Herbert Hitchner, who were working leaders under Hewitt and active in obtaining members and collecting dues for the Federation, admitted that they knew that Frank Robinson was in favor of the S. W. O. C. and opposed to the Federation. Clifford Robinson was first employed by the respondent on Novem- ber 24, 1936, as a second class mechanic and helper in the boiler test crew in Hewitt's contract. As part of his duties he checked and made stencils of the identification numbers on the plates in the boilers and also assisted in the water test and in the installation of superheater units. He joined Lodge 1741 in May 1937 and wore the buttons of that organization while at work. When asked whether he knew that Clifford Robinson "was C. I. 0.," Herbert Hitchner answered, "Well, I thought he was." Patrick McGovern, Jr., was first employed by the respondent on June 3, 1929, and worked in the drawing room until July 19, 1930. On November 25, 1936, he was employed as a first class mechanic in Hewitt's contract for work on superheater installation. He also, acted as a general helper and utility man, fired locomotive boilers,, cut wood for firing, and worked on the water test and the steam pipe test. He joined 'Lodge 1741 during April or May 1937,- was active in soliciting other members, and wore his S. W. O. C. buttons while at work. Hewitt, the contractor, as well as the working 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD leaders knew that Patrick McGovern, Jr., was a member of Lodge 1741. Frank and Clifford Robinson were laid off on June 25, 1937; McGovern was laid off on June 30, 1937. The employment records of the respondent set forth as the reason for each of these lay-offs, "lack of work." During the pay-roll period which ended June 25, 1937, there were 38 employees working in Hewitt's contract.60 The respondent con- tends, and we find, that a reduction in personnel was in order because of the fact that in the spring of 1937 its production schedule was dis- rupted by delays and failures in the delivery of boiler plate and bed frame castings. Of the 38 persons employed in the contract at the time, 18 employees, which included Hewitt, the contractor, and John Deacon and Herbert Hitchner, leaders, were members of the Federa- tion and were not members of Lodge 1741; 6 other employees were members of both the Federation and Lodge 1741; 7 other employees were members of Lodge 1741 and were not members of the Federa- tion ; while 7 employees were members of neither organization. Dur- ing the last week of June and the first week of July 1937, the force in Hewitt's contract was reduced by 1-2 employees. Deacon, the leader, was given by Hewitt, the contractor, a slip of paper with the names of the men to be laid off on account of lack of work. As noted above'60 Hewitt determined upon the lay-off because, to quote his testimony, "I am allotted so much money for a job, and I have a schedule to work by . . . I have got to lay off men to suit myself ... it is up to me to meet my own payroll. If I don't meet it, why, I don't stay on that job very long . . ." The 12 employees who were laid off consisted of the 7 employees who were members of Lodge 1741 and who were not members of the Federation;61 4 employees who belonged to neither organization; 62 and 1 employee, James Cabry, who was a member of the Federation and not a member of Lodge 1741, but who had been employed in the contract for the first time in the middle of May. 1937. No other employees were laid off in Hewitt's contract until the beginning of August 1937, when the force was further reduced by four employees. These four employees consisted of one first class mechanic who was a member of the Federation and not a member of Lodge 1741, but who had been employed in the contract for the first time on June 7, 1937; one second class mechanic who was a member of the Federation and not a member of Lodge 1741 and 11 Hewitt and his working leaders are included in this figure. ao See p. 1117 , supra. 51 These seven employees were Frank Robinson, Clifford Robinson, Patrick McGovern, Jr., Robert Balbirer , William Propst, George Gross, and Horace Lush. ca These four employees were Henry Hamilton, James , Damm , William Inglis, and' Harry Thomas, Jr. THE BALDWIN LOCOMOTIVE WORKS 1165 who had been employed in the contract for the first time on June 14, 1.937; one first class mechanic who belonged to neither organization and who had been employed in the contract for the first time on June 14, 1937; and one first class mechanic who belonged to neither organ- ization and who had been employed in the contract before April 1937. From the aforesaid facts, and from the entire record, it is clear that every employee in Hewitt's contract who was a member of Lodge 1741 and who was not a member of the Federation was laid off before or during the first week of July 1937; that employees who were hired in the contract for the first time in the beginning of June 1937 were not laid off during the first week of July but were retained on the pay roll; and that every member of the Federation remained at work dur- ing all of 1937, except for three members of the Federation who were hired in the contract for the first time about the middle of May 1937 and thereafter. We believe that these facts establish that the aim and purpose of the lay-offs which were made in Hewitt's contract during the last week in June and the first week of July was the discourage- ment of membership in Lodge 1741 and the encouragement of mem- bership in the Federation B3 It is unnecessary, however, that we rest our conclusion on these facts alone. After the reduction in personnel which occurred in Hewitt's con- tract about the beginning of August 1937, there were no further layoffs during August or September. During the latter part of September 1937, three first class mechanics who were new to Hewitt's contract were added to the force, while during October 1937, five new first class mechanics were added to the force. George Gross, an employee in Hewitt's contract who had been, laid off at the end of June, was reinstated in the middle of October 1937. Gross testified that before he returned to work he was warned by Hewitt that he "should never bother" with the S. W. O. C. organization and that Hewitt said to him, "Before you start to work, I will tell you, don't do anything like that wrong again like that, unless you see me." Hewitt denied this testimony of Gross. The Trial Examiner, who, from his observation of the demeanor of the witnesses had an oppor- tunity to form a trustworthy opinion of their credibility, found that a+ Montgomery Ward & Co., Inc. v. N. L. R. B., 107 F. (2d) 555 (C. C. A. 7), enf'g as mod., Matter of Montgomery Ward & Company and Reuben Litzenberger, et al., 9 N. L. R. B. 538; N. L. R. B. v. Louisville Refining Co., 102 F. (2d) 678 (C. C. A. 6), cert. denied October 9, 1939, enf'g a mod., Matter of The Louisville Refining Company and Interna- tional Association, Oil Field, Gas Well and Refinery Workers of America, 4 N. L. It. B. 844; Hamilton-Brown Shoe Co. v. N. L. R. B., Boot & Shoe Workers Union v. N. L. R. B., 104 F. (2d) 49 (C. C. A. 8), enf'g as mod., Matter of Hamilton-Brown Shoe Company, a corporation and Local No. 125 United Shoe Workers of America, affiliated with the Com- mittee for Industrial Organization, 9 N. L. R. B. 1073; North Whittier Heights Citrus Association v. N. L. R. B., 109 F. (2d) 76 (C. C. A. 9), enf'g Matter of North Whittier Heights Citrus Association and Citrus Packing House Workers Union, Local No. 21091, 10 N. L. It. B. 1269. 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was "impossible to accept the testimony of Hewitt" and that the inconsistencies in, Hewitt's testimony were "irreconcilable." The "Trial Examiner credited the testimony of Gross recited above. From an independent consideration of Hewitt's testimony and for reasons hereinafter apparent, we concur in the Trial Examiner's finding that Hewitt's testimony is not to be credited. We find the facts to be as set forth above in the testimony of Gross. Horace Lush and William Inglis, other' employees who were laid ,off at the end of June, were reinstated during October and November 1937, respectively. No one else among the 12 employees who were laid off during the last week of June and the first week of July was reinstated by the respondent.. During November and December 1937, nine first class mechanics, two second class mechanics, and two helpers, all of whom were new to Hewitt's contract, were added to the force. By April 1938 the number of persons employed in Hewitt's contract had reached 50. We find that Frank and Clifford Robinson and Patrick McGovern, Jr., were qualified to do the work for which some of the new employees were hired and that there were 'sufficient new jobs available for the respondent to have reinstated them to jobs which they were qualified to perform. We find that in addition to the discrimination against Frank and Clifford Rob- inson and McGovern in their lay-offs at the end of June 1937, the respondent, as the Trial Examiner found, further discriminated :against these employees by refusing to reinstate them because of their membership in Lodge 1741 and their failure to display sufficient interest in the Federation. 1Ve shall now consider, in connection with the cases of these three individuals, additional facts which establish that their lay-offs and -the subsequent refusals to reinstate them were discriminatory. . On July 8, 1937, Frank Robinson, as a member of the committee which represented Lodge 1741, participated in the meeting with the management of the respondent at which a protest was lodged against the respondent's treatment of Lodge 1741 and its membership. After the meeting adjourned, Robinson discussed his own case with Smock, the general superintendent of the locomotive division, and asked "if -there would be a possible chance of . . . getting back to work." 'Shortly thereafter, Smock spoke to Hewitt concerning the possibility .of Frank Robinson's reinstatement. Hewitt testified that he knew Frank Robinson for many years; that Hewitt's family and Robinson's family on numerous occasions visited each other; that he and Frank Robinson had many arguments on various controversial subjects; that they "never would argue about unions. I never would let them talk about them in my home. ' If he would try to talk about them, I would stop him right away . . . If' THE BALDWIN LO00MOTSVE WORKS 1167 he tried to mention unions to me, which he tried to do, I would stop him"; that at the time he laid off Robinson he did not know that lie was a member of Lodge 1741; that he never gave "any consideration to a man's union affiliations or lack of union affiliations in case of recommending either the hiring of a man or the laying off of a elan"; that following the protest meeting of July 8, 1937, none of his superiors talked to him about the possibility of reinstating Robinson; that following the protest meeting he offered Robinson a job as a fireman,. but Robinson turned it down; and that Robinson did not do flue work. Upon being cross-examined with respect to his con- versation with Smock shortly after July 8, 1937, Hewitt made the following admissions and we find in accordance therewith : ... Mr. Smock came to one and lie said, "Now, we- have got some of these men out of here, is there any way of putting some of these. fellows in there that.was at the protest meeting?" And he asked me about Mr. Robinson, and I said, "I really think no, I couldn't even put him back to work because he would upset my. gang if he got back." I had found out that he was the man trying to get the men in my gang here to join the C. I. O. and I says, "Well " He says, "You can't do anything for him?" I says, "No, not that way. I don't think I can, Mr. Smock, because I think he, I know that he is too radical." "Well," he says, "How do you know that." "Because," I says, "I know him from a boy," and I says, "I suggest to you that I write his career up for you which I will do," and Mr. Smock said, "It is O. K.," and that is all he said, but in the meantime why, I wrote it up for him. . . During this conversation, Hewitt also told Smock that Robinson was a labor agitator, had been active in the union at Sun Shipbuilding and Dry Dock Company, and "had radical ideas at times." There- after Hewitt wrote up his story of Frank Robinson's career and sent it to Smock. Smock; in turn, delivered, Hewitt's, report to Rose; the works manager. When he received the document, Rose made the statement that "it was worthwhile looking into." Rose thereupon asked Richard W. Wuest, the respondent's plant engineer, to - "find out whether Frank Robinson was an alien, illegally entered in this country," and told Wuest that "Robinson is believed to be an agitator and a trouble maker." On July 14, 1937, Wuest wrote a letter to the district commissioner of the United States Department of Labor, Immigration and Naturalization Service, which reads in part as follows : 4168 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD Mr. Frank Robinson, whose address is 702 Sproul Street, Chester, Penna., is employed at this Plant. It is reported that he came to this country illegally from Canada to avoid military service during the World War. He has a family consisting of a. wife and one child who were also born in Canada and are reported to have entered the country illegally. . Mr. Robinson is known to be a radical and a labor agitator. He took part in the Campbell Soup Company strike in Camden, N. J., a few years ago. He was also active in the Sun Shipbuild- ing Company labor troubles. He has been employed at this Plant since November 5, 1936, and is suspected of being an agi- tator in the Plant. I bring this to your attention because of the fact that he is reported to be an undesirable alien who entered this country without legal authority. I would appreciate verifi- cation of this report. In view of the foregoing, we find that Hewitt had knowledge of Frank Robinson's membership in Lodge 1741; that Hewitt in laying off and refusing to reinstate Robinson was guided by anti-union bias; and that Smock, Rose, and Wuest, high supervisory officials of the respondent, in sustaining Hewitt's position likewise demonstrated the respondent's hostility towards Lodge 1741 and its members. Frank Robinson denied that on June 25, 1937, or thereafter, Hewitt offered him a job as a flueman; denied that he ever refused to do any flue work; and testified that while he was employed by the respondent he 'did all the work which was involved in putting in flues. We credit Robinson's denials and find the facts to be as set forth above in his testimony. Smock, the general superintendent, testified that Frank Robinson worked in "what was commonly called the flue gang." Upon cross-examination Hewitt admitted that Robinson could do flue work and could do "pretty near any job" in the erecting, shop. Nevertheless, three fluernen who were new to Hewitt'os contract were employed during September and October 1937, and took over the work formerly done by Frank Robinson. Robinson was never reinstated by the respondent. In November or December 1938, Linn, the respondent's personnel supervisor, changed the employment rec- ords of Frank Robinson and inserted over the occupation " flueman," which had been written in when Robinson was hired in 1936, the occupation "chipper and caulker." With respect to Clifford Robinson and Patrick McGovern, Jr., Smock, general superintendent of the locomotive division, testified that they were not laid off, but that they were discharged. Smock testified that Patrick McGovern, Sr., generally was in charge of firing locomotives during their test period and when they were prepared for 2 THE BALDWIN LOC'OMOTIVE WORKS 1169 delivery ; that Patrick McGovern, Jr., and at times Clifford Robinson, assisted in this work; that on one occasion at the end of June 1937, two locomotives were ready for delivery; that orders were issued for the locomotives to be fired on Sunday night in order to have them ready for delivery, with a full head of steam, early Monday morning; that the two McGoverns and Clifford Robinson, who were ordered to fire the locomotives and have them ready for delivery on Monday morning, failed to do so; and that when on Monday morning he discovered that the locomotives "were not under steam," Smock had the three employees discharged. Subsequently Smock was shown the employment records of the respondent which disclosed that Patrick McGovern, Sr., who was a member of both the Federation and Lodge 1741, continued to be employed in Hewitt's contract until April 1938, and that Clifford Robinson and Patrick McGovern, Jr., were laid off because of "lack of work" on Friday, June 25, 1937, and on Wednesday, June 30, 1937, respectively. Thereupon Smock testified in regard to Clifford Robinson that "It is just possible that there is a confusion there as he being the one of the party of three which I referred to"; in regard to Patrick McGovern, Jr., that apparently someone had disobeyed Smock's orders; and finally that he was not positive in his own mind about the identity of the men who were discharged because of this incident. Hewitt admitted that Clifford Robinson applied to him for rein- statement "about three times" after he was laid off. When asked whether Clifford Robinson was a good worker, Hewitt answered, "I never had any trouble with him. ' I never had anything to say to him.'x In October 1937, Clifford Robinson's work of making stencils of the identification numbers on the sheets in the boilers was being done by a new employee who was hired to learn electric welding. As noted above, two second class mechanics and two helpers, all of whom were new to Hewitt's contract, were hired during November and December 1937. Concerning the work of Patrick McGovern, Jr., there had been no complaints. When he was laid off on June 30, 1937, Hewitt told him, "Well, there won't be anything doing until about September." In September or October 1937, McGovern went back to the plant and requested reinstatement on several occasions, and he also talked to Hewitt at the latter's home. During October, McGovern wrote a letter to the personnel office and again requested reinstatement. By a letter dated October 25, 1937, he was advised that there were no openings at that time. However, the employment records of Hewitt's contract disclose that three new first class mechanics were added to Hewitt's force in September 1937, five in October, and nine in Novem- ber and December 1937. Among these new employees were included 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD utility men who took over the work which McGovern had been doing. Neither McGovern nor Clifford Robinson was ever reinstated by the respondent. Upon consideration of the entire record, including the findings of the Trial Examiner, we find that the respondent, on June 25, 1937, laid off, and subsequently refused to reinstate, Frank Robinson and Clifford Robinson and each of them, and on June 30, 1937, laid off, and subsequently refused to reinstate, Patrick McGovern, Jr., be- cause of their membership in Lodge 1741 and their activities in behalf of Lodge 1741 and the S. W. 0. C., thereby discriminating in regard to the hire and tenure of employment of the said employees and each of them, and discouraging membership in a labor organization; that by said discharges and refusals to reinstate, the respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Richard McHale.-McHale was employed by the respondent for the first time on July 25, 1929, and worked in the boiler shop until lie was laid off on August 30, 1929. On October 1, 1929, he was rein- stated in the boiler shop, where he worked until November 30, 1930. On April 28, 1936, lie was employed in the boiler shop as a staybolter in the contract of J. J. Lynam. He was active in organizing the S. W. 0. C. local in the plant and was the S. W. 0. C. steward for the boiler shop and the leader of the parade of June 7, 1937. Tues-, day, June 22, 1937, was the last day on which McHale worked for the respondent. Leonard Ruber, general foreman of the boiler shop, testified that. on June 22, 1937, McHale was told that there would be no work for him on the next day, but that he should report for work on June 24; that McHale did not report for work on June 24, but came in late in the day, after the men had been paid in the regular pay line, and collected his pay through an unclaimed wage slip; that Riiber.repri- manded McHale for staying away from work, and then told him to report for work the following Monday, June 28; that McHale did not appear on that day and Ruber thereupon notified the contractor to send McHale in to see him when he did come to work; that McHale stayed out until Wednesday, July 1, 1937, when he carne in and col- lected his pay for the preceding week in the regular pay line; and that at that time Ruber discharged McHale for failing to come to work. Testrail, the boiler shop clerk, corroborated this testimony of Ruber. On July 9, 1937, the following entry was made upon McHale's employment record : "Indefinitely suspended for indifference to rules and regulations." McHale testified that his employment with the respondent was terminated as a result of a lay-off and not as the result of a discharge. THE BALDWIN LOCOMOTIVE WORKS 1171 and that Ruber told him there was a shortage of work in the shop and he would be recalled at a later date. McHale admitted, how- ever, that he was sent to Ruber's office by Lynam, his contractor, and that he had not been working the day before. McHale testified as, follows : So, I' goes in and I says, ,"Mr:.Ruben,"- I says, "Mr., Lynam told me you wanted to see me this morning as soon as I would. report to work." So he says, "Yes, I do. Where were you yesterday?" I says, "As I understand it, there was no work Thursday and Friday, and there was no work Monday ; or there was no work Thursday and Friday, and that I was to report on a Monday."' As I said, I don't know whether I reported on the following Monday or a Friday-or, I mean, or it Tuesday, and he says to me-he gives me a story there about he is going to have to cut down on the expenses . .. and that he is picking me as one of the fellows that-lie is=going t61ay0 ff. We are of the opinion that the foregoing testimony of McHale sub- stantiates Ruber's story concerning McHale's discharge. We find that the evidence is insufficient to establish that the respondent dis- criminated against McHale in regard to his hire and tenure of employment. James••Dumo.-Durso begandhis employment with the respondent on February 25, 1937, as a laborer in the chipping department of the foundry. His work consisted of keeping the floor of the chipping room free from dirt and scrap iron and assisting under the crane, as a hookup man, when castings were moved from one part of the shop to another. In the middle of June 1937, Durso joined Lodge 1741, and during the latter part of the. same month, he joined the Federation. On July 6, 1937, at about 1 o'clock in the afternoon, Durso pinned his S. W. O. C. button to his hat., Near the close of work on the same day, he was told by one of the checkers in the department that he was being laid off. Durso immediately went over to Edward Lansberry, the foreman of the chipping department, and asked for the reason for his lay-off. Durso testified that Lansberry told him, "Well, you are not doing your work right." On July 8, 1937, Durso returned to the foundry and collected the wages which were due him. The "pay off order" which he signed at that time gave,as the reason for the termination of his employmment, "short of work." Lansberry denied that he told Durso that lie was being laid off because his work was unsatisfactory. ' Lansberry testified that on July 6, 1937, he laid off Durso and that thereupon Durso "asked why 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was laid off, and I told him I had too many men, that I had orders to reduce the gang. We were getting very slack." Only one other employee was doing the kind of work that Durso was doing, and Lansberry's uncontroverted testimony is that this "other man had about 22 or 23 years' service with the company." Lansberry testified that when he laid off Durso, "I also told him I would send for him as soon as I needed him." No general laborers were hired in the foundry chipping depart- ment after July 6, 1937. Only three employees were hired after this date, all of them being chippers. Durso was an unskilled laborer and had never done chipping work. On the basis of the record we find that the evidence is insufficient to establish that the respondent discriminated against Durso in regard to his hire and tenure of employment. Stanley Kakowski.-Kakowski started working for the respondent in 1912 and was laid off in 1914. He again was employed by the respondent from 1918 until 1921, from 1922 until 1926, and from 1927 until 1931. On November 2, 1936, he was hired as a chipper and caulker in the boiler shop in Harry Cox's contract. Kakowski joined Lodge 1741 during May 1937. He was active in obtaining members for the S. W. O. C. local and, on June 7, 1937, participated in the parade which his organization held in the boiler shop. On October .25, 1937, Kakowski was discharged for being "unable to do the work required." Kakowski, who was of foreign birth, spoke and understood Eng- lish poorly. He testified that after he joined Lodge 1741 there was a material change in the attitude of his leader, Hatfield, towards him; that Hatfield shifted him from one boiler to another and then criti- cized him for not turning out enough work; and that Hatfield con- stantly addressed him with obscene epithets. Hatfield denied engag- ing in the conduct which Kakowski attributed to him. On October 24, 1937, Kakowski was working on a boiler which required the use of nickel steel rivets. These rivets are harder than ordinary rivets and dull the tools of the caulkers. About 2 o'clock in the afternoon, Cox, the contractor, spoke to his working leader, Benjamin Hatfield, and told him that he was "not making much progress with this boiler." Hatfield told Cox that Kakowski was causing the delay since he had caulked only 60 rivets up to that time. Cox called Kakowski away from his work, told him that there was "a big hurry for the job, that he should not lay down on the job," and walked away. Shortly afterwards, Cox saw Kakowski putting his tools in the tool box. Cox asked, "What is the matter?" and Kakowski answered, "I am fired." Cox told him, "No, you are not fired, go back to work." THE BALDWIN LOCOMOTIVE WORKS 1173 Following . this incident with Cox, Kakowski decided that he was "in trouble" and that he "was not safe here." On the morning of October 25, 1937, he went to see Ruber, the general foreman of the boiler shop , for the purpose of requesting a transfer . Ruber sent for the contractor, Cox, and asked him what the trouble was. Cox told Ruber that Kakowski was not doing enough work and had only caulked 60 rivets up to 2 o'clock of the preceding day. Ruber told Kakowski that that was not sufficient work. Kakowski testified that thereupon Ruber declared, "I don't care how long you stay here; I don't want you"; and that Ruber never gave him an opportunity to state his grievance concerning Hatfield. Ruber testified that Kakowski started to tell him that he was doing the best work that he could; that Ruber said, "Suppose you go out and see what you really can do and let us find out"; that Kakowski stood there "arguing and arguing" and finally "said something about his time"; and that Ruber thereupon ordered Trestrail, the shop clerk, to "pay the man off." Trestrail corroborated the testimony of Ruber. We find that the evidence in insufficient to establish that the respondent discharged Kakowski because of his membership in Lodge 1741. Henry Splett.-Splett started working for the respondent in June 1931 and was laid off on July 30, 1932. He was reinstated on August 8, 1933, and laid off on June 22, 1934. On March 3, 1937, he was hired as a chipper in the chipping and cleaning department of the foundry. Splett operated the small saw which was used to cut off "risers" from castings and to cut up billets for forgings. At the end of May 1937, Splett joined the Federation. At the beginning of June 1937, he joined Lodge 1741 . He was active in obtaining members for Lodge 1741, was the shop steward for the foundry, and wore his S. W. O. C. button while at work. On November 14, 1937, Splett was laid off. He was given a "pay off order" and thereupon collected the wages which were due him. The "pay off order" which he signed gave as the reason for the termination of his employment, "lack of work." Splett immediately went to Lansberry, the foreman of the chipping and cleaning de- partment, and protested that in view of the procedure which was being used, his lay-off appeared to be a discharge. Lansberry told Splett that he was being laid off "for a. little while, while there was nothing doing"; and that when an employee was laid off for a week or more he was "given an indefinite furlough" and immediately was paid all his earnings. From the testimony of other supervisors and employees, we And that Lansberry misstated the respondent's policy. The normal .procedure was' that an employee received all the wages which were due him only in the case of his discharge; 283031-41-vol. 20-75 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while in the case of a lay-off he would have to return to` the plant on the next pay day and receive his wages in the 'regular pay' line. Three other chippers in Lansberry's department were laid .off at the same . time as Splett. The record does not indicate the manner in which-they received their last wages. Lansberry testified that Splett "was one of the last men hired, and ' I . had to lay him off. I had to reduce the gang." No new chippers were hired in Lansberry's.department after November 4, .1937. Two of 'the chippers who were laid . off with Splett - were, re- instated during May 1938. Lansberry testified that each of them .had "at least 20 years' service with the company." We find that the evidence is insufficient to establish that the re- spondent laid off Splett' because of his membership in Lodge 1741. IF. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent 'set forth in Section III above, occurring in connection with the operations of the re- spondent 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 we have found that the respondent has engaged in certain unfair labor practices; we shall order that it cease and desist there- from. In order to effectuate the policies of the Act, and as _a means of removing and avoiding the consequences of the respondent's unfair labor practices, it is essential that in aid of our cease and desist order the respondent be directed to take certain affirmative action, more particularly described below. We have found that the respondent dominated and interfered with the formation and administration of the Federation and con- tributed support to it. By reason of the respondent's domination and interference, the Federation cannot serve as the freely chosen representative of the respondent's employees. We shall order the respondent not only to cease and desist from such domination and interference, but also to withdraw all recognition from, and com- pletely disestablish, the Federation as the representative of any of its employees for the purpose of dealing with it in respect to griev- ances, labor disputes, wages, rates of 'pay, hours of employment, or conditions of work. We shall further order the respondent to cease giving effect to its contract of October 2, 1937, with the Federation, the amendment and supplement. thereto -of February 14, 1938, any THE BALDWIN LOCOMOTIVE' WORKS 1175 modification, thereof, : and. any new contract concerning grievances, labor disputes, rates of pay, wages, hours of employment, or con- ditions of work which it may have made with the Federation. We have found that the respondent, on May 21, 1937, discrim- inatorily laid off and subsequently refused to reinstate, William A. Siebrecht, Jr.; on June 1, 1937, discriminatorily discharged and sub- sequently refused to reinstate, Cheyney W. Dailey ; on June 25, 1937, discriminatorily laid off and subsequently refused to reinstate, Frank Robinson and Clifford Robinson; and on June 30, 1937, discrimi- natorily laid off and -subsequently refused to reinstate Patrick McGovern, Jr. We shall order the respondent to offer to the above- named individuals, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of pay they have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the respondent's discrimination against him to the date of the offer of reinstatement, less his net earnings 84 during said period. In its brief the respondent contends that As regards each man to whom the Board awards reinstate- ment with or without back pay, it is incumbent upon the Board to establish 'by competent evidence that such man has not lost his employee status by obtaining "other regular and substantially equivalent employment," and that the Board, having failed to sustain this burden by the record herein, is without power to order reinstatement or back pay c6 64 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for the unlawful discrimination against him and the consequent necessity of his seeking employment else- where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and , Sawmill 'Workers Union, Local 2590, 8 N. L. It . B. 440. "Monies received for work performed upon Federal , State, county, municipal , or other work- relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county , municipal , or other government or governments which supplied the funds for said work -relief projects . Matter of Republic Steel Corporation and Steel lVorkers organizing Committee , 9 N. L..R. B . 219, enf'd, as modified as to other issues , Republic Steel Corporation v. N. L. R. B_ 107 F. ( 2d) 472 (C. C. A. 3). 66 The respondent also contends that it was prevented by the Trial Examiner . from in- quiring into the details of the employment obtained by the individuals discharged or laid off, and was therefore unable to prove that they lost their employee status by obtaining other regular and substantially equivalent employment . This contention is without merit. Counsel for the respondent never urged , in,seeking to question witnesses concerning their employment after they were discharged or laid off by the respondent , that it was for the purpose of showing that they had secured regular and substantially equivalent employ- ment. On the .contrary , whenever he expressed. his reasons for eliciting such information, he stated , in substance , " On previous occasions I have indicated my desire to ask prior 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While we do not adopt the view that the obtaining of other regular and substantially equivalent employment deprives the Board of power to reinstate individuals who have been discriminated against for union activities and desire reinstatement,86 the evidence with respect to the employment records of the five above-named individuals since the dates of the discriminations against them would not in any event justify the application of the rule for which the respondent contends.67 William A. Siebrecht, Jr.-About a week after his lay-off Siebrecht obtained work with the S. W. O. C. He remained on the pay roll of the S. W. O. C. until May 30, 1938. At the time of the hearing he was employed by the W. P. A. Siebrecht desires reinstatement. We find that William A. Siebrecht, Jr., has not obtained regular and substantially equivalent employment. Cheyney W. Dailey.-After he was discharged by the respondent, Dailey secured no other employment until June 29, 1938. On that date he obtained work with the W. P. A. which he still had at the time of the hearing. Dailey desires reinstatement. We find that Cheyney W. Dailey has not obtained regular and substantially equiva- lent employment. Frank Robinson.-In December 1937 Frank Robinson obtained a month's employment with the W. P. A. During February 1938 he secured a job with the Mitchell Pipe Fabricating Company of Phila- delphia which terminated in September 1938 because of lack of work. While he was employed by this firm, he "was off three or four weeks due to waiting for material." At the time of the hearing Frank Robinson was unemployed. He desires reinstatement. We find that Frank Robinson has not obtained regular and substantially equivalent employment. Clifford Robinson.-After he was laid off by the. respondent, Clif- ford Robinson secured no other employment until December 6, 1937, when he obtained work at the Scott Paper Company, in Philadelphia. His job with that firm, which he still had at the time of the hearing, was in part night work. There was no testimony offered at the hear- ing that Clifford Robinson does not desire reinstatement 68 We find that Clifford Robinson has not obtained regular and substantially equivalent employment. witnesses what their employment was on the basis of developing fully what contacts they had, all with the view to seeing what possible bias , prejudice, interest , credibility , lack of credibility , and so forth , might be developed, and your Honor has excluded that." ee utter of Eagle-Picher Mining & Smelting - Company, a corporation, and Eagle-Picher Lead Company, a corporation and International Union of Mine, Mill & Smelter Workers, Locals Nos . 15, 17, 107, 108, and 111, 16 N. L. R. B. 727 ; Matter of Continental loom Company, , Inc. and Federal Labor Union No. 21328 , 19 N. L . R. B. 860. m Cf. Matter of Mooresville Cotton Mills and Local No. 1221, United Textile Workers of America, 15 N. L . R. B. 416. 08 Cf. Matter of Eagle-Picher Mining & Smelting Company, a corporation , and Eagle- Picher Lead Company, a corporation , and International Union of Mine, Mill & Smelter Workers, Locals Nos. 15, 17, 107, 108, and 111, 16 N. L. R. B. 727. THE BALDWIN LOCOMOTIVE WORKS 1177 Patrick McGovern, Jr.-About 1 month after he was laid off, Mc- Govern "went to work for the South Chester Tube." This employ- ment continued until October 30, 1937. From December 13, 1937, until March 10, 1938, he "worked on a milk wagon for J. C. Bonsall & Sons." On May 10, 1938, he secured employment with the State Highway Department of the State of Pennsylvania which lasted until December 15, 1938. At the time of the hearing he was doing night work as a machinist's helper at an hourly wage which was less than he had made when working for the respondent. McGovern desires reinstatement. We find that Patrick McGovern, Jr., has not obtained regular and substantially equivalent employment. We have found that the respondent, on and after July 8, 1937, dis- criminatorily refused to reinstate William A. Siebrecht, Jr., because he filed charges against the respondent under the Act. We shall order the respondent to cease and desist from such practices. Since our order below will make provision to remedy the situation brought about by the discrimination against Siebrecht on May 21, 1937, any additional affirmative remedy covering the unfair labor practice of July is unnecessary. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONcLusIONS OF LAW 1. Steel Workers Organizing Committee and Lodge 1741 of the Amalgamated Association of Iron, Steel and Tin Workers of North America, affiliated with the Congress of Industrial Organizations, and Federation of Baldwin Employees are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Federation of Baldwin Employees, and by contributing support thereto, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of William A. Siebrecht, Jr., Cheyney W. Dailey, Frank Robin- son, Clifford Robinson, and Patrick McGovern, Jr., thereby discour- aging membership in Lodge 1741 of the Amalgamated Association of Iron, Steel and Tin Workers of North America and Steel Workers Organizing Committee, and encouraging membership in Federation of Baldwin Employees, the respondent has engaged in and is engag- ing in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By discriminating against William A. Siebrecht, Jr., because he filed charges under the Act, the respondent has engaged in and is 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaging in unfair labor practices, within the meaning of Section 8 (4) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 7. The respondent has not discriminated in regard to the hire and tenure of employment of John Keenan, Frank Enzangio, Mike Mer- lino, Joseph Krulikowsky, Edward F. Moran, Steve Tzap, William O'Donnell, Louis Acenas, Richard McHale, James Durso, Stanley Kakowski, and Henry Splett, and has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, with regard to them. 8. The respondent has not discriminated against William O'Don- nell because he filed charges under-the Act, and has not engaged in an unfair labor practice, within the meaning of Section 8 (4) of the Act, with regard to him. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, The Baldwin Locomotive Works, Eddystone, Pennsylvania, and its officers, agents, successors, and assigns, shall: 1. -Cease and desist from : (a) Dominating or interfering with the formation or administra- tion of Federation of Baldwin Employees, or with the formation or administration of any other labor organization of its employees, and from contributing support to Federation of Baldwin Employees or any other labor organization of its employees; (b) Recognizing Federation of Baldwin -Employees as the repre- sentative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment; (c) Giving effect to its contract of October 2, 1937, with Federation of Baldwin Employees, the amendment and supplement thereto of February 14, 1938, any modification thereof, or any new contract con- cerning grievances, labor disputes, rates of pay,- wages, hours of em- ployment, or other conditions of employment, which it may have made with Federation of Baldwin Employees subsequent to October 2, 1937; THE BALDWIN LOCOMOTIVE" WORKS' 1179, '(d) - Discouraging. membership in Lodge 1741 of the. Amalgamated-: Association of Iron, Steel and Tin Workers of North America and- Steel Workers Organizing Committee, or encouraging membership in Federation of Baldwin Employees or discouraging or encouraging membership in any other labor organization of its employees, by dis criminating in regard to hire and tenure; of employment or any term or condition of employment; (e) Discharging, refusing to reinstate, or otherwise discriminating against any of its employees because he has filed charges or given tes- timony under the National Labor Relations Act; .: (f) Engaging in any manner of espionage or surveillance, or en gaging the, services of any agency or individuals for the purpose of interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to,form, join, or assist labor organiza tions, to bargain collectively through representatives of their own choosing, or to. engage in. concerted activities for the purposes of col- lective bargaining or 'other mutual aid or protection; (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep= resentatives of their own choosing, or to engage in concerted activities for-the purposes of collective bargaining or other mutual aid or pro- tection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : ' '(a) Withdraw all recognition from Federation of Baldwin Em- ployees as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of -employment, or other conditions of em ployment; and completely disestablish Federation of Baldwin Em- ployees as such, representative; (b) Offer to William A. Siebrecht, Jr., Cheyney W. Dailey, Frank Robinson, Clifford Robinson, and Patrick McGovern, Jr., and to each of them, immediate and full reinstatement ' to their former or sub- stantially equivalent positions without prejudice to their seniority and other rights and privileges; and make them whole for any loss. of pay they may have suffered by reason of the respondent's discrimi-- nation against them by payment to, each of them of a sum of money, equal to that which he would normally have earned 'as wages from the: date of the respondent's discrimination against him to the date of the respondent's offer' of reinstatement pursuant t6 this Order, less his net earnings'" during said period; 'deducting, however, ' from the 19 See footnote 64, supra. 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount otherwise due him, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amount..so,. deducted to the appropriate fiscal agency of the Federal, State, county, munici- pal, or other government or governments which supplied the funds for said work-relief projects; (c) Immediately post notices to its employees in conspicuous places throughout its plant and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) to 1 (g) of this Order, both inclusive, and that it will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and that the respondent's employees are free to become or remain members of Lodge 1741 of the Amalgamated Association of Iron, Steel and Tin Workers of North America and Steel Workers Organizing Committee and that _ the respondent will not discriminate against any employee because of membership in these organizations ; (d) Notify the Regional Director for the Fourth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed in so far as it alleges, with regard to John Keenan, Frank Enzangio, Mike Merlino, Joseph Krulikowsky, Ed- ward F. Moran, Steve Tzap, William O'Donnell, Louis Acenas, Rich- ard McHale, James Durso, Stanley Kakowski, and Henry Splett, that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. AND IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed in so far as it alleges, with regard to William O'Donnell, that the respondent has engaged in an unfair labor prac- tice, within the meaning of Section 8 (4) of the Act. MR. WILLIAM M. LEISERSON, dissenting in part : I concur in the foregoing decision except in so far as it dismisses the complaint with respect to the alleged discrimination by the re- spondent against Stanley Kakowski, Henry Splett, and James Durso. I believe that these men were laid off or discharged and subsequently refused reinstatement by the respondent because of their union mem- bership and activities. I would order the respondent to reinstate them with back pay. Kakowski, a skilled worker, had been employed by the respondent for about 20 years prior to his discharge. He was an active organizer for the S. W. O. C. local, and his activity was well known to his- THE BALDWIN LOCOMOTIVE WORKS 1181 immediate superior, Hatfield, a member and active supporter of the Federation who was violently opposed to the S. W. O. C. On the morning of his discharge Kakowski voluntarily went to see Ruber, the general foreman of the boiler shop, to complain of the abusive treatment he was receiving at the hands of Hatfield. Ruber called in Cox, the contractor, who, on the basis of a report by Hatfield, informed Ruber that Kakowski had done an insufficient amount of work on the previous day. The Trial Examiner who heard the testi- mony and observed the witnesses did not credit the testimony that after 20 years Of, faithful service Kakowski was discharged because of inability to do his work. He found that Kakowski was discharged because of his union membership and activity. I am of the opinion that the evidence supports this conclusion. Durso and Splett were laid off by Lansberry, foreman of the foun- dry shipping department, on July 6 and November 4, 1937, respec- tively, . allegedly, -because there was a lack of work for them to perform. The Trial Examiner found that Lansberry favored the Federation and opposed the S. W. O. C., that he hired a new man to replace Durso on August 2, 1937, and that work was not irregular or slack at the time Splett was laid off. The evidence establishes that Durso, an active member of the S. W. O. C. who first wore his union button on the day he was laid off, and Splett, the shop steward and an active organizer of the S. W. O. C. local, were laid off because of their union membership and activities, and not because there was any lack of work.