The Greer Steel Co.

National Labor Relations Board - Board Decisions

Apr 25, 1941

31 N.L.R.B. 365 (N.L.R.B. 1941)

In'the Matter of THE GREER STEEL COMPANY and STEEL WORKERS' ORGANIZING COMM1rrEE Case No. C-1560.-Decided April 25, 1.41 Jurisdiction : cold rolled strip steel and limestone products manufacturing industry. Unfair Labor Practices Discrarninations : refusal to reinstate former employees ; refusal to reinstate an employee temporarily laid off; lay-off of one employee, charges of, dismissed. Remedial Orders : reinstatement and back pay ordered Mr. Drexel A. Sprecher and Mr. Harry L. Lodish, for the Board. Stafford c6 Bowers, by. Russell Bowers and Mr. Homer I. N. Stafford, of New Philadelphia, Ohio, for the respondent. Mr. Joseph K. Gaither, of Dover, Ohio, and Mr. A. A. Smith, of Magnolia, Ohio, for the Amalgamated. Mr. H. A. Bradley, of Akron, Ohio, for the Federal Union. Mr. Bertram Diamond, 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 Amalgamated, the National Labor Relations Board, herein called the Board, by Oscar S. Smith, Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated February 2, 1940, against The Greer Steel Com- pany, herein called the respondent, alleging that the respondent had engaged in and was engaging iii unfair labor practices affecting com- merce within the meaning of Section 8 (1) and (3)' and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the-Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent, the Amalgamated, ' On March 10, 1941, the Board, upon appropriate notice, granted a motion to amend the caption and record by substituting Steel Workers' Organizing Committee for the name Tus- cora Lodge No. 173, Ohio, Amalgamated Association of Iron, Steel and Tin Woikers of North America. 31 N L. R. B., No 58. 365 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and upon Federal Labor Union No. 21804, American Federation of Labor, herein called the Federal Union. The complaint, as amended at the hearing, alleged in substance that the respondent, in the operation of its Dover plant, from July 5, 1935, (1) engaged in a continuous course of interference, initiated in Octo- ber 1933, with the self-organization of its employees; (2) until the disestablishment, after November 12, 1937, of the Greer Employees Association, herein called the Association, dominated and interfered with the administration of that organization, formed by the respond- ent in 1933 and 1934; (3) because seven named employees 2 joined and assisted the Amalgamated and engaged in concerted activities for the purposes of collective bargaining and other mutual aid and pro- tection, and also to discourage membership in the Amalgamated and to encourage membership in the Association or in the Federal Union, discriminated against these individuals by failing to give them regular employment, by discharging and laying- off six of them early in 1939 and one early in 1940, by failing to reemploy all but one, and by fail- ing to reemploy that one, except temporarily in the latter part of 1939; and (4) by these and other acts, interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Sec- tion 7 of the Act. On February 10, , 1940, the respondent filed and answer pleading that a prior Board decision constituted res judicata in this proceeding, and denying that it had engaged in the unfair labor practices alleged in the complaint. The plea of res judicata is hereby overruled.3 Pursuant to notice, a hearing was held at New Philadelphia, Ohio, from February 13 to February 22, 1940, inclusive, before A. Bruce Hunt, the Trial Examiner duly designated by the Board. On Feb- ruary 13, 1940, the Federal Union filed a motion to intervene with the Trial Examiner. The Trial Examiner granted the motion. The Board, the respondent, the Amalgamated, and the Federal Union were represented by counsel or official representative and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed these rulings and finds that no prejudicial errors were committed.. The rulings are hereby affirmed. Subsequent to the hearing the respondent submitted a brief. 2 Edgar P. Breitenstein , Clyde Law , Clinton C. Marburger , Albert A. Smith , Neil A. Thorn- ton, Emanuel J Tolotti, Emmet L. True , herein called charging employees 3 See footnote 15, infra. THE GREER OIL COMPANY 367 On May_ 1, 1940, the Board, acting pursuant to Article II, Section 36, of National Labor Relations Board Rules and Regulations-Series 2, as amended, transferred this proceeding to and continued it before the Board for action pursuant to Section 37 of Article II of Said Rules and Regulations and directed that no Intermediate Report be issued, that Proposed Findings of Fact, Proposed Conclusions of Law, and- Proposed Order be issued, and that the parties -herein. should have the right, within 20 days from the date of the said Proposed Findings of Fact, Proposed Conclusions of Law, and Pro- posed Order, to file exceptions and to request oral argument before the Board, and that the said parties should have the right within 30 days from the date of the Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order to file a brief with the Board. The parties having entered into two stipulations for the correction of errors in the -transcript, on June 16, 1940, the Board ordered these stipulations to be made part of the record. On February 17, 1941, the Board issued its Proposed Findings of Fact, Proposed Conclusions of Law and Proposed Order, copies of which were duly served upon the parties. On March 8, 1941, the respondent filed its exceptions to the proposed decision, and on March 19, 1941, submitted a brief in support of its exceptions. In its ex- ceptions and supporting brief the respondent requested that the rec- ord be reopened to receive testimony that, since the hearing, the respondent's operating conditions have so altered as to make it im- possible to comply with the proposed order. The request is hereby denied. Pursuant to notice, a hearing was held before the Board in Wash- ington, D. C., on March 27, 1941, for the purpose of oral argument. The- respondent was represented by counsel and participated in the hearing; the Amalgamated and the Federal Union did not appear. The Board has considered the briefs and the exceptions of the respondent and finds the exceptions, except such as are consistent with, the findings, conclusions of law, and order below, without merit. Upon the entire record in the, case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF TIIE RESPONDENT The Greer Steel Company is a West Virginia corporation engaged in the production and sale of cold rolled strip steel and limestone products. Its principal office and place of business is in Dover, Ohio. It -operates plants in Dover, Ohio ; Detroit, Michigan ; Anderson, 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Indiana;-and Greer , West Virginia . In this proceeding we are con- cerned only with the Dover plant , which produces cold rolled strip ,steel. - The principal raw materials purchased by the respondent for use at the Dover plant consist of hot rolled bands. In 1939 the value of the raw materials purchased was in excess of $200,000. About 30 per cent of the raw materials are purchased outside the State of Ohio. In 1939 the value of the finished products shipped from the Dover plant was in excess of $300,000. About 60 per cent of the finished products manufactured at the Dover plant are shipped to points outside the State of Ohio. IT. THE ORGANIZATIONS INVOLVED Steel Workers' Organizing Committee and Federal Labor Union No. 21804 are labor organizations affiliated with the Congress of Industrial Organizations and the American Federation of Labor, respectively, and admit to membership employees of the respondent at its. Dover plant. M. THE nNFAIR LABOR PRACTICES A. Background Employees of the Dover plant formed the Amalgamated about the end of September 1933. Between then and November 1933 the re- spondent laid off four of the seven newly elected officers of the Amal- gamated. During the same period a number of its supervisory per- sonnel tried to dissuade employees from joining the Amalgamated. Typical of these attempts to counteract the influence of the Amalga- mated- was a conversation between Stone Nyberg, who as master mechanic was in charge of the maintenance department, and Emmet True, an employee under his supervision who had recently been elected financial secretary of the Amalgamated. Shortly before True was laid"hff, Nyberg spoke to him in the plant during working hours. He questioned the benefits that the Amalgamated would bring; disparaged its effectiveness by stating, "You only pay your money in there to those big shots, and it won't do you any good," observed that, "We don't want any trouble here;" and warned True, "If you stay away from there [the Amalgamated meeting] you'll be better off." Because of the lay-off of its officers and its failure to gain recog- nition, the Amalgamated called a strike in the, early part of Decem- ber 1933. After a week a settlement was reached; the respondent THE GREER OIL COMPANY 369 agreed to restore those laid off to its pay roll as business should require. Not until' about March 1934 were three-of the union offi- cers taken back. ` One was never returned to work.4 About the end of January 1934, the respondent sought to under- mine the strength of the Amalgamated by sponsoring a plan for intramural bargaining. Herman C. Cappel, a treasurer of the re- spondent, and in charge of operations at the Dover plant, presented the Greer Plan of Employees' Representation, herein-called the Plan, to a plant meeting of the respondent's employees.' The Plan pro- vided for a Joint Committee composed equally of management and employee representatives; the Joint Committee was to be the chief mechanism for "contact" and the "adjustment of differences" between management and employees. _Cappel also offered to turn over to the proposed organization to administer as it should see fit, a $500 fund which the respondent had maintained for the benefit of its employees. He then put the acceptance of the Plan to a vote. _ Only about 12 employees voted against acceptance; the majority regis- tered the. effects of Cappel's influence. Thereafter the respondent contributed other forms of support to the Plan and sought in divers ways to obtain 'for it the adherence of those who worked at the plant. For example, the respondent of- fered to obtain low-cost insurance on a group, basis for its employees. It coupled acceptance of this offer with approval of the Plan by sending out cards linking both together." It also paid for an ad- vertisement in Dover and New Philadelphia newspapers announcing nominations and elections of committeemen under the Plan. It sent out the ballots for the first election. About the end of March 1934, each employee received from the respondent a letter signed by Cappel, requesting an expression of his preference as to bargaining individually or collectively. William Valentine, an employee of the respondent, had such a letter delivered to him through the mails. It enclosed a ballot permitting a choice between the Plan, the Amalgamated, 'arid individual bargaining, as 4 The respondent ascribed to business conditions its failure to give employment to these men. It appears that in December 1933, there were other employees who were not working, and that some of these did not return to work until after the union officers mentioned But there is some doubt whether the other employees not working in December 1933, had previously been regularly employed , and the four union officers were the only employees laid off by the respondent from the time the Amalgamated was organized to the end of the strike' 5 Cappel's action followed an earlier unsuccessful attempt on his part to secure approval of the Plan by the Amalgamated ° These cards called for the signatures of those who accepted , and read as follows: "I hereby approve the Employees Representation Plan as submitted by the Greer Steel Com- pany , January 20th , 1934, and will furnish necessary information for Group Insurance upon request - 193_- Signed 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD well as a return envelope addressed to Cappel. Ostensibly the poll was a secret one.7 Yet the return envelope sent to Valentine con- tained on the inside a ' faintly inked number, corresponding to his time card number at that time. Similar envelopes received by other employees bore like markings. While Cappel identified the marked envelopes as being of the type sometimes employed by the respondent, he;insistedithat the poll in question and other, polls conducted by the respondent were secret. The record clearly establishes that the re- turn envelopes in evidence emanated from the respondent. No ex- planation was offered by it for the presence of the numbers. Upon the entire record, we find that the respondent surreptitiously sought to ascertain the union affiliation of its employees through this poll. Some time after the first election under the Plan the Greer Em- ployees Association, herein called the Association, took over its ad- ministration. Officials and supervisory employees of the respondent encouraged membership in the Association. Ed Klein, superintend- ent of the rolling department in 1934,,urged -Lloyd Everett, an em- ployee, to use the Association's grievance machinery. Edwin Swift, paymaster for the respondent, spoke to several employees about signing up members in the Association. He told another employee that the respondent needed two organizations at the plant because some of its customers wanted union-made goods, and others did not. O. T. Singer, the respondent's timekeeper, handed out Association membership cards to some employees. In and after the latter part of 1935 the respondent entered into a series of agreements with the Amalgamated," covering wages, hours, and working conditions. Agreements identical with, and parallel to, the earlier of those with the Amalgamated were also concluded be- tween the Association and the respondent. On December 3, 1937, pursuant to a stipulation -executed-by the ,respondent, the Board ordered the respondent to cease and desist from interfering with, restraining, and coercing its employees in the ex-zn , in ercise of rights guaranteed in Section 7 of the Act, to disestablish the Association, and to post appropriate notices.9 The respondent dis- established the Association. The Board also directed an election for the purpose of ascertaining whether or not the employees desired to 7 The covering letter stated , "This is no vote and no signature required , but is only for the purpose of giving the management an idea as to What our employees really want." The respondent refused to contract with the Amalgamated as an organization. The agreements generally stated that they were between the respondent and named parties, "a committee representing a portion of our employees " Agreements with the Association followed the same form. The chief exception to this practice occurred when the Amalgam- ated and the respondent agreed upon a temporary wage reduction in April 1938 , discussed below U Matter of The Greer Steel Company and Tuscora Lodge No . 173, Amalgamated Associa- tion of Iron , Steel & Tin Workers , 4 N. L R. B 333. THE GREER STEEL COMPANY 371 be represented by the Amalgamated. The • election, resulted in the defeat of the Amalgamated. The respondent did not maintain an impartial attitude prior to the election. Thus Cappel told William Gray, who was then a member of the Amalgamated committee, that Gray and Lloyd Everett, a member of the Amalgamated at that time, were the only ones "he was uneasy about in voting f8r the union." He asked';Grayrto tell Everett that if the Amalgamated won the election there would be no_ work. He also requested that Gray "see the other fellows." 10 About the end of April 1938, the Amalgamated'agreed with the respondent to a 15-percent wage reduction for the months of May and June." In June the Amalgamated tried without success to obtain a renewal of its contract. Thereafter the Amalgamated arrived at no further general agreements with the respondent concerning wages, hours, and working conditions. On July•.1; 1938, the respondent closed down its plant, attributing stidli'shut-down to "bad business." Thereafter, the Amalgamated began to picket the plant. In August the respondent submitted re- opening proposals to its employees and to the Amalgamated. The proposals embodied provisions for a wage cut. They were not ac- cepted by the Amalgamated. About a week before the plant re- opened, while there was still a picket line around the plant, Cappel attended a dinner with seven of his employees, all of whom were members of Amalgamated.12 None was an officer. He told them he wanted to get the mill going and explained the reasons for a re- duction in Wage. The expenses of the dinner were defrayed by him. Emanuel Tolotti, one of the Amalgamated members at the dinner, told Cappel that they could -do nothing until the matter had been re- ferred to the union committee. The respondent negotiated wage re- to It is worthy of note that in 1936 or 1937 the respondent circulated a leaflet titled "What Does the Wagner Bill Mean to Employees " The contents gave a misleading picture of the rights guaranteed in the Act. Cf Matter of Jasper Blackburn Products Corp. and District No 9, International Association of Machinists , a/flbated with the American. Feder- ation of Labor, 21 N L R B 1240 11 The contract between the respondent and the Amalgamated , which was limited to run from July 1, 1937, to June 30, 1938 , provided that wages were to be increased or decreased "when made general by . . competitors . . About the beginning of April 1938, the management of the respondent summoned the employees of the plant into its offices in small groups . It proposed to them a wage reduction The Amalgamated objected to being left out of the negotiations After having met with all the employees , the management con- ferred with a committee of the Amalgamated The committee refused to accept any wage reduction The respondent thereupon posted a notice advising its employees of the refusal and stating that under the circumstances it had "no other alternative but to operate such mills'and ' equipment, and to such capacity, as competitive conditions will permit ." After further conferences , the- Amalgamated agreed to the cut. A few days before the posting of the agreement 36 employees signed a petition revoking their designations of, the Amalgamated 12 Cappel denied, knowing their affiliation Credible testimony indicates that one Ross, proprietor of the establishment , empowered one of the men on a list suggested by Cappel to invite the rest on the list and any others he might choose 441 8 43-4 2-vol 31--25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ductions with individual employees and the plant reopened on September 14, 1938. During and after th8 shut-down the respondent, through its super- visory employees, made statements to employees calculated to under- mine the Amalgamated and its leaders.13 Lloyd Everett, an employee, testified that George Wolf, superintendent of the rolling department, told him, during the summer of 1938, that there ought to be a change in Amalgamated leadership. Wolf and Ralph Everett, said to have been present contradicted this testimony. We find that Wolf in sub- stance made the statement in question because, among other reasons, Lloyd Everett has revoked his authorization of the Amalgamated and joined the Federal Union. Ralph Everett, on the other hand, was active in organizing the Federal Union, and he and Wolf had their credibility impeached in other respects. Lloyd Everett also testified that Wolf said to him, some time after the mill opened, that Mr. Greer, president of the respondent, would not deal with the C. I. O. any, more. Wolf controverted this testimony. Upon the entire rec- ord we find that Wolf in substance made the statement in question. About the same time, Stone Nyberg, the master mechanic, tried to get Phillip Hammerstrom, then a union member, to work at a lower wage. The Amalgamated-committee had urged Hainmerstrom not to accept the cut. Nyberg taxed Hammerstrom with being a "damn fool for listening to the committee." He also disparagingly remarked, about two union representatives who passed, "There are the big shots from the Amalgamated," and obtained from Hammerstrom the names of the Union men who had advised him.14 On January 17, 1939, pursuant to a stipulation executed by the re- spondent, the Board ordered the respondent to cease and desist from interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act and to post appropriate notices.,, On February 7, 1939, the respondent concluded an exclusive recog- nition contract with the Federal Union, after that organization had presented cards showing that it represented about 70 or 75 per cent of the respondent's employees. The validity of this contract is not in issue. After February 15, 1939, the date of the lay-offs discussed 13 The Federal Union began its organizational activity among the respondent's employees,, during the shut-down 14 Cappel likewise disparaged the union leadership in a conversation with Gray at the end of 1936 or in 1937, when Gray was on the Amalgamated committee Ile impressed upon Gray his opinion that the committee was "hard to get along with" and appealed to him to do everything within his power to "keep down trouble " is Matter of The Greer Steel Company and Amalgamated Association of Iron; Steel d Tin Workers of North America, etc, 10 N. L. R. B. 1233. The complaint also alleged unlawful discrimination against five named employees. These employees had refused to testify in the cited proceeding. The Board order dismissed this part of the complaint. None of these five employees is the subject of complaint in the present proceeding THE GREER STEEL COMPANY 373 below, attendance at meetings of the Amalgamated fell off decidedly. In'the fall of 1939 the respondent removed a plant bulletin board that had been devoted to the use of the Amalgamated , although it retained one for the convenience of the Federal Union. Gray testified that shortly before the hearing in this case, Cappel on different occasions engaged in the following conduct. He pressed Gray to tell employees who were subpoenaed, not to appear at the hearing: Knowing that Gray was going to see the attorney for the Board, Cappel urged him to explain to the latter that the charging employees were "no good ," and that the Board attorney was going to lose the case . He also informed Gray that so far as the charging employees were concerned , the hearing "would not change the picture, any." Cappel denied that the foregoing, actions had taken place. Upon the entire record we credit the testimony of Gray and find that Cappel in substance made the statements attributed, to him. B. Discrimination in regard to Aire and tenure of employment 1. Breitenstein , Law, 'Marburger , Thornton , and Tolotti These five charging employees who had come to be employed on the respondent 's 16-inch mill were members of the Amalgamated. Three of them, Breitenstein, Law, and Marburger, at times repre- sented the Amalgamated . Tolotti and Breitenstein were among those who attended the above-mentioned dinner given by Cappel in the fall of 1938. The fifth, Thornton, testified that about a month before the election of December 1937, Paymaster Swift urged him to use his influ- ence to "keep down trouble " at a meeting of the Amalgamated. Al- though Swift denied this testimony , we find on the entire record that Swift in substance made the statement testified to by Thornton. The respondent realized after 1925 that the 16-inch mill was obso- lescent. Subsequently the number of shifts on the 16-inch mill de- clined from three to one . During 1935 and 1936 12 employees were transferred from the 16-inch mill to the 22-inch mill , leaving as the only employees on the 16-inch mill the five charging employees herein under consideration . The Amalgamated did not object to the selec- tions for transfer and it does not appear that the respondent refrained from transferring the five charging employees from the 16-inch mill because of union membership or activity . Upon , complaint of the Amalgamated and the five charging employees that work on the 16- inch mill was irregular and that their wages were too low the respond ent in March 1937 increased their wages , promised to try to obtain more orders for the 16-inch mill and thereafter placed 'slightly better orders on that mill . On or about August 6, 1937, the respondent per- 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manently discontinued the use of the 16-inch mill because it had become obsolete. Pursuant to the terms of the contract then in existence between the respondent and the Amalgamated, these charging employees because of their seniority were placed at the head of a preferential employment list known as the "extra list." These five employees remained on the extra list. On January 1, 1938, the respondent abolished the extra list on the asserted ground that the provisions of the Ohio Unemployment Com- pensation Insurance Law, placing a premium upon a stable and un- fluctuating working force, made such action economical. But on the protest of the Amalgamated and following the intervention of a fed- -eral conciliator, the respondent restored the extra list early in June 1938. Following the execution of the contract with the Federal Union on February 7, 1939, the respondent informed a number of regular em- ployees'and also all the employees on the extra list that they were laid off. The notice received by each of thecharging employees stated that when his services were required he would be given "due notice." Although the five charging employees had greater seniority than a number of regular employees retained in the respondent's employ- ment, the respondent had not in the past followed the practice of dis- placing regular employees in favor of extra employees on the ground of greater seniority, and for some time it had been attempting to eliminate the extra list, apparently because it thought that by this device it would diminish the cost to it of the State unemployment compensation insurance. Under the provisions of the Federal Union's contract with the re- spondent, the five charging employees, as extras, and therefore as "men not holding regular jobs on the effective date of this agreement," re- tained, their departmental seniority rights for 6 months from Febru- ary 7.16 Thus their departmental seniority rights would expire Au- 'gust 7. The contract also provided that a transfer from one depart- ment to another was to be made only with the consent of the trans- feree. In such case he was to be treated as a new employee for the purposes of seniority standing within that department.14 According to the same agreement laid-off employees not recalled for 6 months ie The applicable provision of the contract reads as follows : All men not holding regular jobs on the effective date of this agreement shall retain their departmental seniority service rights for six (6) months from date. ^z The applicable provision of the contract reads as follows The fil[l]ing of vacancies, or promotions, shall be confined strictly to department, classified as' (a) Recoiling and Pickling, (b) Rolling, (c) Annealing, (d) Shipping, and (e ) Maintenance and Boller House, but should an employee consent to be trans- ferred from one department to another department, such employee shall hold the same seniority rights in that department as a new employee . THE GREER STEEL COMPANY 375 were no longer to be considered employees."' By virtue,of this pro- vision, A.. A. Smith, whose case is discussed below, and the five charging employees with the exception of Marburger remained on the respondent's pay roll until September 1, Marburger remaining thereon until November 1.19 In March, Foster Smith and Ed Spelman, who had been laid off in February and are not charging employees, were recalled as police- men or watchmen. Thereafter both were giver; positions on the 21-inch. .mill, which is in the rolling department. It is not clear whether they were employed on the 21-inch mill before August 7. A third, R. Schnittke, released in February and not a charging employee, was made an apprentice roll grinder in the rolling depart- ment on ?March 1; he was the son of G. Schnittke, formerly president of the Greer Employees Association. It is not certain that the -position of apprentice roll grinder is one which the charging em- ployees might normally be expected to fill.'? None of these three employees who returned to work had any seniority within the rolling department, since they had been employed in another department. The departmental seniority of those laid off from the rolling depart- ment does not appear. However, since the five charging employees were released from that department, they all had more seniority there than persons transferred from other departments. From March to September 1 the respondent added only two other persons to its active force; both were taken on in the, latter part of August.21 Yet in July and August the plant had been called upon to, handle an ihcreased volume of business on quick demand. ' The respondent, instead of recalling laid-off employees upon the expan- sidn of operations, as it customarily had done, resorted to overtime work, particularly in the rolling and shipping departments. This was the first time it had made any substantial payments for overtime "The applicable provision is as follows If an employee be laid off and not called back by the Company for six (6) months, he shall no longer be considered an employee of the Company is Breitenstein and Law were laid off as of February 11, Tolotti as of February 15, and Thornton and Marburger, who had been incapacitated, as of March 1 and May 1, respectively According to Cappel, the respondent followed the practice, prescribed by its contract with the Federal Union, of keeping laid-off employees on its pay roll for 6 months During that time they were subject to being summoned when needed. After that time, the respondent contends, they were regarded as persons who would have to file application in order' to obtain employment This contention is discussed below in further'detail 20 According to Cappel, he chose Schnittke from the list of'all employees laid off during February because he thought he would be the most capable young man for the job. The Federal Union contract does not mention ability as a factor in the filling of vacancies. At the very least it requires that those having seniority rights in,the department in which the vacancy occurs , be considered first and be given a substantial preference . Apparently, however, a ,young man was desired. 21 H. Straub was reemployed to the annealing department on August 22 J Judy was hired to the maintenance department on August 28 August 15 marked 6' months from Smith ' s lay -off from the latter department , where he had been a regular employee 376 DECISIONS QF NATIONAL LABOR RELATIONS BOARD purposes. Cappel asserted that the increase in overtime during -July and August was due to a rush order and to the fact that the respond- ent found it more economical to pay overtime to its existing staff than to take on additional employees. Nevertheless, after September 1, that is, after A. A. Smith and all of the five charging employees but Marburger had lost their departmental seniority rights and were no longer on the pay roll, and before January 1, the respondent took on about 37 persons.22 At the same time overtime declined in the shipping department. Cappel attempted to explain the subse- quent increase in force by asserting that in September, October, and November the rolling department worked on a large order which the shipping department had to get out as quickly as possible. This does not explain the delay in increasing the staff of the rolling de- partment until after September 1 and as to the shipping department it conflicts with Cappel's alleged reason for using overtime instead- of enhanced personnel during the rush order of July and August. Of the 12 who were notified in February of their release from the extra list and 'who are not charging employees, one, was recalled in March 23 and seven were taken back in September.24 Cappel, in charge of hiring, furnished the causes for the failure to reemploy .three more : one was an unsatisfactory workman 25 and two were un- suited for the available mill positions.26 The fourth had not worked in the plant since June 1938.27 When the plant reopened after the 1938 "shut-down, he had employment elsewhere. Regular employees notified of their lay-off'in February were like- wise rehired. - Excluding A. A. Smith, a charging employee, there were 12 regular employees who had been informed of their release in February.211 Two were reemployed in March'29 one in August,3o and five in September.3' Of 'the four who were not reemployed, one had' left the community in, the early • part of 1939,32 another was a 22 In September alone five employees were added to the rolling, six to the shipping, two to the annealing , and three to the maintenance departments The statistics for the follow- ing months are : rolling : October-3 , November-4 , December-0; shipping : October-1, November-5, Decembc r-4 ; annealing : October-0 , November-1, December-0; mainte- nance • October-2, November-1, December-0. 23 F. Smith , discussed above. 24 H Shull, R. Beitzel, R Demuth, W. Strine, D. Engler , E. Cree, and J. Luthy. 2e P. Stokes. - 110 Erickson and I. Bear. 27 C. Espenscheid. "Board Exhibit 5-C shows 15 regular employees laid of since January 1 , 1939. But E Howard was dismissed in January 1939 , after completing a special task for which he had been hired ; G. Kapp left the respondent ' s employ in the same month. 20 R. Schnittke and E. Spelman , discussed above. 2° H. Straub. C. Burson , S. Hoover, Jr ., R Merkel, R . Pollock, W . Walters. 32 W. Zumbach. , THE GREER STEEL COMPANY 377 member of the Amalgamated according to Cappel,33 who, together with "a third'34 had been laid off from the pickling and recoiling department, to which no employees were subsequently rehired.35 The fourth, and last, had left the respondent's employ in June 1938 for a better job.36 - In short, of the 24 who were notified of their release in Febru- ary 1939 and who are not charging employees, 16 were reemployed. The record contains satisfactory explanations as to why the bulk of the remaining eight.were not reemployed. In addition, 23 individuals not previously employed by the respondent and one former employee who had ceased to work for the respondent considerably before February 193931 were added to the pay roll between August 28, 1939 and January 1, 1940. Of the 16 non-charging employees who in February 1939 were given notice of termination of employment and were subsequently reemployed, three were reemployed in March,'one in August, and all the rest in September.38 The other former employee taken back was restored to work in September. But 21 of the 23 new employees hired by the respondent about the end of 1939 were not hired until October and the succeeding months. From these facts we conclude that before hiring new employees, the respondent reinstated substantially all non-charging employees notified in February of their release who were available and considered suitable for positions then open. In contrast stands the ' treatment of the five charging employees, with whom we are now concerned, and A. A. Smith, dealt with-below. None of them was reemployed, with the exception of Marburger, - Marburger was not, reinstated until November, although only tem- porarily, and in contrast to the other former employees who were reemployed by the end of September. In length of service with the respondent the five charging employees and Smith surpassed all of the employees who received lay-off notices along with them and all 11 C Lebold . C. Burson , whom Cappel named as an Amalgamated member he bad reem- ployed , was a former charging employee who had failed , shortly after his lay -off, to press his charges of discrimination . According to, Smith, Burson had not been connected with the Amalgamated since that time and had told Smith , before his failure to prosecute the charge of discrimination , that he had several tunes sought reinstatement from the respondent s, R. Bear Other employees laid off from the pickling and recoiling department , who were reem- ployed , sere Spelman and Schnittke. They were reemployed in the rolling department earlier in the year. Finally these was Burson , who was reemployed in the shipping depart- ment For details concerning him see supra, note 33. Zumbach, who was the only other employee laid off from that department , was not reemployed at an , see note 32 WV Shonk . He had requested that the respondent recall him if it would be to his ad,antage A Hartman had not worked for the respondent since July 1938 5 Nine of the twelve were reinstated on September 5. The other three were reinstated on September 14, 18, and 19. - 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the former employees reemployed after the February reduction in force. The respondent 's explanations for its conduct are unconvincing. First, Cappel asserted that, because none of the charging employees had filed applications for employment , they, apart from Marburger, were not considered for reemployment after 6 months from their release. He contended that their notices of lay-off, which stated that they would be called when needed , were to be construed in the light of the provisions of the Federal Union contract; that after the 6-month period to which the contract limited their status as employees they were in the same position as any other individuals who might desire employment . He testified that the respondent's practice has been to hire on filed application only and that this practice was followed with regard to all who were employed in the latter part of 1939. We are inclined to doubt the universality of the requiieinent. The respondent , produced none of the application blanks presumably filed by all of those whom it had retained . Moreover , there is another reason for our doubt . Prior to 1939 lay-offs were generally tem- porary. Those laid off were recalled not long afterwards without application . If, after the Federal Union contract , laid-off employees not reinstated within 6 months were expected to make application for employment , the requirement was a novel one in so far as they were concerned . Although the contract was posted it does not in terms require that application for employment or reemployment ,be made and there does not seem to have been any publicity given to what the respondent contends it entailed-the necessity for application by former employees . The charging employees relied upon the re- spondent 's assurance that they would be notified when needed. Mar- burger's first knowledge of the application requirement was gained at the hearing . It seems improbable that accident alone could account for the fact that all the charging employees should have fallen afoul of this requirement , while the great bulk of those released with them were either reemployed , or denied employment for reasons other than their failure to file applications. The circumstances of Maiburger's reemployment strengthen the conclusion that the respondent took the initiative in the. r6instate- rnent of at least some of its former, employees . He was restored to the pay roll after November 1, when his employee status under the Federal Union contract was at an end. Partially disabled as a result of a mill injury, and a neighbor of Cappel 's, he was approached by Cappel and asked whether he would like to work a few turns: Marburger indicated that he was willing. Thereafter , without any request on Marburger 's part, Cappel forwarded to him an applica- THE GREER STEEL COMPANY 379 tion blank. Cappel cited Marburger as an exception to the practice of requiring the applications to be filed: But, in testifying for the respondent, Cappel named him as a union member who had "made application" for employment prior to being taken on by the respond- ent. This construction of the requirement reveals, we think what the 'facts set out above indicated : the filing of an application was not a necessary condition for being considered for employment by the respondent. It buttresses the inference that the respondent, on its own initiative recalled some, at least, of its farmer employees. As early as June 25, 1939, the respondent was presented with a copy of the first charge in this proceeding.39 Upon the basis of the foregoing considerations and° of the whole record we find inadequate the defense that Thornton, Tolotti, Breit- enstein, Law, and Smith were not rehired because they had not filed applications. Cappel' also contended that while Thornton, Tolotti, and Breiten- stein were not reemployed because they had not filed applications, they were unsatisfactory workmen and that positions for them might not have been-available; that Law was not a good mill man and was not considered for a crane job because he was operating a crane elsewhere, and because he had previously objected to working on a crane for the respondent; that Marburger was employed on a farm, and therefore was deemed ineligible for it steady job at the plant. We find these contentions insufficiently established. It is not claimed that the considerations advanced with regard to Thorn- ton, Tolotti, and Breitenstein were in fact operative. Moreover, in so far as Cappel alleged that other reasons prevented the reemploy- ment of Law he was inconsistent, since he had previously laid that circumstance to Law's failure to file an application for employment. He thereby indicated the weakness of the respondent's attempted explanations. No satisfactory evidence of the alleged inefficiency of Thornton, Tolotti, Breitenstein, or Law was presented. On the contrary their advancements, pay increases, and long periods of service with the respondent lead us to conclude that the respondent found them efficient employees. There can be,no doubt that there were available positions to which the charging employees could have been reemployed. Both prior to their employment on the 16-inch mill and during their employment as extras the five charging employees had worked at divers jobs in the rolling department and in other departments: on the different mills, the bundler, the slitter, the shears, and the stock house crane. 39 Only discrimination in the lay-off of Thornton, Tolotti, Breitenstein, Law, and Smith was then charged As for Marburger, at the time we find he was discriminated against the respondent was committed to summon him when his services were needed. 380 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD In September alone five positions in the rolling department were filled : three in the shears, one on the bundler, and one on the slitter. Between the discontinuance of the extra list and the end of Novem- ber 1939, 15 positions in all in the rolling department were filled. Not only were there positions for which the charging employees were specifically qualified, but new employees were given jobs for which they possessed no particular experience. Of the 23 new em- ployees and the 1 former employee laid off before February 1939, who were added to the force, about 18 either had no previous expe- rience, to Cappel's knowledge, at the jobs which they were given, or had not previously worked at the plant and were not credited with any prior experience. Of the 16 former employees notified of their release In February who were taken on by the end of September, 10 were placed in departments other than those from which they had been laid off-. Of the 15 positions in the rolling department filled after the discontinuance of the extra list, 4 went to new employees who were inexperienced, 2 to new employees not shown to have had any experience, 5 to former employees laid off from different depart- ments, and 4 to former extras laid off from the rolling department of whom Marburger was one.- In short, contrary to the respondent's contentions many positions for which the charging employees might have been retained were available, both in September and in succeeding months. In numer- ous instances the respondent took on persons with- less experience or no former employment with it. Finally, we find unsatisfactory the respondent's contention that Marburger was ineligible for a steady job at the plant because he was employed on _ a farm. In fact, Marburger's obligation on the 93-acre farm where he lived was such that he was bound only to see that the work on it was performed. Marburger testified without contradiction and we find that his 16 year old boy was capable of doing all the necessary work-a fact which Marburger's lessor, Gas- ser, understood. In Cappel's conversations with Marb'urger and with Gasser, some time prior to Marburger's reemployment, Cap'pel was merely told that Marburger was supposed to do farm work and that lie could also work at the mill. Cappel does not seem to have made any inquiry into the amount of the necessary work or the possibility ,of its delegation. Nor was there much opportunity for these matters to be explained; the conversations were dominated by Cappel's con- 40 The figures are as follows : four bundler positions to one employee from shipping, one from rolling ( Marburger ), and two new employees not credited with experience ; two posi- tions on the 9-inch mill to two new inexperienced employees ; two positions on the slitter to one from the boilers , and one new inexperienced employee ; three positions on the shears to three from rolling ; one mill or bundler to one new inexperienced employee THE GREER STEEL COMPANY 381 tention that he could only offer temporary employment to Marburger. It is significant, moreover, that neither during September nor Octo- ber, when former and new employees were retained, does it appear that Cappel' confronted Marburger with a genuine choice of a steady, or even of a temporary job. Yet'in those months Marburger was entitled to be notified when his services were needed. The resort to overtime instead of an increase in staff before Sep- tember 1, the reemployment of substantially all the non-charging employees released with the charging employees who were available and considered suitable for positions then open, the employment of another former employee, the subsequent employment of new em- ployees, the absence of non-discriminatory cause for the failure to reemploy the charging employees, the initiative exercised by the respondent in at least some of its additions to the pay roll, the rela- tive inexperience and lack of service with the respondent of most of the persons added to the force and the other circumstances heretofore given, all lead to the conclusion that the five charging employees were not given employment in September along with others similarly situ- ated because of their union membership and activity. The history of labor-relations at the respondent's plant has-shown that the respond- ent would be willing to eradicate the last traces of Amalgamated influence from among its employees. The five charging employees, by reason of prior controversies over their status between the respond- ent and the Amalgamated, were a nucleus closely identified with that organization, and represented, to the respondent, a known focus of difficulty. We find, therefore, that on the earliest ascertainable date, namely, September 5, 1939, when most of the former employees similarly situated were restored to the pay roll, the-respondent dis- criminated against Thornton, Tolotti, Breitenstein, Law, and Mar- burger, in regard to hire and tenure and conditions of employment, thereby discouraging membership in the Amalgamated, and that the respondent thereby interfered with, restrained, and coreced its employees in the exercise of rights guaranteed in Section 7 of the Act.41 a See National Labor Relations Board v. Waumbec Mills, Inc, 114 F (2d) 226 (C C. A. 1), enforcing as modified in a particular not here relevant, Matter of Waumbec Mills, Inc. and United Textile Workers of America, 15 N. L. R B. 37 ; Matter of Olympia Shingle Company, Capital Shingle Co ., Inc, and Shingle Weavers Local Union , 2516, 26 N L. R B. ; Matter of Milan Shirt Manufacturing Company and Milan Imps vement Company and Amalgamated Clothing Workers of America , 22 N L R B 1143. Cf. Phelps Dodge Cor- poration V. National Labor Relations Board , 313 U S 177, modifying and remanding 113 F ( 2d) 202 (C C. A 2), cert. granted , enforcing as modified , Matter of Phelps Dodge CoriJoration and International Union of Mine , Mill and Smelter Workers ,- Local -No 30, 19°N. L . It. B. 547; National Labor-Relations Board v National Casket Co ,- Inc, 107 F (2d) 992 (C. C A 2), enforcing as modified , Matter of National Casket Compa4y, Inc and Casket Makers Union 195 ,79, 1 N L . R B 963 , 12 N L R B. 165. I 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Albert A. Smith Albert- A. Smith had been employed by the respondent since 1928, He was laid off along with other regular employees on February 15, 1939, and was not subsequently reemployed. He has been president and a very active member of the Amalgam- ated since its organization at the Dover plant in 1933. He was one of -the Amalgamated officers whose lay-off by the respondent precipi- tated the 1933 strike hereinbefore described. In the latter part of 1937, Thornton testified, Ed Swift, the paymaster, told him that Smith was a "radical." Swift asserted that he remembered nothing of 'what- Thornton had testified to, but he did not deny conversing with him, nor did he deny other parts of the same conversation which we have referred to above. For these reasons, and upon the basis of the entire record, we find that.Swift did make the statement in question. William Gray stated after Smith's lay-off, on one occasion to. Cappel, and on a later occasion to Swift, that Smith should not be made to "take the rap" for whatever the Amalgamated had done. Despite the denials by Cappel and Swift of the answers attributed to them by Gray, we find because of our judgment of the relative credibil- ity of Gray and Cappel, and because of the other statements made by Swift, and of the course of events as revealed by the record, that Gray's testimony was accurate. In response, Cappel conceded that Smith had not caused much of what had occurred, but asserted, "He could have kept it from happening." Swift's answer was that Gray could. not tell Cappel what Gray had told him. Gray replied that lie knew that, having already tried to do so. Swift then added, "I believe he [Cap- pel] would shut.the mill down before he would let him [Smith] work.-" Smith did both electrical and non-electrical maintenance work under the supervision of the master mechanic after he was hired by the respondent. At that time the respondent had not yet employed any millwrights for the purpose of performing non-electrical maintenance functions. About 1931 Smith was given the classification and rate of pay of an electrician, but his duties remained the same. In 1935 the respondent retained three millwrights, in order to allow machinists to devote all of their time to their machines. It agreed with the machin- ists, however, that if their work-became slack they could reassume the maintenance tasks taken over by the millwrights. It is not clear whether in 1938 Cappel reaffirmed, or refused to_ commit himself on reaffirming, this understanding, or whether the understanding applied to electricians. Throughout the entire term of his employ, Smith continued to do non-electrical as well as electrical work in the maintenance depart- ment. He did the work of the, millwrights when necessary. He assisted in the installation of machinery and in the construction of a THE GREER STEEL COMPANY 383 revised generator room. 1-le did some mechanical work in the machine shop. In the lay-off following the Federal Union contract, the respondent released two of its three electricians, and at the time of the hearing employed only one electrician. We need not examine the economies claimed to have been effected by the reduction in the number of the electricians, since Smith's lay-off and discharge was not a necessary consequence of this reduction. Smith, whom the respondent con- sidered a very efficient electrician was laid off with P. Pollock, his junior. Pollock was not a member of the Amalgamated. The elec- trician 'retained was R. Davis, Smith's senior. Davis 'had ceased to be active in the Amahamated after December 1938. Although the Federal Union contract called for lay-offs in accord- ance with-efficiency, ability, and length of service, the facts show that, without explanation or warrant, the respondent confined the operation of this policy within the electrician classification. It retained in the maintenance department G. Schnittke, M. Fletcher, and G. Schwarm, who were the millwrights added in 1935 and who,- were junior to Smith. G. Schnittke was the former president of the Greer Employees Asso- ciation. Al. Fletcher had been a member of the Amalgamated but was apparently not a member in February 1939. G. Schwarm was not an Amalgamated member. Furthermore, four of the five charging employees who had refused to testify in the November 1938 proceeding, and had .left the Amalgamated, remained machinists in the mainte- nance department. Two of the four, J. Moffit and J. Lindberg, were junior to Smith. Smith was able to do, and had done, millwright work. He had also done construction work comparable to that done by machinists. The respondent's understanding with the machinists manifested a recogni- tion on its part that, with regard to lay-offs, seniority was operative between, and not only within, classifications. Neither the Federal Union contract provision nor the explanations by respondent's officials of the long standing policy which it embodied 42 restrict the application of the rule within particular job classifications. The respondent did not advance the particular basis on which it made the February reduc- tion in force. We are unable to account for the lay-off of Smith and the retention of junior employees whose positions lie could fill, except by his union affiliation. The background'of-labor relations'which we have surveyed fortifies. this conclusion. We are further persuaded of its correctness because 42 Cappel has stated that when efficiency and ability were equal , length of service n ould control Foremen Nebel and wolf formulated the policy to be that the person hired last was first to be laid off 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the reemployment, in the circumstances heretofore detailed, of the bulk of the employees released in February, as contrasted with the failure to recall Smith and the five former extras. , Smith was much senior to the regular, employees laid off with him. - Like the five charging employees heretofore discussed, he relied upon the respond- ent's assurance that he would be summoned when needed and did not file an application for employment after 6 months without work .13 The respondent gave no different reason for failing to recall Smith than we have already discarded during the consideration of the cases of the first five charging employees. In particular, it is significant that Pollock, the electrician junior to Smith, who was released with him, was reemployed in the annealing department in September. Cappel implied that Pollock had filed an application and was reem- ployed because he could operate a crane. But we have found that, at least in some instances, the respondent recalled former employees. Moreover, it appears that Pollock had not previously worked in the annealing department or operated a crane at the plant and that Cappel -had the foreman inquire of Pollock whether he could do so. Smith was not asked, however. In addition two apprentices were added to the machine shop in August and September. Both were new employees, and as to, neither was there any showing of previous experience. These facts, and the others set out above in connection with the cases of the five former extras, persuade us that Smith was discrimi- nated against when he was denied reemployment as well as when he was laid off and discharged. As president of the Amalgamated he was a likely target for the respondent's desire, disclosed in the background set out above, to eliminate that organization from the Dover plant. Under the circumstances disclosed by the record, we find that, by laying off Smith on February 15, 1939, and by' refusing to reinstate him thereafter, the respondent has discriminated in regard to his hire • and tenure of employment, 'thereby discouraging membership, in the Amalgamated,and interfering with, restraining, and coercing its employees in the exercise of .rights guaranteed them in Section 7 of the Act. At the time of his lay-off Smith's earnings were 80 cents an hour, or approximately $33.00 for his average workweek of about 41 hours. On October 9, 1939, he secured employment with the Pleasant Valley Mining Company at Magnolia, Ohio. His wages there came to ap- proximately $140.00 a month plus an additional amount for overtime. 43'At the end of the 6-m6th period the respondent shipped Smith ' s tools to him, although lie was in New Philadelphia , the town adjoining Dover, and could have been called to fetch them.- ) - 1 THE GREER STEEL COMPANY 385 His present income, therefore, is slightly better than what he was earning at the Dover plant, and his work is steadier. But he desires to be reinstated to the respondent's employ. By his discharge he lost substantial seniority rights. Because of the nature of his new employment he was forced to move to New Magnolia, about 16 miles from Dover and New Philadelphia, where he had made his home for about 12 or 15 years.44 He had to leave behind him a son who was finishing high school in New Philadelphia. All of his friends live in Dover and New Philadelphia and he drives there often both to visit them and to do his shopping; the shopping necessitates several trips a week. In view of these facts, we find that Smith has not secured substantially equivalent employment 45 3. Emmet L. True Emmet L. True was employed as a carpenter and general handy- man in 1922' and worked almost continuously -until his lay-off on January 1, 1940. ' He has been the financial secretary and an otherwise active member of the Amalgamated since its inception in 1933, After Nyberg's effort to prevent him from joining the Amalgamated he was laid off by the respondent with three other union officers in 1933. Following the Board proceeding of November 1938, at which several employees had refused to testify, Nyberg asked one of them how True felt about his failure to do so. At the time of the lay-off in question True's super- visor told him he had argued for True's retention but that he had been ordered to lay True off. True received the usual letter telling him that he would be notified when his services were required. Although he was on the pay roll at the time of the hearing, he received no work subsequent to his lay-off. Along with True the respondent released I. Walters and W. Wal- ters, its other two carpenters. At the time of the hearing there were no carpenters in the plant. The two carpenters laid off with True were not members of the' Amalgamated. , One was senior, and one junior to True. There has been no showing that True was qualified for the po- sitions of any junior employees retained while he was laid off. We find that the evidence is insufficient, to sustain the allegation that True was laid off and refused reemployment because of his union activity. 44 He continued to reside in the vicinity of Dover and New Philadelphia until some time in November 45 Mooresville Cotton Mills v. National Labor Relations Board, 110 F (2d) 179 (C. C. A. 4), enf'g as mod Matter of Mooresville Cotton Mills and Local No . 1224, United Texti le Work-, ers of America , 2 N. L. R. B. 952 , 15 N. L. R B. 416. - 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. 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 it 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 Having found that, the respondent has engaged in unfair labor practices, we will order it,to cease and desist therefrom and to take certain affirmative, action which we find necessary to effectuate the policies of the Act. We have found that the respondent has discriminated in regard to the hire and tenure of employment of Edgar P. Breitenstein, Clyde Law, Clinton C. Marburger, Albert A. Smith, Neil A. Thornton, and Emanuel J. Tolotti. The appropriate remedy to effectuate the policies of the Act is to order that the respondent offer employment to these persons and make them whole for any loss of- pay each may have suffered as a result of the respondent's discrimination. We will, therefore, order that the respondent offer immediate employment to the individuals named; and further, that it shall make them whole for any loss of pay each may have suffered as a result of the respond- ent's discrimination from the date of such discrimination to the date of the offer of reinstatement, less the net neariiings 16 of each during such period. 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 Federal Labor Union No. 21804 are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating with regard to the hire and tenure of employ- ment of Edgar P. Breitenstein, i Clyde Law, Clinton C. Marburger, as 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 in his hire or tenure of employment and the consequent necessity of his _seeking employment elsewhere See Matter of Crossett Lumber Company and United B,otherlood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590 , 8 N. L. R. B. 440 . Monies received for work performed upon Federal , State, county , municipal , or other work -r elief projects shall be considered as earnings . See Repub- lic Steel Corporation v National Labor Re lations Board , 311 U. S 7 THE GREER STEEL COMPANY 387 Albert A.' Smith, Neil A. Thornton, and Emanuel J. Tolotti, thereby discouraging membership in a labor organization, the respondent has engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. ' 4.. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act, with respect to Emmet L. True. ORDER 11 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 respond- ent, The Greer Steel Company, Dover, Ohio, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Steel Workers' Organizing Com- mittee or in any other labor organization, by discrimination in regard to hire, tenure, terms, or conditions of employment; (b) In any manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage-in concerted activities for the purpose of collective bargaining and other mutual aid and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Edgar P. Breitenstein, Clyde Law, Clinton C. Mar- burger, Albert A. Smith, Neil A. Thornton, and Emanuel J. Tolotti, immediate employment at the same or substantially equivalent po- sitions at which they would have been employed, including any sen- iority or other rights and privileges they would have been entitled to, and the respondent, The Greer Steel Company, not unlawfully discriminated against them; - (b) Make whole Edgar P. Breitenstein, Clyde Law, Clinton C. Marburger, Neil A. Thornton, and Emanuel J. Tolotti, for any loss of pay each may have suffered as the result of The Greer Steel Com- pany's discrimination, by payment to them respectively, of a sum 441843-42-vol 31--26 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of money equal to that which each would normally have earned as wages during the period from September 5, 1939, to the date employ- ment is offered, less his net earnings 47 during said period ; (c) Make whole Albert A. Smith for any loss of pay he might have suffered as a result of The Greer Steel Company's lay-off and discharge of him, by payment to him of a, sum of money equal to that which he would normally have earned as wages during the period from February 15, 1939, to the date employment is offered him, less his net earnings 48 during said period; (d) Post immediately in conspicuous places in its plant, and main- tain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 (a) and (b) of this Order; (2) that the re- spondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; (3) that the respondent's employees are free to become or remain members of Steel Workers' Organizing Committee, and that the respondent will not discriminate against any employee or applicant for employment because of membership or activity in that organization; (e) Notify the Regional Director for the Eighth Region, in writ- ing, within ten (10) days from the date of this Order, what steps the respondent, The Greer Steel Company, 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 Emmet L. True, that the respondent has engaged iii unfair labor practices within the meaning of Section 8 (3) of the Act. - MR. WILLIAM M. LEISERSON, concurring in part and dissenting in part : I concur in the Decision and Order in so far as it sustains the complaint in the case of Albert A. Smith and dismisses the complaint in the case of Emmet L. True. But I would also dismiss the com- plaint with respect to Edgar P. Breitenstein, Clyde Law, Clinton C. Marburger, Neil A. Thornton and Emanuel J. Tolotti. There is not sufficient evidence to warrant any finding of discrimination with re- spect to these five men. The recital of events from previous cases against the respondent does not make up for lack of evidence in the ,present case. These other cases were settled by stipulation and an election, and there is no charge here that respondent failed to carry out the stipulations. - 47 See footnote 46, svp a. 48 See footnote 46, supra.