The Niles Fire Brick Co.

National Labor Relations Board - Board Decisions

Dec 28, 1939

18 N.L.R.B. 883 (N.L.R.B. 1939)

In the Matter of THE NILES FIRE BRICK COMPANY and UNITED BRICK
WORKERS' L. I. U. No. 198
In the Matter of THE NILES FIRE BRICK COMPANY and UNITED BRICK
WORKERS' L. I. U. No. 198
Cases Nos. C-9J8 and R-360, respectively.Decided December 28,1939
Firebrick and Refractories Manufacturing Industry-Inn,teerference , Restraint,
and Coercion : refusing to meet with union organizer because of his affiliation ;
expressing hostility to outside and preference for inside union, treating affiliated
union leader and Union with contempt ; inspiring by such acts and attitudes an
employee , related to general manager, to form an inside union ; attempting to
wean employees from affiliated to an unaffiliated union by stressing an impossi-
bility of collective bargaining with an affiliated union ; taking unprecedented
action, in connection with shutting down plant , by paying off a week in advance
of regular pay day and collecting badges, intending and causing employees to
believe they were discharged because of their then current organization activ-
ities; instructing employees to attend union meeting on company time and
extending lunch hour for union meetings ; circulating petition against Board
election-Strike : caused by respondent 's unfair labor practices-Discrimination:
refusal to reinstate striking employees who applied for reinstatement ; discharges
and giving employees less work because of their union activity or membership
and refusal to join company-dominated union ; demotion and discharge for giving
testimony under Act ; charges of, dismissed as to certain persons-Company-
Dominated Union: domination of and interference with formation and admin-
istration ; intimidation and coercion to join ; meetings held during extended
lunch hour and paid time ; formation instigated by employee related to general
manager of Company ; disestablished as agency for collective bargaining-Unit
Appropriate for Collective Bargaining: production and maintenance employees,
excluding supervisory and clerical employees , mill police, watchmen , and time-
keeper-Collective Bargaining : charges of failure . to, dismissed, upon failure
to prove majority-Reinstatement Ordered: strikers and discharged employees ;
application for : sufficient where strikers followed respondent 's established prac-
tice in seeking employment-Back Pay: awarded employees not reinstated and
discharged employees with deduction for State , Federal, or municipal work relief
and refund of such deduction to appropriate fiscal agent of such work -relief
agency-Investigation of Representatives : petition for dismissed without preju-
dice due to lapse of time since hearing.
Mr. Max Johnstone, for the Board.
Mr. Paul Z. Hodge and Mr. George W. Secrest, of Warren, Ohio,
and Mr. Robert U. Bulkley, of Washington, D. C., for the respondent.
Mr. Joseph L. Kovner; for the Union in Case No. R-362.
Mr. W. F. Mac Queen, of Niles, Ohio, for the Intervenors and the
Independent.
Mr. Bliss Daffan, of counsel to the Board.
18 N. L. R. B., No. 98.
883
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
On September 23, 1937, the United Brick Workers' L. I. U. No. 198,
herein called the Union, filed with the Regional Director for the
Eighth Region (Cleveland, Ohio) a petition alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of The Niles Fire Brick Company, Niles, Ohio, herein called
the respondent, and requesting an investigation and certification of
representatives pursuant to Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. On October 4, 1937, the
National Labor Relations Board, herein called the Board, acting
pursuant to Section 9 (c) of the Act and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 1, as
amended, ordered an investigation and authorized the Regional Di-
rector to conduct it and to provide for an appropriate hearing upon
due notice.
On October 22, 1937, the Regional Director issued a notice of
hearing, copies of which were duly served upon the respondent and
the Union. Pursuant to the notice, a hearing was held on November
1 and 2, 1937, at Warren, Ohio, before Thomas H. Kennedy, the
Trial Examiner duly designated by the Board. At the beginning of
the hearing a motion to intervene by Avery Tackett and James
Matteo, ' two of the respondent's employees, acting on their own
behalf and on behalf of certain other employees of the respondent,
was granted by the Trial Examiner.' The Board, the respondent, the
Union, and the Intervenors were represented by counsel and par-
ticipated 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 hear-
ing the Trial Examiner made several rulings on motions and on
objections to the admission of evidence. After the close of the hear-
ing -the respondent and the Intervenors filed briefs in support of
their objections and contentions at the hearing. The Board has
reviewed the rulings of the Trial Examiner and finds that no preju-
dicial error was committed.
On November 15, 1937, the Union filed with the Regional Director
a charge alleging that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (1), (2), (3), (4), and (5)
1 This motion to intervene was also filed with the Regional Director and had been
granted by him on November 1, 1937.
THE NITLES FIRE BRICK COMPANY 885
of the Act. On January 14, 1938, the Board, acting pursuant to
Article II, Section 37 (b), of its Rules and Regulations, ordered that
the representation case and the case initiated by the filing of the
charge be consolidated for all purposes.
Upon the charge and amended charge, the Board, by the Regional
Director, issued its complaint, dated February 28, 1938, against the
respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (2), (3), (4), and (5) and Section 2 (6)
and (7) of the Act. Respecting the unfair labor practices, the corn-
plaint, as amended at the hearing, alleged in substance that the re-
spondent: (1) fostered, encouraged, dominated, and interfered with
a labor organization of its employees known as Brick Workers' Inde-
pendent Organization, herein called the Independent; (2) discrimi-
nated in regard to the hire and tenure of employment of 30 named
persons, thereby discouraging membership in the Union; (3) dis-
criminated in regard to the hire and tenure of employment of two
of the aforesaid 30 persons because they gave testimony under the
Act in Case No. R-362; (4) refused, at all times since July 15, 1937,
to bargain with the Union as the exclusive representative of the
employees in an appropriate unit, the Union having been designated
as such representative by a majority of the employees in such unit;
and (5) interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed them in Section 7 of the Act : by
the employment of labor spies, by deputizing some of its employees
for the purpose of intimidating and coercing its employees, by dis-
charging and threatening to discharge members of the Union, by
threatening to discharge its employees if they did not join the Inde-
pendent, by applying ridicule and derogatory names to the Union
and members thereof, by discriminating against members of the
Union in the matter of lay-offs and transfers to and within depart-
ments in the plant, by talking against the Union and stating that it
would not recognize the Union, by talking in favor of the Independ-
ent and causing employees to believe that membership therein was
necessary to continued employment in the plant, by committing a
physical assault on an officer of the Union, by circulating a petition
against an election to be held among the plant employees by the
Board, which petition was also unfavorable to the Union, and by var-
ious other acts, methods, and means. A copy of the complaint,
accompanied by notice of hearing, was served upon the respondent,
the Union, and the Independent. On March 7, 1938, the respondent
filed its answer, admitting certain allegations concerning its business,
denying the alleged unfair labor practices, and setting forth certain
affirmative defenses.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held from March 10 through 17,
1938, at Niles, Ohio, before James M. Brown, the Trial Examiner
duly designated by the Board. The Board and the respondent were
represented by counsel and participated in the hearing.2 At the
beginning of the hearing the respondent objected to the consolidation
of the two cases, moved to dismiss for want of jurisdiction, and
requested a continuance of the hearing. The Trial Examiner over-
ruled the objection and denied the motions. The respondent also
sought to introduce further testimony to amplify the testimony in
Case No. R-362 in regard to its business. The Trial Examiner refused
to admit such further testimony and the respondent made an offer
of proof. The above rulings were not prejudicial and are hereby
affirmed. Even if the order of consolidation was improper, the re-
spondent was not prejudiced thereby, since the findings of the Board,
set forth below, relating to the unfair labor practices alleged in the
complaint in Case No. C-958 are not based on any testimony intro-
duced in Case No. R-362. In regard to the business of the Com-
pany, the record in Case No. R-362 was introduced and made part
of the record in Case No. C-958. The additional testimony sought to
be introduced by the respondent, and set forth in its offer of proof,
was not for the purpose of contradicting the evidence in Case No.
R-362, but for the purpose of amplifying the evidence appearing in
Case No. R-362 and made part of the record in Case No. C-958.' The
Board hereby accepts as true the matters set forth in the respondent's
offer of proof.
On motion of counsel for the Board made during the course of
the hearing the complaint was amended to include certain additional
employees within the allegations charging discrimination in regard
to hire and tenure of employment. A corresponding motion by the
respondent to amend its answer to deny the allegations of the com-
plaint as to these additional employees was granted by the Trial
Examiner.4 Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties. At the conclusion of the Board's case the
Trial Examiner granted motions by counsel for the Board to amend
the complaint to conform to the proof and to dismiss the allegations
of discrimination as to six employees named therein.b The respond-
2 Although the Independent was served with a copy of the complaint, accompanied by
notice of hearing, it did not appear at the hearing.
8 In connection with the introduction of further testimony concerning the respondent's
business counsel for the respondent stated at the hearing that his "purpose here is not
to attempt to contradict testimony given in the former case [ Case No. R-362] but to
amplify it by the giving of additional figures so that the entire picture may be before
the Board."
4 Counsel for the respondent expressly waived any objection to the amendment to the
complaint in this respect upon being granted the right to amend the answer.
5 Fred Tomlin , Robert Newell, William Green , Cliff Clevinger , Lawrence Villio, and
Peter DeFabio.
THE NILES FIRE BRIC'R COMPANY 887
ent also renewed its motion to dismiss for want of jurisdiction. This
motion was overruled. During the course of the hearing other rulings
were made by the Trial Examiner on motions and on objections to the
admission of evidence. The Board has reviewed all of the rulings of
the Trial Examiner and finds that no prejudicial error was com-
mitted. His rulings are hereby affirmed.
On September 12, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the respondent, the
Union, and the Independent, finding that the respondent had engaged
in and was engaging in unfair labor practices within the meaning of
Section 8 (1), (2), (3), (4), and (5) and Section 2 (6) and (7) of the
Act. He recommended that the respondent cease and desist from its
unfair labor practices; that 21 employees found to have been discrim-
inatorily discharged within the meaning of Section 8 (3) of the Act,
2 of whom were also found to have been discriminatorily discharged
within the meaning of Section 8 (4) of the Act, be reinstated with
back pay covering the periods of their respective discrimination in
employment; that the respondent withdraw all recognition from and
completely disestablish the Independent as a representative of em-
ployees of the respondent; that the respondent bargain with the
Union as the exclusive representative of the employees in an appro-
priate unit; that the complaint be dismissed in so far as it alleged
discrimination against 9 employees; and that the petition for investi-
gation and certification filed by the Union be dismissed.
On October 15, 1938, the respondent filed exceptions to the Inter-
mediate Report and the. record. Pursuant to notice a hearing for the
purpose of oral argument was held before the Board at Washington,
D. C., on November 29, 1938. The respondent, the Union, and the
Independent were represented by counsel and participated in the
argument. At the oral argument the Board granted the parties per-
mission to file briefs. Thereafter the respondent and the Independent
filed briefs which the Board has considered. On July 11, 1939, pl}r-
suant to notice, another hearing for the purpose of further oral argu-
ment was held before the Board at Washington, D. C., Chairman J.
Warren Madden and Mr. William M. Leiserson present. The re-
spondent was represented by counsel and presented its argument. A
stenographic report was made of this oral argument and a transcript
thereof has been considered by Board Member Edwin S. Smith. Pur-
suant to leave granted by the Board, the respondent, on November 20,
1939, filed a brief which the Board has considered. The Board has
reviewed all the exceptions to the Intermediate Report and record and
finds them without merit except as they are consistent with the find-
ings, conclusions, and order set forth below.
283029-41-vol. 18-57
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the consolidated cases,c the Board makes
the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is an Ohio corporation engaged in the manufacture,
sale, and distribution of refractories, particularly firebrick. The re-
spondent's office and plant are located at Niles, Ohio, which is only a
few miles from the boundary line between Ohio and Pennsylvania.
The respondent operates clay mines in both Ohio and Pennsylvania.
The principal raw materials used in the manufacture of its product
are flint, fire clay, plaster clay, silica gravel, and lime. The respond-
ent uses coal for the purpose of firing its furnaces. During a period
of 12 months the respondent spent approximately $275,000 in the pur-
chase of such raw materials, including coal. Sixty per cent of these
materials, including coal, purchased by the respondent are shipped to
its plant from points outside Ohio. Coal, which represents 25 per cent
of the respondent's total purchases, is purchased from a company in
Ohio, but is sent to the respondent from such company's mines in
Pennsylvania. The total sales of the respondent's products during a
period of 12 months amounted to approximately $600,000, of which
10 per cent represents shipments to points outside Ohio. This 10
per cent of the respondent's products are sold and consumed in a
district outside Ohio known in the steel industry as the "Pittsburgh
District." The remaining 90 per cent of its products are sold in what
is commonly known as the Mahoning Valley District, located in north-
eastern Ohio, embracing the cities of Youngstown, Niles, and Warren.
The finished products of the respondent are used almost entirely
by the steel and glass industries.
II. THE ORGANIZATIONS INVOLVED
United Brick Workers' L. I. U. No. 198, is a labor organization
affiliated with the Committee for Industrial Organization." It admits
e As stated above, the findings of fact relating to the unfair labor practices are not
based on any evidence introduced at the hearing in Case No . R-362 on November 1
and 2, 1937.
In its brief the respondent admits that 60 per cent of its raw materials are shipped
to it from points outside Ohio, and that it ships 10 per cent of its finished products
outside Ohio , adding the following description :
The true situation with respect to the company [respondent ] is that it has
been established in the midst of the steel manufacturing and fabricating industries
of the Mahoning Valley, and supplies the requirements of fire brick for these
industries . There is no other manufacturer of refractories in this locality, and
all but 10 per cent of their [the respondent's] product is consumed by such
companies as The Carnegie -Illinois Steel Company, The Republic Steel Corpora-
tion, and The Youngstown Sheet and Tube Company, with plants located in
Youngstown, Niles, and Warren, Ohio.
8 Now the Congress of Industrial Organizations.
THE NILES FIRE BRICK COMPANY - 889
to membership all the production and maintenance employees of the
respondent, excluding supervisory, clerical, and office employees, and
timekeepers and watchmen.
Brick Workers' Independent Organization is an unaffiliated labor
organization admitting to membership production and maintenance
employees of the respondent, excluding supervisory and office em-
ployees.
Steel Workers' Organizing Committee is a labor organization affil-
iated with the Committee for Industrial Organization.° During May
and June 1937 it admitted employees, of the respondent to member-
ship.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; domination, interference
with, and support of the Independent
1. Events leading to the strike of July 19, 1937
Organization of the respondent's employees began late in May or
early in June 1937, when two organizers of the Steel Workers'
Organizing Committee, herein called the S. W. 0. C., entered the
respondent's plant at noon, while the employees were not engaged at
their work, and began signing them up for membership in the
S. W. O. C. Shortly thereafter the respondent placed watchmen
at the, gate to its plant. On or about June 15 the respondent shut
down its plant, paid the employees off a week in advance of their
regular pay day, and took from them their pay-roll identification
badges. The respondent had never in the past taken such action
in connection with shutting down its plant. This unprecedented
action, coming at a time when the S. W. O. C. had begun organizing
the employees and when the respondent knew that the employees were
organizing, caused the employees to believe that they had been
permanently discharged. .
Two days after the shut-down approximately 40 employees con-
gregated at the gate to the respondent's plant. A committee of em-
ployees who were S. W. O. C. members requested a conference with
the respondent. When the committee was granted an audience with
P. J. Sheehan, the respondent's general manager, the committee asked
that the respondent enter into an agreement providing that all the
employees be returned to their jobs when the plant reopened and that
work be divided equally among the men. After two conferences on
successive days, John Clingan, vice president of the respondent,
authorized Sheehan to enter into an agreement embodying the terms
P Footnote 8, supra.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested by the committee. On June 17, 1937, the respondent, acting
through Sheehan, and the committee entered into the following
agreement :
JUNE 17, 1937.
We the majority of workers in the Niles Fire Brick Co., due
to the fact that we had our badges taken away, and were paid
off in full one week in advance, feel that, we were discharged.
We ask that the management sign this agreement, 1. As each
department begains (begins) operation the men go back to work
on the jobs they had prior to the lay-off. 2. That all work done
in each department be divided equally among the workers of the
department.
(Signed Management) THE NILES FIRE BRICK COMPANY.
By P. J. SHEEHAN, Gen. Mgr.
Committee :
THOMAS LIBERATORE.
GEORGE BAKO.
Louis GENN.
PAUL YARWOOD.
WILLIAM GREEN.
ALFRED WHITT.
A few days thereafter the respondent's plant resumed operations
and all the employees were returned to their jobs.
The respondent's explanation of the shut-down, the paying off of
the men a week in advance of their regular pay day, and the taking
up of the badges, is that in June many of its customers were can-
celing orders because of labor unrest in the Mahoning Valley, that
it decided to close down the plant for an indefinite period, that many
employees resided in Kentucky and desired to return home after the
shut-down and requested "drags" or advances on their wages, that
the respondent decided to pay them a week in advance of their
regular pay day, and that because each employee had 50 cents de-
posited on his badge, it was decided to take up the badges and refund
the deposit. This reason for taking up the. badges was testified to
by Sheehan. Clingan, however, testified to a different reason, namely,
that the respondent intended to install a new system. While there
is evidence tending to show that the respondent shut down its plant
for the purpose of discouraging membership in a labor organization,
upon the whole record we do not so find. Upon all the evidence we
do find, however, that the respondent took the unprecedented action
of paying the employees off a week in advance of the regular pay day
and of collecting their identification badges for the purpose of dis-
couraging membership in a labor organization by causing the em-
THE 1\7LES FIRE BRIOK dOMPAIQY 891
ployees to believe that they had been discharged because of their
then current organizing activities.
On June 28 , 1937 , the organization consisting of employees who
had signed up in the S . W. O. C. was chartered by the Committee for
Industrial Organization 10 as the Union herein. Organization of the
respondent 's employees by the Union continued after the plant re-
sumed operations and, on or about July 8, the Union attempted to
arrange a conference with Clingan . The Union did not succeed in
this attempt and, instead , met with Sheehan , to whom it presented
a draft of a proposed contract . Walter Payne, an organizer for the
Union, accompanied the committee . Thomas Liberatore, an em-
ployee and president of the Union, informed Sheehan that the Uilion
represented a majority of the employees and desired that the re-
spondent consider the contract . Sheehan took the contract and
advised the committee to return later for his answer. As the com-
mittee was leaving, Sheehan "nudged" Paul Yarwood , an employee
and recording secretary of the Union, and told him to "bring your
committee back. Mr. Clingan wants to see you, but he doesn't want
to see Mr. Payne." The committee returned the same day , without
Payne, and met with Clingan . Members of the committee asked
Clingan why he was unwilling to meet with the union organizer and
Clingan replied that he would not talk to a "C . I. O. organizer."
After some discussion concerning business conditions and the wages
paid to the respondent 's employees as compared with wages paid in
similar industries in other localities , Clingan stated "forget the
C. I. 0." and then added, "I tell you, why don't you boys form some
kind of a union here without no outside connections . I will consider
going along with that." 11 The committee rejected this exhortation.
Clingan then asked the committee if the proposed contract provided
for a wage increase , and upon being informed that it did , stated that
he considered it unfair to the respondent because an increase had
been granted about 2 months prior to that time . Clingan requested
a few days to consider the contract and the meeting adjourned. The
parties agreed to confer further the following Monday.
10 Now the Congress of Industrial Organizations.
11 Clingan denied that he made the remark about forming a union without "outside
connections." His own testimony shows that this was the only time lie met with the
union committee prior to the strike and he offered no explanation as to why he was not
present at the other conferences when the committee met with Sheehan. Sheehan, in
answer to a question by counsel for the respondent whether he "ever made a statement
to the effect that if they wouldn't bring in any outside organizer, you might be able
to get together with them," replied that he had not. We do not regard this as an effec-
tive denial. In any event, it is undisputed that the committee, including Payne, sought
to meet with Clingan but met with Sheehan. and that it returned and met with Clingan,
without Payne. The explanation given by the witnesses called by the $oard is straight-
forward and convincing, and is further amply supported by the activities engaged in
subsequently by the respondent, set forth below.
892 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
On or about the same day as the above conference with Clingan,
July 8, Simon Gagany, the respondent's labor foreman and ad-
mittedly a supervisory employee, approaching Liberatore, the presi-
dent of the Union, and said, "Tom, why can't you form a company
union, an independent union. The company will go along with you
better."
The Monday following the meeting with Clingan, the union com-
mittee and Payne met with Sheehan. Clingan was not present.
Payne removed from the contract the sheet containing the provision
for an increase in wages and suggested to Sheehan that they dis-
cuss the proposed contract by paragraphs, and to "throw out" and
"talk over" such paragraphs as could not be agreed upon. Sheehan
read the last two paragraphs of the proposed contract which pro-
vided for a check-off and informed Payne that the procedure was
useless, "we are not going to sign a contract, I won't sign any con-
tract." Sheehan then requested 2 weeks to look over the proposed
contract and to submit it to an attorney and to the owners of the
plant. Payne agreed to give him 8 or 10 days to consider the pro-
posed agreement.
The union committee returned on July 19 for the respondent's
answer. Sheehan advised the committee that the respondent would
not sign the proposed contract. Payne suggested eliminating any
provision objectionable to the respondent or that the respondent draft
its own contract and sign it. To these suggestions Sheehan replied,
"No, I don't want to sign the contract, I won't sign." Payne then
stated, "It will be just too bad because the boys will go strike," and
the meeting ended.
That night the Union held a meeting and voted to strike. Picket-
ing of the respondent's plant began immediately. The next morn-
ing, July 20, all the employees were on strike.
It is plain from the facts set forth above that from the very be-
ginning of self-organization among the employees, the respondent
adopted an attitude of hostility to the Union, which it made known
to the employees, and that its actions were designed to interfere with
and discourage membership in the Union and to canalize the desires
of the employees for organization toward a union with no ."outside
connections," which the respondent preferred. It is also plain that
at the conferences between the Union and the respondent, the. re-
spondent made it unmistakably clear that the respondent would not
bargain with the Union solely because of its affiliation with the
C. I. 0., irrespective of whether or not the Union represented a
majority of the employees. The respondent's requests for additional
time were plainly dilatory measures, a fact borne out by the con-
ferences themselves and Sheehan's testimony that he did not know
THE NILES FIRE BRIOK COMPANY 893
whether or not he ever referred the proposed contract to the owners
of the plant, in spite of the fact that he requested time for that
specific purpose.
We find that by paying the employees off a week in advance of the
regular pay day and by taking up their badges when the plant shut
down, by Clingan's refusal to meet with the union organizer solely
because he was a C. I. 0. organizer, by expressing hostility to the
Union, by expressing preference for an inside union, by attempting
to wean the Union away from its C. I. 0. affiliation and encouraging
the formation of an inside union, by impressing the employees with
the impossibility of achieving collective bargaining as long as the
Union retained its affiliation with the C. I. 0., and by other acts
set forth above, the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed them in
the Act.
We further find that, although the strike was precipitated by the
respondent's refusal to enter into a contract, the above unfair labor
practices were a substantial factor in causing the strike which began
on July 19, 1937.
2. Events during the strike of July 19 and thereafter
As was to be expected, the unfair labor practices of the respondent,
set forth above, were followed by a movement to form an "inde-
pendent" or inside union. Shortly after the beginning of the strike,
two employees, James Matteo, son-in-law of General Manager P. J.
Sheehan, and Avery Tackett, began soliciting the striking employees
to organize an inside union and return to work. Matteo and Tackett
then met with Clingan, informed him that the men on the picket line
would like to go back to work, and inquired whether an independent,
or inside, union would be considered by the respondent. Clingan
replied that "he would consider anything." Either just before or
shortly after the above conference with Clingan, Matteo approached
Liberatore, president of the Union, and suggested submitting to the
respondent the matter of executing a contract with an "independent"
union. Liberatore agreed with the reservation that the respondent
also agree that the employees have the right to "turn this [contract]
over to the C. I. 0. at any time." Matteo arranged a conference be-
tween Sheehan and a committee composed of Matteo, Tackett, Alex
Sabo, and Yarwood, the latter two being members of the union com-
mittee. This conference took place in July. Sheehan rejected the
proposal upon its submission to him. Later the same day Liberatore
and Payne went to the respondent's office and tried to arrange a
conference with the respondent, but the respondent refused to meet
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with them because they were president and, organizer of the Union,
respectively.
The strike was officially ended by the Union on August 1, 1937.
A substantial number of employees had returned to work on July
31, but the majority applied for work on August 2.
A number of members of the Union, including its officers, were
not given work on August 2, when the plant resumed its normal op-
erations. On or about August 14 two members of the Union, Alex
Sabo and Anthony Villio, contacted Sheehan at the gate to the plant
and informed him that they had been sent by the president of the
Union as a committee to see if an agreement could be made whereby
the employees who were not returned to work after the strike ended
would be reinstated by the respondent. Sheehan replied, "Don't
come over here as a committee; come here as an individual and I
might talk to you. Your organization is broken up and your offi-
cials have resigned and I don't ' see where you can vouch for any
man." 12 The Union was functioning at this time and its officers had
not resigned. Sabo and Villio transmitted Sheehan's reply to the
union officers who then called the United States Department of Labor
and arranged for a conciliator, Thomas Reichart, to come to Niles to
confer with the respondent concerning the reinstatement of the union
members who had not been returned to work. On August 16, 17,
and 18 Reichart held conferences attended by the union committee,
Clingan, and Paul Z. Hodge, the attorney representing the respondent
in the present proceedings. At the August 17 conference Clingan
referred to Whitt and Yarwood, two employees on the union com-
mittee, as "rats and nuisances to the Company," whereupon Reichart
and the union committee "walked out" of the meeting.13 At the
August 18 conference the respondent agreed to reinstate all the union
members who had not been given employment at the end of the strike,
with the exception of Thomas Liberatore, John Toth, Herman Estes,
and Lawrence Villio. With the exception of these four employees, all
the union members seeking reinstatement were given employment on
August 18 or within 2 or 3 days thereafter. John Toth, Herman
Estes, and Thomas Liberatore were subsequently reinstated on or
about September 1, 1937.
13 Sabo and Villio both testified to the above statements by Sheehan . Sheehan denied
making these statements , but admitted that Sabo approached him and requested a con-
ference as chairman of a union committee and that he refused to confer, stating "there
ain't anything to talk about ." We are not impressed with Sheehan 's testimony. In
regard to this incident the Trial Examiner stated in his Intermediate Report : "the
undersigned refuses to believe Sheehan in preference to Sabo and Villio; in fact, Shee-
han's testimony and demeanor on the stand was such as to warrant giving his testimony
little consideration."
18 At the hearing Clingan testified that his remarks were not intended to refer to
Whitt and Yarwood . We are satisfied from the manner in which the union committee
and Reichart reacted to Clingan 's remark, and from the record as a whole, that it was
directed at Whitt and Yarwood.
THE NILES•FIRE BRICK COMPANY 895
Alex Sabo, who with Villio had been refused a conference in
regard to reinstatement on August 14 by Sheehan because they had
not come as individuals but as a union committee, asked Sheehan on
August 20 whether he could go back to work. Sheehan told him that
he was not in "the right frame of mind to come back" and to go
home and "cool off a bit." The next morning, August 21, he saw
Sheehan again and told him he was "sorry for blowing off, or hav-
ing anything to do with union activities, and things. like that."
Sheehan replied, "all right, Alex, I will take you back. You know
you can't get anywhere by coming in here as a group. If you talk
for yourself, you will get somewhere." Sabo returned to work that
day.
About 3 weeks after the termination of the strike further steps were
taken to organize the inside union which was to become known as
the Independent. Tackett and Matteo, General Manager P. J. Shee-
han's son-in-law, both of whom had sought during the strike to
induce the Union to drop its C. I. O. affiliation and enter into a con-
tract with the respondent as an inside union and had arranged the
meeting with Sheehan for that purpose, obtained contributions of
$1.00 each from two other employees, Guy Wallace and Aubrey
Sheehan, son of P. J. Sheehan, to assist in having membership cards
printed. After the cards were obtained, these four employees began
soliciting the employees during working hours to join the Inde-
pendent. After many employees had signed Independent cards, Mat-
teo and Tackett obtained a conference with Clingaii in the latter
part of August and again asked him whether the respondent would
consider a contract with the Independent. We find that the follow-
ing testimony of Matteo states Clingan's attitude toward Matteo's
incipient independent union both at this time and also before the
strike :
Q. Did he tell you that he would consider an independent
contract?
A. Yes; he took the same position he took before the strike
was on.
Q. What was that position, that he would deal with you?
A. That he would deal with us; he wouldn't refuse us.
On or abbut October 27, 1937, a notice appeared in the daily paper
at Niles concerning the hearing in Case No. R-362 (held on Novem-
ber 1 and 2, 1937) on the petition for an investigation and certifica-
tion of representatives filed by the Union. On October 27 or 28
James McCormick, a machinist and also a son-in-law of General
Manager P. J. Sheehan, started the circulation among the employees
of a petition stating in substance that the signers did not want an
election. Matteo, Tackett, and others solicited employees to sign
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this petition. The petition was introduced in the hearing of Case
No. R-362 on November 1 by Matteo and Tackett, who intervened
in behalf of themselves and the signers of the petition. Matteo and
Tackett were represented at that hearing by W. F. McQueen, an
attorney who later assisted in the formation of the Independent.
The .drive to form the Independent intensified after the hearing in
Case No. R-362 on November 1 and 2. Late in November or early in
December, Tackett, Matteo, Wallace, and Aubrey Sheehan began
soliciting the employees to join the Independent. Most of the solici-
tation took place during working hours on plant property. At
times the solicitation was accompanied by a threat that an employee
would lose his job if he did not join the Independent. Simon Gag-
any, the respondent's .labor foreman, also assisted in the membership
drive of the Independent 14
In December the Independent held a meeting at 8 p. in. at a tav-
ern in Niles known as the "Landmark." The customary lunch period
for the night shift was a half hour, beginning at 8: 30 and ending
at 9 o'clock. On the night of the Independent meeting the whistle
signaling the beginning of the lunch period was blown by the re-
spondent at 8 o'clock instead of 8:30, the usual time. When the
whistle was blown, Benny Hiscox, a machinist in charge of the
mechanical operations of the brick presses at night, went through the
plant and announced that the employees could attend the Independ-
ent meeting during the extra time given for the lunch _ period, but
would have to make up the time. A number of employees attended
this meeting. The respondent blew the whistle again at 9 o'clock,
signaling the end of the lunch period. McQueen, the attorney who
represented Matteo and Tackett in Case No. R-362, was present at
this meeting and instructed the employees present concerning the
process of organization. Thereafter a committee of the Independent
drafted bylaws which were adopted at a meeting held at the "Land-
mark" either in January or February 1938. This meeting was held
at 2 o'clock on a Sunday afternoon. Matteo, General Manager P. J.
Sheehan's son-in-law, was elected president of the Independent and
other officers were also chosen. Toth, a kiln fireman, testified that
Foreman Gagany instructed the men working under him at, the time
of the Sunday meeting to attend the meeting, and that those who at-
tended were paid by the respondent for their regular 6 hours of
work. Gagany denied that he gave any such instruction and tes-
tified that only three men, all kiln firemen, were working on the
Sunday afternoon in question; that the shift changed at 3 p. in. and
the three men working were replaced by three others; and that none
14 The activities of Matteo, Aubrey Sheehan, and Gagany are set forth in greater detail
below after the narration of the course of events.
THE NILES FIRE BRIOK COMPANY 897
of the men was absent from his employment at any time during the
day. In view of other activity of Gagany in behalf of the Inde-
pendent and the record as a whole, we do not credit his denial and
find the facts to be as testified by Toth.
After the formal organization of the Independent, no dues were
collected, although it appears that the bylaws provided for dues.
Except for the two meetings with Clingan mentioned above, it does
not appear that there were any attempts by the Independent to bar-
gain with the respondent. Wallace testified that McQueen had not
been paid for representing the signers of the McCormick petition in
Case No. R-362 or for assisting in the formation of the Independent,
and that no bill had ever been presented for his services. Matteo tes-
tified that 177 of the respondent's employees were members of the
Independent at the time of the hearing in Case No. R-362.
The Union had two more meetings with the respondent. On
November 27, 1937, the union committee, accompanied by one An-
thony, an organizer for the Union from Akron, Ohio, met with
Sheehan and several other officials of the respondent. Anthony
stated, in effect, that the purposes of the meeting were to discuss
working conditions, to engage in collective bargaining with the
respondent, and to create a more harmonious feeling between the
Union and the respondent. Sheehan replied in substance that these
were not the purposes of the meeting, that the meeting was one of
individuals to discuss grievances, and that the respondent would take
"the same stand we did at first" and would not bargain collectively
with the Union. After some discussion between Liberatore and
Sheehan as to whether the respondent had abided by the terms of
the agreement of June 17, Liberatore made a remark resented by
Sheehan, who thereupon ordered Liberatore to leave the meeting.
Liberatore departed and shortly thereafter the meeting ended.
Paul Yarwood was elected president of the Union in January
1938, and shortly after his election saw General Manager Sheehan
in an effort to obtain a conference for the purpose of securing a
"peaceful settlement" of the charges of unfair labor practices which
the Union had theretofore filed with the Regional Director. When
Yarwood stated his purpose, Sheehan replied, "I can't consider it at
all. We do [sic] want anything to do with you." The Union made
no further efforts to confer with the respondent.
It is necessary at this point to consider the activities of •Matteo,
Aubrey Sheehan, and Foreman Gagany in behalf of the Independent
and the respondent's responsibility for these activities.
James Matteo was the leader of the movement to form the' Inde-
pendent and became its president after its formal organization. As
stated above, he is a son-in-law of General Manager P. J. Sheehan.
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He was employed as a bricklayer and his monthly earnings were-
more than those of the average production employee.
Matteo joined the Union in the latter part of May. He was not
active in the Union, attending only one meeting, the one on July 19,
at which the strike vote was taken. At this meeting Matteo was the
leader in the opposing of a strike by the Union. It is plain that
Matteo began his activities in opposition to the Union and in favor of
an inside union because he knew that the respondent desired such a
movement. He knew that just prior to the July 19 strike Clingan had
stated to the union committee that he would consider going along
with a union without "outside connections." In this respect Matteo
testified as follows :
Q. Mr. Pasha testified here that some time in July, before the
strike, that there was talk about a C. I. 0. contract and I put
down, around Kiln 25, that James Matteo told him that Mr.
Clingan would sign if he would take the contract out of C. I. 0.
Do you remember having any conversation with Louis Pasha?
A. I don't remember any such thing.
Q. Do you recall at any time before the strike, ever making
such a statement?
A. I do recall a committee, now, if I am not mistaken, I heard
something to that effect, about the time Mr. Clingan had a con-
versation with Tom Liberatore in the works office that same day
I believe I heard something about what went on in that room
and I believe it was something to that effect.15
That he was inspired to instigate a movement to return to work and
to form the Independent, an inside union, by his knowledge of the
respondent's desire in the matter is shown by his approaching Libera-
tore shortly after the strike began and proposing that the Union
drop its C. I. 0. affiliation and enter into a contract with the re-
spondent as an inside union, a proposal identical with the one Clingan
made to the union committee. Moreover, Matteo's easy access to the
respondent, particularly Clingan who indicated to Matteo that he
would deal with a group without "outside connections," is in marked
contrast with the union committee's reception by Clingan and P. J.
Sheehan. This of itself shows that the respondent encouraged his
activities 18
16 Italics supplied.
1e This finding is readily apparent when the respondent 's treatment of Matted and his
associates is contrasted with the contemptuous treatment meted out to the Union by
the respondent , namely : Clingan 's refusal to meet with the Union with its organizer
present ; Clingan 's reference to two members of the union committee as "rats and
nuisances to the Company" ; Sheehan's statement to Sabo and. Villio, who approached
him as a union committee, "Don't come over here as a committee ; come here as an indi-
vidual and I might talk to you . Your organization has broken up and your officials
have resigned and I don't see where you can vouch for any man ."; and Sheehan 's state-
ment to Yarwood that "we don 't want anything to do with you."
THE MILE'S FIRE BRIOK COMPANY 899
Because his activities were in conformity with the respondent's
known hostility to the Union and its desire for an inside union,
Matteo was able to, and did, use his relationship as son-in-law to
General Manager P. J. Sheehan to coerce employees into joining and
supporting the Independent . Thus about the middle of September
Matteo went to the home of John Toth, kiln fireman , and requested
him to sign up with the Independent . Toth objected to signing be-
cause of his membership in the Union , whereupon Matteo stated
that he "would like to fix me up so I get my steady job back." Toth
signed, upon Matteo's promise that he would see the management
about getting Toth regular employment . On October 29 Matteo
threatened Alex Miller , an employee , with the loss of his job if he
did not sign .up with the Independent . Miller refused to sign and
was discharged that day.17 When the petition in opposition to a
Board election was circulated in October , Wallace and Tackett
brought the petition to Joe Villio, an employee, at his home. 'He
refused to sign it. Later the same day Tacked returned with Matteo.
Matteo asked Villio to sign the petition and when Villio refused,
Matteo stated , "Well, later on when things boom, don't say we didn't
come around and tell you to sign it."
General Manager P. J. Sheehan testified that he did not know
of Matteo's connection with the Independent until shortly after
Matteo was elected its president in January . This testimony is
wholly incredible . Matteo was a known leader in the movement to
form the Independent , had met with Clingan twice in the interest
of the Independent , once during the strike and once in August, and
had met with Sheehan in July, along with Sabo and Yarwood, con-
cerning the execution of an "independent contract" with the Union.
In view of the above facts, Sheehan 's position with the respondent,
and the notoriety of Matteo 's leadership in the movement to form
the Independent, we find that Sheehan from the outset knew of
Matteo's connection with the Independent and took no steps to
prevent Matteo from using his relationship with Sheehan to coerce
employees into joining the Independent . Moreover , Matteo had
dinner every Sunday with P. J. Sheehan , and there was no lack of
opportunity for the two men to discuss Matteo's role in the Inde-
pendent. We do not credit the testimony of Sheehan and Matteo
that they never discussed union affairs at the Sunday dinners.
We find that the respondent 's known hostility to the Union, and
its preference for an inside union, expressed by the respondent's
words and actions , inspired Matteo to take the leadership in forming
the Independent , that the respondent encouraged Matteo's activities
17 See subsection B, infra, for our finding that Miller was discharged because of his
refusal to join the Independent and because of his membership and activity in the Union.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and at the same time discouraged union activities, and that the re-
spondent permitted Matteo to use his relationship to P. J. Sheehan
to invest his activities with coercion and thereby intimidate employees
and achieve the results desired by the respondent. We find that the
respondent is responsible for Matteo's activities?8
Aubrey Sheehan was one of the active leaders in the formation of
the Independent. He is the son of General Manager P. J. Sheehan
and was employed as an engineer in the respondent's plant. Like
Matteo, Aubrey Sheehan used his relationship to the general man-
ager to coerce employees into joining the Independent. He also used
his superior position as engineer for the same purpose.
In December Aubrey Sheehan asked Carmen Villio, a member of
the Union, to join the Independent. Villio refused, whereupon Au-
brey Sheehan informed him that if he did not sign up with the Inde-
pendent, he would not work. Aubrey Sheehan approached Mike
Infante, an employee, in the boiler room of the respondent's plant
and asked Infante to sign a membership card in the Independent.
Infante replied, "to hell with you and the Independent. I am not
signing nothing." Thereafter Infante was laid off. This dismissal
was later brought up during the course of a conversation between
several employees and Aubrey Sheehan. One of the employees re-
marked that they had better join the Independent "or else be out."
At this point Aubrey Sheehan stated, "That is right, you know what
Mike Infante got for not having joined the union [Independent] and
blowing off about the union, and keeping other men from joining."
On another occasion Aubrey Sheehan asked two other employees to
sign membership cards in the Independent, stating that otherwise
they "would probably get what Mike Infante got."
Aubrey Sheehan was a very evasive witness and his testimony was
obviously colored in an effort to discredit the Union. He testified
that he was the first employee to become a member of the Union, that
he was active in it, and that before the strike he became disgusted
with the Union because he did not believe in "paying tribute, to the
C. I. 0." or that "we should pay money to John Lewis." Aubrey
Sheehan admitted that he solicited members for the Independent, but
denied that he used coercion in so doing. On the other hand, he
testified that he put "pressure" on the employees to join the Union.
Aubrey Sheehan testified that he applied "pressure" in the following
manner :
Q. Is there anything else? That is quite a lot.
A. I used to say to my fireman every day, "I will fix you, so
that you will lose your job."
18 International Association of Machinists T . National Labor Relations Board, 110 F. (2d)
29 (C. A., D. C.).
THE NILES FIRE BRICK COMPANY 901
Q. What did you do about that? How did you work it? How
did you think you could make a man lose his job?
A. He didn't know any better. He didn't understand English
and those were the kind of guys you work with . They didn't
know whether they were living or not.
Q. You mean you could go to your employer and convince him
that this man was not a good employee?
A. Yes; buck him.
Q. Tell me what "buck" is.
A. If the boss would come down there, I could say : "This fel-
low did this and that ." I was his boss ; I was over him as an
engineer.
Q. And the employer did take your word for it?
A. Sure ; I was the engineer.
The Union was affiliated with the C. I. 0. from its inception. The
reasons given by Aubrey Sheehan for his "disgust " with the Union
existed at the time he joined it. We are satisfied from Aubrey Sllee-
han's activities that he did not join the Union as an employee inter-
ested in collective bargaining , but to be in a position to create dissen-
tion from within and to cripple the Union in its activities . In view
of this and the fact that he was a leader in the formation of the Inde-
pendent and had solicited - members in its behalf, we And that the
technique set forth above was used by him in coercing employees to
join the Independent and not the Union, and that he testified that he
applied "pressure" to employees to make them join the Union for the
purpose of discrediting the Union.
P. J. Sheehan testified that he did not know of Aubrey Sheehan's
connection with the Independent until the hearing . This testimony is
wholly incredible. Aubrey Sheehan testified that on one occasion his
father rebuked him and told him that he was not a "boss" and to "quit
bothering the men." In regard to the occasion for this rebuke , Aubrey
Sheehan further testified, "Well, I had been bothering the men for this
Independent , that is, I was agitating them a little bit , not much."
Aubrey Sheehan's testimony shows that this incident occurred in
November or December 1937 , during the active membership campaign
of the Independent . We find that P. J. Sheehan had knowledge of his
son's activities in behalf of the Independent long prior to the time
of the hearing. We further find that this rebuke of Aubrey Sheehan
did not cause him to cease his activities in behalf of the Independent
and that the respondent took no effective steps to stop these activities.
Moreover , P. J. Sheehan and Clingan were themselves engaged in a
course of conduct designed to destroy the Union and foster the Inde=
pendent.
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent contends that Aubrey Sheehan is not a supervisory
employee. We think that Aubrey Sheehan's testimony set forth above
establishes that men work under him, and that although he may not
have the power to discharge, he has the power effectively to recommend
the discharge of employees under him. We find that Aubrey Sheehan
is a supervisory employee.
As in the case of Matteo, we find that Aubrey Sheehan's activities in
behalf of the respondent were inspired by the respondent's known hos-
tility to the Union and preference for an inside union, that the re-
spondent encouraged his activities and permitted him to use his super-
visory position and relationship to General Manager P. J. Sheehan to
coerce the employees into joining the Independent. We find that the
respondent is responsible for Aubrey Sheehan's activities.
Simon Gagany is the respondent's labor foreman. The respondent
admits that he is a supervisor. As stated above, on or about July 3,
Gagany advised Liberatore, president of the Union, to form an in-
side union and that if he did so the respondent "will go along with you
better." Toth, an employee, signed up in the Independent after being
told four or five times in 1 day by Gagany to sign up in order to "be
on the good side of the Company." In December 1937 Gagany asked
Vaccaro, another employee, to join the Independent. Vaccaro refused,
and Gagany told him it would be "too bad" if he did not join. In
November, Joe Villio, an employee who had been laid off, talked with
Gagany at the gate to the respondent's plant concerning work. Ga-
gany told him, "I'don't think you are going to get very much work
now, because you didn't sign the Independent Union." We do not
credit Gagany's denial of coercive statements attributed to him by
employees. The activities of Gagany, as set forth above, are con-
sistent with the respondent's known desires and with the other acts and
conduct engaged in by the respondent and its agents.
The respondent contends that it instructed all the foremen to refrain
from any union talk and not to interfere with the employees' right .to
join a labor organization and that Gagany acted in violation of his
express instructions, if he engaged in the activities set forth above.
Even if Gagany was acting contrary to his instructions, it was the
respondent's duty to make its instructions effective, which it did not
do. It is responsible for Gagany's activities.19 Moreover, during the
entire period of Gagany's activities, the respondent's highest officials,
P. J. Sheehan and Clingan, were themselves engaged in a course of
conduct designed to break the Union and foster the Independent.
Under these circumstances we find that Gagany's activities were a part
of the course of conduct pursued by the respondent in destroying the
Union and establishing an inside union.
1D Swift cG Company v. National Labor Relations Board , 106 F. (2d) 87 (C. C. A. 10).
THE NILES FIRE BRICK COMPANY 903
3. Concluding findings
The facts set forth above plainly establish that the respondent blocked
and frustrated its employees in the exercise of their right to select
representatives of their own choosing and installed the Independent,
an organization formed and administered under the domination and
control of the respondent, as a buffer and continuing obstacle to the
self-organization and collective bargaining contemplated by the Act.
This conclusion is further supported by our findings below that dur-
ing this period the respondent discriminated in regard to the hire and
tenure of employment of leaders and members of the Union and of em-
ployees who refused to join the Independent.
We find that the respondent dominated and interfered with the
formation and administration of the Independent and contributed
support to it, thereby interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed them in Section 7
of the Act.
We further find that by the acts and conduct of the respondent
prior to the strike of July 19, 1937, specified in Section III Al, by the
activities of Matteo, Aubrey Sheehan, and Gagany, by discriminating
against union leaders and members after the strike, by the anti-union
statements and conduct of P. J. Sheehan and Clingan, by the circu-
lation of the petition against a Board election, by extending on one
occasion the lunch period for a half hour to enable employees to
attend an Independent meeting, by instructing employees to attend
another Independent meeting and paying employees for time so spent,
by its consistently contemptuous treatment of the Union and its lead-
ers because of the Union's affiliation with the C. I. 0., and by other
acts and conduct set forth above, the respondent has interfered with,
restrained, and coerced its employees' in the exercise of the rights
guaranteed them in Section 7 of the Act.
B. The discharges
The complaint, as amended, alleges that : (1) on August 1, 1937, the
respondent discharged 24 employees for organizational and other
union activities; that said employees were not reinstated until August
18, 1937, or thereafter, and at various times since their reinstatement
have been discharged again; (2) that 6 other employees were dis-
charged for organizational and other union activity since October 1,
1937; that by the discharge and refusal to reinstate all said employees
the respondent has discriminated in regard to their hire and tenure
and terms and conditions of employment within the meaning of Sec-
tion 8 (3) of the Act; and that 2 of the 24 employees referred to in
clause (1) above were also discharged for testifying at the hearing
283029-41-vol. 18-58
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held by the Board in Case No. R-362 on November 1 and 2, 1937.
Upon motion of counsel for the Board during the course of the hear-
ing the Trial Examiner dismissed the allegations of the complaint as
to 6 of the 24 employees referred to in clause (1) above, namely, Cliff
Clevenger, Peter De Fabio, William Green, Fred Tomlin, R. Newell,
and Lawrence Villio.20
In its answer the respondent denied that it discharged the employees
named in the complaint on August 1 and stated affirmatively that its
failure to reinstate such employees between August 1, when the.strike
ended, and August 18, the date of the last Reichart conference, was
not discriminatory, but was due to such employees not making appli-
cation for work, or because there was no work for them ; and that if
any of the employees named in the complaint, with the exception of
Louis Pasha, who, it claimed, was discharged for intentionally in-
efficient work, are not now in its employment it is because they were
temporarily laid off due to lack of work, or because they had volun-
tarily quit the respondent's employment.
Before discussing the individual cases of alleged discrimination we
shall consider the respondent's defense that many of the persons named
in the complaint failed to apply for reinstatement between August 1
and August 18. P. J. Sheehan testified that on July 30, before the
official termination of the strike on August 1 by the Union, the re-
spondent gave employment to as many of the employees as available
work permitted; that because the respondent did not want men in the
plant for whom there was no work, the employees desiring to return
to work at the conclusion of the strike were required to go to the office
and obtain a "slip" from Sheehan to gain admittance into the plant.
P. J. Sheehan explained that the "slip" was in the nature of a pass,
and that this was the only manner in which employees could obtain
work' unless they were called into the plant by their respective fore-
men. When P. J. Sheehan was interrogated during the course of his
examination regarding the failure of particular union members to
receive employment at the conclusion of the strike, in a number of
instances he claimed that the employee about whom he was being
questioned did not seek a "slip" from him and that this explained his
failure to receive employment until the Reichart conference. Gagany
and Murphy, the respondent's foremen, also testified that they did not
give employment to anyone at the conclusion of the strike who did not
have a "slip" from P. J. Sheehan.
While some of the employees named in the complaint testified that
they went to P. J. Sheehan at the conclusion of the strike and made
application for employment, a majority of them testified that they
did not do so, but followed the respondent's long established practice
2' No evidence was introduced at the hearing with respect to these six persons.
THE NILES FIRE BRICK COMPANY 905
of seeking employment at the gate to the respondent's plant. In this
connection, Gagany, the respondent's labor foreman, testified that the
prevailing practice prior to the strike had been to permit all the em-
ployees to enter the plant, at the beginning of the working day and
that the selection of the employees who were to work was then made
"around the kilns"; that after the strike this practice was changed so
that "steady" men were permitted to enter, the plant, and the others
held at the gate where the respondent's foremen would go to make
selections if any additional employees were needed. No testimony was
offered by the respondent showing that the purported rule requiring
the striking employees to make personal application for employment
to P. J. Sheehan was ever communicated generally 'to the striking em-
ployees, or that any of the union members named in the complaint was
ever informed by any of the respondent's officials or supervisors that
such a rule existed. We are satisfied from the evidence as a whole that
no such rule existed, or if it did, that it was not generally applied
to all the employees. Indeed, P. J. Sheehan testified that employees
could obtain employment without making application to him by being
called in by their foremen. Also, P. J. • Sheehan testified that he
talked to only about half of the respondent's employees after the
strike, from which we infer that many of the employees were returned
to their employment without making personal application to P. J.
Sheehan. That the respondent's purported rule was not general in
its application. is also shown by the fact that Aubrey Sheehan did not
go to his father to get a "slip" at the conclusion of the strike because,
Aubrey Sheehan testified, "It wasn't necessary." Therefore, we find
that those employees who sought employment at the gate of the re-
spondent's plant at the conclusion of the strike, but did not make per-
sonal application to P. J. Sheehan, followed the respondent's estab-
lished practice in seeking employment and made a sufficient applica-
tion for reinstatement.
Another matter of general importance in all the cases of discrimina-
tion against union members, discussed below, is the respondent's
seniority practice. Murphy, foreman of the shippers, testified that
after the strike the respondent attempted to give employment to the
"oldest hands." Murphy also testified that Nacco, an employee, was
not given employment after December 1937 because it was necessary
to reduce the force of employees and that the men retained were older
than Nacco in point of service. John Stover, foreman in charge of
brick manufacture, testified that Melee was retained in place of
Lawrence Infante in December 1937 because of his greater seniority;
and that Estes was laid off and Robert Boggs given employment in
December because Boggs had greater seniority with the respondent.
Pallante, production foreman, testified that Anthony Villio was not
given employment at the conclusion of the strike because it was the
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent's policy to observe seniority. We find, therefore, that the
respondent had an established practice of giving preference in em-
ployment to employees with greatest seniority.
Finally, we have found above that unfair labor practices of the
respondent were a substantial factor in causing the strike beginning
on July 19, 1937. Under Section 2 (3) of the Act the strikers remained
employees of the respondent. And we have frequently held that
where, as here, a strike has been caused in whole or substantial part
by the respondent's unfair labor practices, the striking employees are
entitled to their former positions upon making application therefor.21
Thus failure or refusal by the respondent to reinstate striking em-
ployees who applied for reinstatement at the end of the strike to the
positions to which they were entitled, by displacing, if necessary, per-
sons hired after the commencement of the strike and other employees
over .whom such striking employees normally had preference in em-
ployment, constitutes discrimination in regard to hire and tenure of
employment, within the meaning of Section 8 (3) of the Act.22 We
now set forth our findings with respect to each of the employees
involved.
Paul Yarwood began his employment with the respondent on March
1, 1934. He was employed as a kiln and shed wheeler, or shipper, at
the time of the strike on July 19, 1937. Yarwood was elected record-
ing secretary of the Union shortly after its organization, attended
all the conferences between the union representatives and the re-
spondent, and was elected president of the Union in January 1938.
Yarwood was not returned to the respondent's employment on
August 2, and thereafter participated as a member of the union com-
mittee in the Reichart conferences held on August 16, 17, and 18,
concerning the reinstatement of the union members who had not ob-
tained employment at the conclusion of the strike. Yarwood was
given employment on August 18 by the respondent as a result of the
Reichart conference.
When Yarwood returned to work on August 18 he was given em-
ployment in his old position as a shipper. On November 1 and 2,
Yarwood attended the hearing in Case No. R-362 and testified as a
witness for the Union. Thereafter Yarwood received much less work
Matter of Jeffery-DeWitt Insulator Company and Local No .. 455, United Brick and
Clay Workers of America , 1 N. L. R. B. 618 , order enforced in Je f ery-DeWitt Insulator
Company v. National Labor Relations Board, 91 F . (2d) 134 (C. C. A. 4), cert. den.
302 U. S. 731; National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862
(C. C. A. 2), cert. den. 304 U. S. 576.
u Black Diamond Steamship Corp. v. National Labor Relations Board, 94 F. (2d) 875
C. C. A. 2), cert. den. 304 U. S. 579; National Labor Relations Board v . American
Manufacturing Company and Nit-Art Employees, Inc., 106 F. ( 2d) 61 (C. C. A. 2) ;
Matter of Western Felt Works and Textile Workers Organizing Committee , Western Felt
Local, 10 N. L. R. B. 407; Matter of Stehli and Co. and Textile Workers Union of
Lancaster, Pennsylvania and Vicinity , Local $138, 11 N. L. R. B. 1397.
THE NILE'S FIRE BRIOK COMPANY 907
than the majority of the shippers employed by the respondent. Dur-
ing the period from November 1 to November 15, Yarwood received
1 day's work on the "hacks ," and 1 day's work as a shipper , making a
total compensation of $11 . 68; from November 15 to November 30 he
received 3 days' work as a laborer and 2 days ' work as a shipper, and
received $20.40 compensation for that period. From December 1 to
15 Yarwood received approximately 3 days' work and was paid $14.40,
from which $8.76 was deducted for coal furnished Yarwood by the re-
spondent . Yarwood was laid off on December 3, 1937.
The respondent contends that the record shows that the reason for
Yarwood not returning to his former employment after the strike
until August 18 was because he did not desire to do so, and did not
make application for work. In support of this contention the re-
spondent points to certain testimony of Sheehan and Yarwood rela-
tive to a conversation between the two during the course of the
Reichart conference on August 18. According to Sheehan , Yarwood
stated that he could not go back and work with the men who had
worked during the strike ; that upon Yarwood making this assertion,
Sheehan urged him to "go back there and be just as friendly with
those men as ever"; and that Yarwood then replied that it was
"pretty hard to do when those men stayed in there and we, were out
on strike ." When Yarwood was questioned concerning this incident
he denied that he at any time refused 'to go back to work at the con-
clusion of the strike , testifying that he had been at the gate to the
respondent 's plant "day in and day out" prior to the Reichart con-
ference on August 18 , and that on the occasion of his conversation
with Sheehan on August 18, he suggested to Sheehan that he keep the
"unfair men" together in separate "gangs" from the union men, in
order to avoid a "lot of trouble."
We believe that the remark made by Yarwood was, as he claimed,
made in conjunction with his suggestion concerning segregating the
employees who worked during the strike from the union members to
avoid trouble ; and that the statement does not detract in any manner
from Yarwood 's positive testimony that after the strike ended he was
constantly at the gate to the respondent 's plant seeking work, but
was not given employment until the Reichart conference. The first
time the respondent gave Yarwood employment , on August 18 as a
result of the Reichart conference, he accepted it and went to work
immediately . Sheehan, when asked if Yarwood was offered employ-
ment prior to August 18 and had refused to accept it , testified that he
did not know because, "I didn't have charge of giving the work."
We find that Yarwood made application for reinstatement at the end
of the strike and was an applicant for reinstatement from that time
until August 18; that he made this fact known to the respondent's
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officials by his constant attendance at the gate of the respondent's
plant ; and that employment was refused him until August 18, when
he was given work as a result of the Reichart conference. The re-
spondent's pay roll shows that at least two shippers with less seniority
than Yarwood worked during the period from August 2 until August
18. No evidence was offered by the respondent explaining the failure
to follow its acknowledged rule of giving employment to the oldest
employees in point of seniority. From the outset Yarwood was an
outstanding leader in the Union. It is plain from Clingan's reference
to him as a "rat" and "nuisance to the Company" at the Reichart con-
ference on August 17 that he had incurred the respondent's displeasure
because of his leadership in the Union. We find that the respondent
refused to reinstate Yarwood from August 2 to August 18 because of
his membership and activity in the Union.
In explaining Yarwood's failure to receive his share of work as
a shipper and his dismissal on December 3, Clingan testified that
in the latter part of November he observed Yarwood dump three
loads of brick during the course of a week; and that he "then instructed
Murphy, the foreman, to put Yarwood on some other work "because
I didn't think he was capable any longer." Clingan further testified
that when brick is dumped it is sometimes damaged, causing a loss
to the respondent. Murphy and Foster, brick inspector, corroborated
Clingan's testimony concerning the instructions they received from
Clingan to put Yarwood on other work, although Murphy admitted
that no explanation of the action taken was given Yarwood at the time
he was relegated to labor work in accordance with Clingan's instruc-
tions. Murphy also testified that he had not seen Yarwood dump
brick; and that during the 3 years that Yarwood had worked under
him as a shipper his work had been satisfactory. Foster, however,
testified that when Clingan informed him that Yarwood had dumped
brick he told Clingan that Yarwood" had done so quite often and
that he had seen Yarwood dump brick 10 or 12 times in the 3 weeks
preceding Clingan's instruction. He did not testify that Yarwood
was reprimanded for this practice, or that any explanation was
offered him at the time he was demoted to labor work. Foster also
testified that the brick-dumping incident occurred on November 13.
Yarwood denied that he had dumped brick. He testified that
he had been engaged in the work of a shipper- for nearly .4 years at
the time of his dismissal and that prior to the strike his "gang was
among the best of the shippers." He further testified that, after
the strike, he was not.put on his regular "gang" but went to work
with a "pick-up gang."
It is very unusual that the conclusion should be reached that Yar-
wood, engaged in the work of a shipper for a period of nearly 4
THE NILES FIRE BRICK COMPANY 909
years, "was not capable any more" because of the more. or less casual
observation of the respondent's chief executive, when none of Yar-
wood's immediate superiors who necessarily were in a better position
to observe his work had any occasion to complain. If the offense
of dumping brick was serious enough to justify relieving Yarwood
of his work as a shipper, it would be reasonable to assume that he
would have been informed by the respondent's officials of the reason
for his demotion to labor work. Therefore, notwithstanding the
respondent's explanation of the facts surrounding Yarwood's demo-
tion which ultimately led to his dismissal on December 3, we are
convinced that the entire course pursued by the respondent toward
Yarwood after his reinstatement was designed to culminate in his
elimination from the respondent's employment. The fact that Clingan
was responsible for Yarwood's demotion is significant, in view of
his having singled out Yarwood for special abuse at the Reichart
conference on August 17. Also, the circumstances surrounding Yar-
wood's demotion and his subsequent dismissal shortly after testifying
for the Union at the hearing in Case No. R-362 show that the elimi-
nation of Yarwood from the respondent's employment was hastened
by his giving testimony as a witness for the Union in that pro-
ceeding. Turning to the respondent's pay roll, we find that Taylor
and Accordina, both having less seniority than Yarwood, were still
employed as shippers after Yarwood was laid off on December 3.
Also, Samuel Hunter, who went to work for the respondent for the
first time on August 24, 1937, as a shipper, was retained in the
respondent's employment as a laborer when Yarwood was dismissed.
We find that Yarwood was demoted from the position of shipper
to the work of a common laborer on November 13 and thereafter
discharged on December 3 because of his membership and activity
in the Union and because he gave testimony under the Act.
Yarwood was unemployed from the time of his discharge on
December 3, 1937, until the time of the hearing.
John Bacos was working as a laborer at the time of the strike and
had been employed by the respondent in that capacity since March
8, 1934. Bacos was a member of the Union and active on the picket
line during the strike. On July 31, 1937, the Saturday before the
strike was officially terminated by the Union, Bacos applied for
work to P. J. Sheehan who took his name down and told him to
report at the gate of the plant the following Monday morning. When
Bacos reported for work on Monday, August 2, he was not given
employment. He reported for work thereafter every day until August
18, when he again spoke to P. J. Sheehan, and was given employ-
ment doing the same work he had been engaged in prior to the strike.
He was reinstated as a result of the Reichart conference.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After his return to the respondent's employment Bacos worked
regularly until November 1937. The last day on which he worked
was November 12, receiving only 4 days' work in that month. Bacos
did not join the Independent. The record does not show whether
or not he was requested to join the Independent.
P. J. Sheehan testified that Bacos did not receive employment
until August 18 because he was a kiln fireman and that there were
not enough kilns on fire at the end of the strike to give employment
to all the men working in that capacity. On the other hand, Gagany,
in attempting to explain Bacos' failure to receive employment at
the end of the strike, testified that he had not seen Bacos after the
strike until he returned to work on August 18.
The record shows that Sheehan was only partially correct in his
testimony that Bacos was employed as a kiln fireman. Bacos tes-
tified that he also did labor work, and the respondent's pay roll shows
that during some months in the course of his employment Bacos
did both labor work and kiln firing, and that during other months
he was engaged in labor work entirely. The respondent's pay roll
shows that Joseph Demertz and George Johnson were employed
for the first time on August 2 to do labor work. In addition, a
number of employees hired for the first time during the strike, thus
having less seniority than Bacos, were given employment doing labor
work during the period from August 2 until August 18. No evi-
dence was offered by the respondent that these men were doing work
which Bacos was not qualified to do, or explaining the respondent's
departure from its established rule of giving preference in employ-
ment to employees with greatest seniority. Under these circum-
stances, and in view of the respondent's anti-union activities, set
forth above in Section III A, we find that the respondent refused
to reinstate Bacos from August 2 until August 18 because of his
membership and activity in the Union.
The respondent offered no explanation regarding Bacos' dismissal
on November 12, other than the one set forth in its answer. Turn-
ing to the respondent's pay roll, we find that a number of,employees,
some of whom were employed for the first time during and after the
strike, were engaged in labor work after Bacos' dismissal on No-
vember 12. In the absence of a satisfactory explanation on the part
of the respondent regarding its failure to give employment to Bacos
rather than to employees with less seniority, and in view of the re-
spondent's hostility to the Union, we find that Bacos was dismissed
on November 12 because of his membership and activity in the Union.
Nick Nacco began his employment with the respondent on May 28,
1935, and was working as a shipper at the time of the strike on July
19,1937. He was a member of the Union and was active on the picket
line during the strike.
THE NILES FIRE BRICK COMPANY 911
Nacco was not' given work on August 2, but on August 18 he was
reinstated as a result of the Reichart conference. After his return
to work, Nacco had a conversation with Costello, a committeeman of
the Independent, relating to Nacco's employment with the respondent.
On this occasion Nacco complained in the presence of Costello that
he was not receiving enough work. Costello replied, "I will tell
you why. You attend these C. I. O. meetings. That is the trouble.
If you quit going to them meetings you will probably get work."
When the petition was circulated in the plant in October by Matteo,
Tackett, Wallace, and others, opposing a Board election, it was not
presented to Nacco for his signature. It was generally known
throughout the plant that Nacco was a member of the Union.
The last day on which Nacco was employed was December 3, 1937.
After he was laid off Nacco went to the gate of the respondent's plant
every morning for a period of 7 weeks but did not obtain employment.
The respondent bases its failure to reinstate Nacco after the strike
entirely on the assertion that there was not enough work for all the
shippers, and that all those who were working had greater seniority
than Nacco. However, as in the case of other union members who
were not reinstated at the end of the strike, the respondent's, pay roll
disproves this contention. The pay roll shows that Taylor, also em-
ployed as a shipper and having less seniority than Nacco, received
employment during the entire month of August.23 The respondent
offered no explanation for its departure from its seniority rule.
Under these circumstances and in view of the respondent's hostility
to the Union, we find that the respondent refused to reinstate Nacco
from August 2 until August 18 because of his union membership
and activity.
The respondent contends that Nacco was laid off on December 3
because he had less seniority than any of the employees retained in
the same capacity after December 3. This contention is not sup-
ported by the record. The pay roll shows that Taylor, referred to
above, was retained when Nacco was dismissed. Hunter, first em-
ployed by the respondent as a shipper on August 24, 1937, was re-
tained doing labor work after Nacco was dismissed. No contention
was made by the respondent that Nacco could not do the work per-
formed by these two employees, or that they were superior in ability
to Nacco. In view of the respondent's hostility to the Union and
respondent's departure from its acknowledged practice of giving em-
ployment to employees with greatest seniority, we find that Nacco was
discharged on December 3 because of his membership and activity
in the Union.
29 Taylor earned $188 .15 as a shipper during August.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From December 3, 1937, until the time of the hearing Nacco's
only earnings were $20 in W. P. A. work.
Harry Evans started to work for the respondent in April 1935
and was employed as a shipper at the time of the strike. He was a
member of the Union and active on the picket line during the strike.
On one occasion, prior to the strike, Murphy, foreman of the ship-
pers, asked Evans if he was a member of the Union, and when
Evans replied that he was, remarked, "That is all I want to know."
Evans occupied one of the respondent's houses. On July 27 he
received a letter from the respondent requesting him to vacate the
house by August 1. On July 30 Evans spoke to Clingan concerning
this notice to vacate. Clingan complained about Evans "calling our
renters scabs and rats over there," and told Evans that he had affi-
davits in his possession against Evans and his wife. Evans explained
during the coure of his examination that Mrs. Warmock, wife of one
of the respondent's employees, had cooked for the employees who
worked during the strike, and that Clingan's complaint had reference
to a controversy between Evans' wife and Mrs. Warmock. Evans ad-
mitted that on one occasion he had called Mr. Warmock a "scab."
Later, the same day, Evans again asked Clingan whether or not he
would be required to move. After some discussion Clingan stated,
"I'll tell you Evans, if you folks over there can behave yourselves
and quit calling our renters scabs and rats you can retain your
house." Evans then assured Clingan "that there won't be any more
arguments, or any disturbances," and then questioned Clingan about
employment. Clingan told him to report for work the following
Monday, August 2, stating, "I'll tell you now there won't be any
work much, these fellows that worked through the strike come first
regardless of anyone else."
Evans reported for work on August 2 but was not given employ-
ment. Thereafter he reported for work every day but was refused
employment until August 18, when he was given work as a result of
the Reichart conference.
After his return to the respondent's employment Evans spent a
day on labor work and then was given employment as a shipper.
When the petition in opposition to a Board election was circulated
in October, it was presented to Evans by Tackett, but Evans refused
to sign it. Evans did not work as regularly as other shippers during
September, October, and November. He received only 7 days and
4 hours' work in November, making a total compensation of $39.59.
whereas other shippers received much more employment. On De-
cember 4, Evans became ill from bloodpoisoning and was unable to
work for a period of over 3 weeks.
THE NILES FIRE BRICK COMPANY 913
On some undisclosed date in December Evans was in need of money
and went to the respondent 's office and requested Higgins, the re-
spondent 's paymaster, for an advance of.$5. According to the testi-
mony of Evans , Higgins stated , in substance , that he could not under-
stand how Evans could ask the respondent for favors after "back-
slapping and going before the Labor Board and filing complaints."
Higgins then gave Evans $5, stating further, "By the way hove
would it strike you to be missing on the Labor Board hearing?"
When Evans replied that he did not know, Higgins continued,
"Think it over. It would make it worth your while. " Higgins' re-
mark had reference to the Board hearing in Case No . C-958.
Evans reported for work on or about January 2 or 3 but did not
obtain any work during the month of January . Another notice was
sent him to vacate the respondent 's house on February 9, 1938. At
that time Evans was working on W. P. A. He spoke to Sheehan and
agreed to "work out" the back rent due the respondent on his "off
days" with the W . P. A. In accordance with these arrangements
Evans worked on March 2 and 3, and his earnings were applied to
the back rent due the respondent.
Sheehan testified that Evans was not given work during the'
period between August 2 and August 18 because Evans did not come
to see him until after August 2, and that Evans was not put to work
at that time because there was no work for him. Murphy testified
that he did not know whether or not Evans applied for work be-
fore August 18, but claimed that Evans was "too slow" and that men
complained so much about working with him before and after the
strike that he was given employment as a hacker when he was finally
put back to work.
In view of Murphy's uncertainty as to whether or not Evans was
an applicant for reinstatement , and Evans' positive testimony con-
cerning his conversation on July 30 with Clingan, and his subsequent
application for work on August 2, we find that Evans was an appli-
cant for reinstatement on August 2, and thereafter , but that he was
denied reinstatement by the respondent until August 18 . No reason-
able explanation was given by the respondent concerning its failure
to give Evans employment during the period from August 2 to
August 18 , since the record shows that many employees with less
seniority than Evans worked during that period. Evans admitted
that he was slow in his work , but testified without contradiction that
he worked with Wagner and Taylor before the strike because all three
worked at about the same "speed. " The pay roll shows that Taylor,
whose seniority was less than Evans, was given employment at the
end of the strike and worked during the entire month of August. In
view of the above facts and the respondent 's hostility toward the
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union , we find that the respondent refused to reinstate Evans from
August 2 until August 18 because of his union membership and
activity.
The respondent offered no explanation other than that stated in its
answer, for its failure to give Evans work in January after he had
recovered from his illness and had applied for work. Two shippers,
Hunter and Taylor , both had less seniority with the respondent
than Evans , and were given employment in January and February.
We find that the respondent discriminated against Evans in the
amount of work given him between September 1 and December and
discharged him on January 2 and refused to reinstate him thereafter
because of his membership and activity in the Union.
With the exception of March 2 and 3, 1938 , the 2 days on which
he. worked for respondent to pay off his back rent , Evans has had
only W. P. A. employment from the time of his discharge until the
time of the hearing.
Alex Miller was first employed by the respondent in 1928 as a
laborer. From 1933 to the time of the strike on July 19, 1937, he
worked as a kiln fireman . On the day the strike began, Gagany and
Clemente, foremen, urged Miller not to join the strikers , but to stay
and attend the kilns, and warned him that he would lose his job if
he became a member of the Union. Miller, however , joined the
Union, went out on strike , and was thereafter active on the picket
line.
The record shows that Miller does not speak English very well,
making his testimony difficult to understand . It is reasonably clear,
however, that he applied for work on July 31, the Saturday before
the strike was called off by the Union, and attempted to see Sheehan,
but was unsuccessful . The following day Miller saw Sheehan who
took his name down, and told him that he would "find out" about
giving Miller employment . Miller waited for .a week and then spoke
to Sheehan who told him that he was not needed . On August 19
Miller spoke to Sheehan again and was sent to Gagany, who put him
to work. Although it is not clear from the testimony , we assume
from the date of Miller's reinstatment that his reinstatement was
due to the Reichart conference.
After his reinstatement Miller worked until October 29. On that
date Matteo, General Manager Sheehan 's son-in-law , requested Miller
to join the Independent . Miller refused , stating that he was a mem-
ber of the Union, and Matteo told him that he would lose his job.
This was the last day Miller worked . Thereafter Miller frequently
reported at the gate of the respondent 's plant, but was not selected
for work.
THE NILES FIRE BRICK COMPANY 915
The respondent contends that Miller's own testimony shows that he
did not apply for work until August 19 or 20. We do not agree
with this contention. As stated above, it is clear from the record
that Miller had great difficulty in understanding the questions asked
him. Nevertheless, Miller testified, upon being questioned on cross-
examination by counsel for the respondent, that he applied to Sheehan
for work the Saturday before the strike was officially terminated by
the Union, and was told by Sheehan that he would "find out" about
giving him employment. Indeed, Sheehan corroborated this testi-
mony to a certain extent by stating that Miller came to him with
reference to obtaining employment "one day" after the first of
August, and that he informed Miller that he would be put to work
"as soon as there was an opportunity." When questioned concerning
the reason for Miller's failure to obtain employment until August
20, Sheehan did not claim that Miller had not made application be-
fore that date, but testified that Miller was not employed at the end
of the strike because "there wasn't kilns enough on fire to take care
of all the kiln firemen."
Miller testified that several kiln firemen, particularly John Sant-
angelo and George Infante, both of whom had less seniority than
Miller, were employed during the period from August 2 until August
20 doing work which he was entitled to. do. On the other hand,
Clemente, the night. foreman under whom Miller worked, testified
that Miller was an "extra" kiln fireman, that there was not enough
work for everyone, and that the regular firemen were given prefer-
ence. On the record as a whole, we do not credit Clemente's testi-
mony. In his testimony he attempted to disparage Miller's compe-
tence as a workman notwithstanding Miller's 8 or 9 years' service with
the respondent. When questioned by counsel for the respondent
concerning Miller, Clemente began a long tirade to the general effect
that he had attempted since 1933 to make a kiln fireman out of Miller
but finally had given up in 1936 and made him an "extra" fireman,
that Miller was the slowest man in the plant, and that men put to
work with Miller objected and threatened to quit because be fought
with them. Clemente's testimony regarding the alleged incompetence
of Miller was not corroborated by any of the other supervisors or
officials of the respondent, or by any of the workmen who are alleged
to have objected to working with him. One significant statement
made by Clemente during the course of his testimony, however, was
his admission that he attempted to get the kiln firemen to remain at
work and attend the kilns on the first day of the strike. Since Cle-
mente and Gagany had urged Miller to remain at work on the first
morning of the strike, and had warned him that he would lose his
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job if he joined the Union, we are of the opinion that Miller's joining
the Union in spite of their warning caused the respondent to refuse
to reinstate Miller at the end of the strike. This finding receives
further support from the respondent's pay roll which shows that
many kiln firemen with less seniority than Miller were given employ-
ment during the period from August 2 until August 20. Even if
Miller was an "extra" fireman, as asserted by Clemente, the pay
roll shows that other kiln firemen in the same classification as Miller
and with less seniority,24 worked from August 2 to August 20.
The respondent contends that Miller was laid off on October 29
due to lack of work because of a decrease in its business. In this
connection, Clemente testified that Miller had not reported for work
for about 7 months prior to the hearing, although he had instructed
Miller that when his turn came he would be given work; and that
he had inquired of some of the employees concerning Miller's where-
abouts within the 4 months preceding the hearing because he could
have given him some work during January and February 1938.
It is possible that Miller did not continue going to the gate of the
plant regularly from the date of his dismissal on October 29 until
the date of the hearing in March 1938, and that for this reason Clem-
ente had not seen him for some time. We accept as true, however,
the testimony of Miller that lie presented himself for work often after
his dismissal on October 29, but was never given employment. If
he discontinued this practice after a reasonable length of time we
think he was justified in so doing since he had a right to assume
that it was useless. Furthermore, the length of time during which
Miller sought employment after October 29 has little bearing on the
question whether or not he was discriminated against on October 29.
The respondent's pay roll shows that the respondent discriminated
against Miller in dismissing him on October 29. A number of kiln
firemen. with less seniority than Miller, some of whom, like Miller,
were part-time firemen and part-time laborers, were retained in the
respondent's employment when Miller was dismissed on October 29.
The respondent made no attempt to explain why these employees with
less seniority than Miller were retained when he was laid off, unless
we consider Clemente's animadversions on Miller's competence as a
justification for a departure by the respondent from its practice of
observing seniority. But we have already stated that we do not credit
Clemente's testimony in this respect. One fact which stands out is
that Miller was laid off on the same day he refused to join the Inde-
pendent when requested to do so by Matteo, son-in-law of P. J. Slice-
24 Miller is designated on the pay roll as "kiln fireman and labor." Others with the
same designation , such as Santangelo, having much less seniority than Miller , worked
during the entire month of August.
THE NILES FIRE BRICK COMPANY 917
han, and was told by Matteo that he would lose his job when he re-
fused to join. Another significant fact is that in nearly every case
the union members who were refused reinstatement at the end of the
strike, and thereafter, reinstated as a result of the Reichart conference,
were the ones selected for dismissal when the respondent reduced its
force of employees.
We find that the respondent discharged Alex Miller on October 29
because of his refusal to join the Independent and because of his
membership and activity in the Union.
Joe Villio, also known as Joe Weaver, began his employment with
the respondent in 1933. At the time of the strike Villio was em-
ployed as an off-bearer in the clay yard. He joined the Union prior
to the strike and was active on the picket line during the strike.
Villio reported for work every day after the strike ended, but
was not given employment until August 18. On that date he was
not given work in his old position in the clay yard but was employed
as a laborer. Villio's reemployment was a result of the Reichart
conference.
As found in Section III A above, late in October Matteo warned
Villio, who had refused to sign the petition circulated in opposition
to a Board election, that "later on when things boom, don't say we
didn't come around and tell you to sign it." After this warning he
received no employment in November and only 6 hours' work on
December 7. This was the last day Villio received employment, and
the premium due on his insurance was deducted from the corilpensa-
tion for these 6 hours' work. In Section III A above we found that
in November Foreman Gagany told Villio at the gate to the respond-
ent's plant that Villio was not going to ,get much work because he
"didn't sign the Independent Union."
The respondent offered no explanation at the hearing for its failure
to give Villio employment until August 18 and his subsequent dis-
missal on December 7. In its brief, however, the respondent con-
tends that the pay roll indicates that Villio was an "extra" man
who did not receive regular employment before the strike, and that
this accounts for his failure to receive regular employment after the
strike.
While the record shows that prior to the strike Villio received less
work than others employed in the same capacity, the respondent's con-
tention is not supported by the record. The pay roll shows that three
men with less seniority than Villio worked as off-bearers in the yard
in August during the period Villio was refused reinstatement, and
that these three employees remained in the respondent's employ when
Villio was dismissed. Even if we concede that Villio was an "extra"
man, the pay roll shows that men employed for the first time during
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strike and even after the strike had ended , were given employment
doing labor work during August, and also after Villio's dismissal on
December 7. No evidence was offered by the respondent that Villio
could not do the work for which these employees were retained. Under
these circumstances and in view of the respondent 's hostility to the
Union, the warnings given Villio by Gagany and Matteo , and the
respondent 's domination of the Independent , we find that the respond-
ent refused to reinstate Villio from August 2 until August 18, there-
after gave him less work than other employees engaged in the same
capacity , and discharged him on December 7 because of his union
membership and activity and because of his failure to join the
Independent.
From December 7 until the .time of the hearing Villio has had only
W. P. A. work.
Heman Estes began his employment with the respondent on July 19,
1935, and worked as an off -bearer in the silica press until the strike
on July 19, 1937 . Estes was a member of the Union and was a picket
during the strike. At the time of the hearing he was financial secre-
tary of the Union.
Estes was not given employment at the end of the strike on August 2,
but was thereafter reinstated on September 2. On or about August
7 Estes and a number of the employees , including John Toth and
Avery Tackett, were involved in an affray at the home of one of the
employees , and Estes was shot in the foot by Tackett. There is no
evidence in the record explaining the nature of this affray other than
Estes' testimony that it was an "after clap" of the strike. A complaint
was filed against Estes, Toth, and Tackett, and they were bound over
to the grand jury because of their participation in this affray. It is
not clear from the record when grand jury action was taken in the
matter, but presumably it was some time before September 1, since
both Sheehan and Estes testified that Estes was not given employment
until he got "through with the grand jury." As stated above in Sec-
tion III A , Estes was one of the four employees expressly refused
reinstatement at the time of the Reichart conference on August 18.
When Estes returned to the respondent's employment on September
2, he was not given his old job back immediately , but was given em-
ployment doing labor work . After doing labor work for 2 weeks he
returned to his old position as an off-bearer in the silica press where
he worked regularly until on or about December 13. The respondent's
plant shut down from December 13 until December 28. When the
plant resumed operations on the latter date Estes reported for work.
He was not given employment and was told by Stover , foreman, that
married men were being given preference . Estes then called Stover's
attention to the fact that two single men, both his junior in point of
THE NILES FIRE BRICK COMPANY 919
service, were working at the time, and Stover stated that he could do
nothing for him then, but would "try to make it up" the following
week. The following week Estes again reported for work and found
that his employment card had been removed from the rack. When
Stover came to, the plant Estes inquired about the absence of his card
from the rack and was told by Stover that there was nothing for' him
to do because work had to be given to the "older mer-" Estes went to
the plant the night following his conversation with Stover and was
stopped at the gate by the watchman who told him that he had re-
ceived orders not to let Estes in the plant. Estes received no employ-
ment thereafter.
From the testimony of P. J. Sheehan it appears that the only ex-
planation offered by the respondent for its failure to give Estes
employment until September 1 was that he was bound over to the
grand jury. Admittedly, however, Tackett, who had participated
in the affray, was only laid off for a few days at the time of the
affray, and was then given employment because, Sheehan testified,
"they needed a setter and he was put back on." In view of the record
as a whole, however, we are not satisfied with the respondent's expla-
nation for giving Tackett employment before action was taken by
the grand jury, and not giving Estes employment. We are convinced
that Tackett's activity on behalf of the Independent was the reason
for the respondent's indulgence in his case, and by the same token,
that Estes was denied 'reinstatement until September 1 because he
was an active member of the Union.
Sheehan testified that Estes was not given work after December
13 because it was necessary to reduce the force of employees and that
he felt that it was his duty to give Roy Boggs, an employee with
greater seniority, work instead of Estes.
The respondent's pay roll shows that Roy Boggs was first em-
ployed by the respondent in 1927, and thus corroborates Sheehan's
testimony that Boggs was an employee with greater seniority than
Estes. Roy Boggs, however, had been employed as a wet-pan man
up to and including December, and was thereafter given employment
as an off-bearer in the silica press, work in which Estes had been
engaged. There are many instances in the record showing that the
respondent did not display the same solicitude about union members
with greater seniority as it showed Roy Boggs. Many of the union
members named in the complaint were dismissed because there was
nothing available in their particular kind of work, and no effort was
made to give them employment in any other capacity, even though
they had greater seniority. Moreover, the record shows that, in
addition to Roy Boggs, another employee by the name of Thomas
Boggs, employed for the first time during the strike as a wet-pan
283029-41-vol. 18--59
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man and laborer was given employment after Estes was laid off as
an off-bearer in the silica press. No explanation was offered by the
respondent for its departure from the rule expressed by Sheehan of
giving employment to employees with greater seniority. In addition
to Thomas Boggs, five other employees with less seniority than Estes,
listed on the respondent's pay roll as off-bearers in the silica press,
were retained in the respondent's employment when Estes was laid off.
We find that the respondent refused to reinstate Estes from August
2 until September 2 and discharged him on December 28 because of
his membership and activity in the Union.
Estes was unemployed from December 28, 1937, until the time of
the hearing.
John Toth was first employed by the respondent in 1932 and for
3 or 4 years preceding the strike worked as a kiln fireman. He was
a member of the Union and was active on the picket line.
During the period when Toth was on the picket line he was ap-
proached by Gagany, Clemente, and P. J. Sheehan nd requested to
return to work, but refused to do so. Toth's reply to their request
was that he would return to work when "they were ready to sign the
contract."
At the end of the strike Toth obtained It "slip" from Sheehan to
return to work and thereafter presented it to Gagany, the respond-
ent's labor foreman. Gagany told him that he did not have a job
because he "talked too smart on the picket line." Like Estes, the
respondent expressly refused to reinstate Toth at the time of the
Reichart conference on August 18 because he was bound over to the
grand jury by reason of his participation in the affray on August 7.
He was reinstated on September 1. He was not given work as a
kiln fireman immediately, but was employed wheeling coal. There-
after he worked part of the time as a kiln fireman and part of the
time wheeling coal. Toth was still employed by the respondent at
the time of the hearing. He claims, however, that the respondent
discriminated against him in not giving him full-time employment
as a kiln fireman. In support of this claim Toth testified that George
and John Infante, and John Sunday, three new men, were firing the
kilns in his place.
The facts set forth above in connection with the respondent's re-
fusal to reinstate Estes from August 2 until September 1 apply
equally to Toth. For the reasons stated above in connection with
Estes, we find that the respondent refused to reinstate Toth from
August 2 until September 1 because of his membership and activity
in the Union.
The record, however, does not support Toth's claim that the respond-
ent discriminated against him after he returned to work on September
THE NILES FIRE BRICK CO_IIPANY 921
1. The respondent's pay roll shows that prior to the strike Toth did
both kiln firing and labor work, and that since his reinstatement on
September 1, his employment has been in the same dual capacity.
The pay roll also shows that George and John Infante, two of the
employees referred to by Toth as having been given work in his place,
are not new employees, but were employed in the same capacity as
Toth before and after the strike. John Infante has much greater
seniority and for months before the strike received more regular work
as kiln fireman than Toth. Although .George Infante has less seni-
ority than Toth, the earnings of Toth and George Infante were
approximately equal for several months prior to the strike, and the
same is true of their earnings after September 1. The third man
mentioned by Toth, John Sunday, does not appear on the respondent's
pay roll.
We find that the respondent did not discriminate in regard to the
hire and tenure of Toth after September 1.
Alfred Whitt started to work for the respondent in 1928 and at
the time of the strike was a dry-press operator. Whitt was very
active in the Union and participated in most of the conferences with
the respondent as a member of the committee of the Union. From
August 2 until his reinstatement on August 18, Whitt reported for
work at the gate of the respondent's plant daily but was not given
employment. Whitt's reinstatement was a result of the Reichart
conference.
When Whitt was reinstated on August 18, he worked on labor for
a few days, was then given some employment in his old position
as a dry-press operator during October and November, and at the
time of the hearing was working as an off-bearer in the silica press.
In December Whitt was asked by Matteo to become a member of
the Independent. Whitt told Matteo that he would not sign "but
would talk to him when the Independent got a majority." Matteo
then stated that he would give Whitt another chance.
The respondent contends that Whitt was not given work until
August 18 because its plant was running only one turn when opera-
tions were resumed on August 2; that John McMahon, who regularly
operated the clay press on the turn opposite the one on which Whitt
worked as a regular clay-press operator, was given employment
because he had greater seniority than Whitt.
While the record bears out the respondent's contention that the clay
press was only being operated one turn during the period from August
2 to August 18, and that John McMahon, the operator thereof, was
an employee with greater seniority than Whitt, these facts are not
conclusive on the issue as to whether or not the respondent's refusal
to reinstate Whitt from August 2 to August 18 was discriminatory.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Whitt was one of the union leaders from the beginning of its organi-
zation. Clingan singled out Whitt and Yarwood for special abuse
by his reference to them at the Reichart conference of August 18 as
"rats and nuisances to the Company." It is plain, therefore, that
Whitt would be a logical victim of the respondent's systematic dis-
crimination against union leaders at the end of the strike. Since his
position as operator of the dry press was not available to Whitt at
the end of the strike, the respondent's failure to give him any employ-
ment until August 18 must be compared with the respondent's treat-
ment of other employees of long standing who were not leaders in the
Union, when their particular employment was not available. An
example of the respondent's solicitude in giving employment to em-
ployees not identified with the Union was its treatment of Roy Boggs,
referred to above. In December, Boggs, who was regularly employed
as a wet-pan man, was given Estes' job and Estes, a union member
who was an off-bearer in the silica press, was laid off. Sheehan ex-
plained this action by stating that he felt it was "his duty" to give
employment to Boggs because Boggs was an employee with greater
seniority. The employment records of Boggs and Whitt show that each
has between 9 and 10 years' service with the respondent. Since many
employees with less seniority than Whitt worked during the period
from August 2 to August 18 no reason appears for the nonexistence
of a "duty" to give Whitt employment during that period. The
respondent's pay roll shows that two employees were hired on August
2 to do labor work. The respondent offered no explanation for not-giv-
ing Whitt the work for which these two men were employed. Donald
Underwood, first employed by the respondent during the strike,
worked during August as an off-bearer in the silica press, work which
Whitt frequently performed before the strike, and in which he was
engaged at the time of the hearing. In addition to Underwood, at
least four employees who were employed for the first time by the
respondent 'during the strike worked during the entire month of
August doing labor work.
We find that the respondent refused to reinstate Whitt from August
2 to August 18 because of his union membership and activity.
The Trial Examiner found that Whitt was also discriminated
against because he was not given regular employment on the clay press
after his return to work on August 18. This finding is based on the
fact that Whitt was employed as an off-bearer in the silica press from
and after December, whereas, Stamper, a member of the Independent,
who was first employed on September 15, 1937, was given work oper-
ating the clay press. The respondent objects to this finding as not
supported by the evidence.
Stover, foreman, testified that an off-bearer in the silica press made
the same earnings as a clay-press operator; that the clay press did
THE MLES FIRE BRIOIK COMPANY 923
not operate regularly during December and the following months; and
that if Whitt had been given work on the clay press when it operated,
his compensation would have been less than that which he received
working as an off-bearer in the silica press. Whitt's own testimony
corroborates that of Stover to the effect that the clay press did not
operate regularly during the last 8 months of his employment with the
respondent . Whitt further testified , however, that for 6 or 7 weeks
prior to the hearing the clay press had been "running steadily."
From Whitt 's testimony it appears that his preference for the posi-
tion of clay -press operator , and his claim of discrimination because
Stamper was given this employment in his stead , is based entirely on
the fact that he would have received more compensation as a clay-
press operator than he received working as an off -bearer in the silica
press. The respondent 's pay roll , however, shows that Whitt's compen-
sation as an off-bearer in the silica press from and after December was
a little in excess of that of Stamper operating the clay press during the
same period . Since Whitt would not have received more compensa-
tion operating the clay press than he received as an off-bearer in the
silica press , and in view of the basis on which Whitt claimed discrimi-
nation, we are not satisfied that the respondent discriminated against
Whitt after August 18.
We find that the respondent did not discriminate against Whitt in
regard to hire and tenure or terms and conditions of employment after
August 18.
Thomas Liberatore was first employed by the. respondent in March
1935 and was working as a laborer at the time of the strike. He was
very active in the organization of the Union and was elected its presi-
dent on June 7,1937.
Liberatore did not make application for employment until August 7.
On that date he questioned P. J. Sheehan at 'the gate of the respond-
ent's plant concerning employment, and was told that there was no
employment available for him at that time. It was due to the efforts of
Liberatore that Reichart came to Niles and held the conference con-
cerning reinstatement of the employees who had not been given
employment at the end of the strike . Liberatore was one of the four
employees expressly refused reinstatement at the Reichart conference.
The respondent, however, reinstated him on September 1.
During September and October Liberatore was given various kinds
of work at common labor . October 29 , 1937, was the last day of
Liberatore 's employment . On November 1 and 2 he attended the
hearing in Case No. R-362 and testified on behalf of the Union. He
testified in the instant case that he applied for work at the gate to the
respondent 's plant at the conclusion of the hearing in Case No. R-362,
but was not given employment , and that he was unable to obtain any
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment with the respondent thereafter. The complaint alleges
that Liberatore was discharged on October 29 and thereafter refused
reinstatement for engaging in union activity and giving testimony
under the Act.
The respondent contends that Liberatore was not given employment
until September 1 because of a new State law relating to occupational
diseases which became effective either on July or August 15. Sheehan
explained that due to the fact that Liberatore had at one time been
afflicted with tuberculosis he had requested Liberatore at one of the
"meetings" to submit to a medical examination, and that Liberatore
was not employed until the doctor making the examination had sub-
mitted his report of Liberatore's physical condition. He testified fur-
ther that the doctor's report recommended that Liberatore should be
kept away from silica dust, and for this reason, when Liberatore was
given employment on September 1 an attempt was made to give him
work in the open which would not subject him to silica dust.
Although the testimony is not altogether clear, the record supports
the contention of the respondent that Liberatore submitted to a physi-
cal examination and was not given employment until a report of the
examination had been received. The respondent, however, did not
request Liberatore to submit to a physical examination until the
Reichart conference on August 18.25 There is no satisfactory explana-
tion by the respondent for its failure to employ Liberatore from August
7, the date on which he applied for reinstatement, and August 18, the
date on which he was requested to submit to a physical examination.
In view of the respondent's practice of discriminating against union
members at the end of the strike and in view of its especial and intense
hostility to Liberatore, we find that the respondent refused to reinstate
Liberatore from August 7 to August 18 because of his membership and
activity in the Union. We also find that the respondent did not dis-
criminate against Liberatore in not giving him employment between
August 18 and September 1, during which period the doctor's examina-
tion and report of his physical condition were made.
The respondent contends that Liberatore was not refused employ-
ment after testifying at the Board hearing on November 1, but that he
voluntarily quit his employment prior to the hearing on October 29.
On cross-examination by counsel for the respondent, Liberatore testi-
fied, in substance, that toward the latter part of October he was given
work in the sun creosoting ties, that the creosote burned his hands, and
that he requested Gagany to give him work in a shadier place. Ac-
cording to Liberatore, Gagany's answer to his request was, "If you
can't do that, we ain't going to put you anywhere else. You can go
^ The only meeting with the respondent which Liberatore attended after the strike
and prior to September 1 was the Reichart conference on August 18.
THE NILES FIRE BRICK COMPANY 925
home." Liberatore testified further that he then went home. There
is no evidence that. Liberatore ever worked after this incident. We
think that this testimony shows that Liberatore quit. In view of
the fact that the respondent found it necessary to give Liberatore
work out in the open, away from silica dust, pursuant to the doc-
tor's report, we think that the record.does not warrant a finding that
Liberatore was given work creosoting ties in the sun in an effort to
cause him to quit.
We find that the respondent did not discharge Thomas Liberatore on
October 29, 1937, and thereafter refuse to reinstate him because of his
membership and activity in the Union or because he gave testimony
under the Act.
Wendell Mathews was employed by the respondent in August 1933
and worked as a kiln laborer prior to the strike. He joined the Union
and was on the picket line during the strike. Mathews was not rein-
stated at the end of the strike, but was given employment on August 19
as a result of the Reichart conference. Thereafter Mathews worked
until November 2. The following day he reported for work at 4: 30
p. m. and was told by Gagany to return to work at 6 p. in. on the same
day. Mathews testified that when he returned at the appointed hour
Gagany "had changed order" and sent him home, that he became ill the
following day, was under a doctor's care for 7 weeks, and "didn't go
near the plant." Mathews received no employment with the respond-
ent after he recovered from his illness.
The respondent contends that Mathews was not given work at the
end of the strike because there was no laboring work for him and
because he appeared for work in a state of intoxication. In support of
this contention, Sheehan testified that Mathews came to him about
August 1 and inquired concerning employment, and that he advised
Mathews that he would be put to work as soon as work was available.
Sheehan also testified that Mathews was partly intoxicated on this
occasion.
In view of Mathews' positive testimony that he was an applicant
for employment on August 2, and thereafter, and Sheehan's admission
that Mathews applied to him for work "along the first of August,"
we do not think the respondent has satisfactorily explained its failure
to give Mathews employment until after the Reichart conference. It
will be noted that Sheehan did not claim in his testimony that his
refusal to reinstate Mathews was due to his alleged intoxication, but
based his refusal entirely on the fact that there was no work for
Mathews. On the other hand, Mathews testified that a new man
named "Joe" was given his job during the period from August 2 to
August 19. The pay roll shows that Joe Demeretz, first employed by
the respondent on August 2, worked during the entire month of Au-
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gust. We find that Joe Demeretz is the "Joe" referred to by Mathews.
In addition to Demeretz, a number of employees hired during the
strike worked on labor during the period from August 2 to August
19. The respondent introduced no evidence that Mathews could not
do the work which these employees performed, nor was any explana-
tion offered by the respondent for departing from its customary rule.
of giving employment to the employees with greatest seniority. We
find that the respondent refused to reinstate Mathews from August 2
to August 19 because of his membership and activity in the Union.
We are unable to reach the same conclusion regarding the termina-
tion of Mathews' employment on November 3. Although Mathews
claimed, that he was not given regular work after his return to the
respondent's employment his earnings until November 2 are com-
parable to the earnings of other employees engaged in the same work
The evidence concerning the events on November 3 is not sufficient to
show that he was discharged on that date. Mathews' own testimony
shows that after November 3 he was unable to work for a period of 7
weeks because of illness. He did not testify that he attempted to
obtain employment with the respondent after he recovered from his
illness.
Under these circumstances, we find that the respondent did not dis-
criminate against Mathews in regard to hire and tenure or terms and
conditions of employment after August 19, 1937.
Anthony Villio was employed by the respondent in 1926 and
worked in the clay department at the time of the strike. He was
engaged in wheeling bricks off the clay press. Villio was a member
of the Union and of the grievance committee which met with the
respondent's management, and was active on the picket line. After
the strike ended, Villio was at the gate to the respondent's plant daily,
but was not given employment until August 18.28
When Villio returned to work he was first given work as a shipper,
but at the time of the hearing had resumed his old employment in the
clay yard. Villio had no complaint regarding his employment at the
time of the hearing, testifying that he was working whenever the
plant operated.
Villio testified that Huffman, an employee who had less seniority
than Villio and who worked on the night shift prior to the strike, was
given Villio's job on the day shift during the period from August 2
to August 18. Sheehan offered no explanation for the respondent's
failure to give employment to Villio other than that there was no work
for him. Foreman Pallante testified that "probably" the reason for
m Although Villio did not testify that he received employment as a result of the
Reichart conference we assume from the date of his reemployment that such was the
case.
THE NILES FIRE BRICK COMPANY 927
Villio not having been given work was that he was not there when
the plant first started up and the "oldest fellows were put on."
In view of Vi]lio's positive testimony that he applied for rein-
statement at the end of the strike, and the vagueness and uncertainty
of the respondent's supervisors on the point, we find that Villio
applied for reinstatement on August 2, but that the respondent re-,
fused to reinstate him. The respondent's pay roll shows that the
respondent's rule as described by Pallante, of giving work to the
"oldest fellows" was not applied in the case of Villio. Huffman was
first employed by the respondent in 1934 whereas Villio, as before
stated, began working for the respondent in 1926. The respondent
introduced. no evidence to refute Villio's testimony that Huffman
worked on the night shift prior to the strike and was given Villio's
job on the day shift when the plant resumed normal operations at
the end of the strike. We accept Villio's testimony as true in this
respect. We find that the respondent refused to reinstate Villio
from August 2 to August 18 because of his membership and activity
in the Union.
Alex Sabo was first employed by the respondent in 1927 and worked
as an off-bearer in the clay department. Sabo was a member of the
various union committees which met with the respondent before the
strike. After the strike ended he did not obtain employment until
August 21 when he was reinstated. He was still employed by the
respondent at the time of the hearing.
The respondent contends that after the strike ended Sabo did not
apply for reinstatement until August 20, the day before he was rein-
stated. As set forth in Section III A above, on August 14 Sabo and
Villio told P. J. Sheehan that they had been sent by the president
of the Union to try to make an agreement to return to work all the
union members who had not been given employment after the strike
ended. Sheehan replied, "Don't come here as a committee; come
here as an individual and I might talk to you. Your organization
is broken up and your officials have resigned, and I don't see where
you can vouch for any man." It is plain that this request by Sabo
and Villio was in effect an application for reinstatement made by
the Union in behalf of union members, including Sabo and Villio,
and we so find. Sheehan refused even to consider this application
unless made by employees individually. An application for rein-
statement may be made by employees through their Union. Shee-
han's refusal to pay any attention to the request of Sabo and Villio
was tantamount to a refusal to reinstate all employees for whom
reinstatement was requested. We find, therefore, that Sabo applied
for and was refused reinstatement on August 14. The conversation
between Sabo and Sheehan on August 20, set forth above in Sec-
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion III A, shows why Sabo was not given work from August 14 to
August 21 . Sabo told Sheehan that he was sorry for "blowing off,
or having anything to do with union activities , and things like that."
Sheehan replied, "All right Alex, I will take you back. You know
you can't get anywhere by coming in here as a group . If you talk
for yourself , you will get somewhere."
We find that the respondent refused to reinstate Sabo from August
14 to August 21 because of his membership and activity in the
Union.
Anthony ( Tony) Nardo was employed by the respondent in May
1936 and worked as a laborer at the time of the strike . He joined
the Union and was active on the picket line. At the end of the
strike on August 2, Nardo was given employment by the respondent
at common labor, work in which he was engaged prior to the strike.
When the petition opposing a Board election was circulated in
October, Nardo was requested to sign it by Shannon , a truck driver,
but refused to do so. Thereafter , during the month of November,
Nardo only received 5 days' employment . On November 23 Nardo
was told by his foreman that it was useless for him to report to work
because there would not be anything for him to do.
Sheehan testified that he did not know why Nardo had not received
work after November 23. Gagany testified that Nardo had not re-
ceived work after that date because he was a "new" laborer and
there was no work for him. The respondent's pay roll , however,
shows that a number of employees hired by the respondent during
and after the strike were retained in the respondent 's employment
doing labor work after Nardo was laid off on November 23.
No explanation was offered by the respondent for the retention of
these employees with less seniority than Nardo . Under these circum-
stances and in view of the respondent 's hostility toward, and efforts
to destroy , the Union , we find that the respondent discharged Nardo
on November 23 because of his membership and activity in the
Union.
From November 23 to the time of the hearing Nardo earned $45
at temporary employment.
Mike Infante was first employed by the respondent in 1932 as a
laborer in the clay yard . Infante joined the Union in June and was
active on the picket line during the strike . He was returned to the
respondent 's employment "two or three days after the strike," and
does not claim that he was discriminatorily refused employment after
the strike ended and prior to his reinstatement.
In December 1937 , while in the boiler room of the respondent's
plant, Infante was approached by Aubrey Sheehan, who said, "How
about joining the Independent Union?" Infante replied , "The hell
THE NILES FIRE BRICK COMPANY 929
with you and the Independent Union. I am not signing nothing.
Your father put me to work; I am going to work without signing
nothing. I am going to mind my own business." After this inci-
dent, Infante continued to work whenever the plant operated until
the last pay day before Christmas, when he was laid off. He was
given 1 day's work on January 10, but thereafter, although he went
to the plant every day for a period of 3 weeks, was prohibited from
going into the plant by the watchman, and did not receive employ-
ment. After he was refused admittance to the plant, Infante talked
to P. J. Sheehan, who told him that the work had to be "split up."
Thereafter Infante spoke to Stover, his foreman, on one occasion and
inquired concerning employment. Stover told him to "find yourself
another job."
The respondent contends that Infante was laid off because his job
was "hacking" bricks for the shape moulders, that arrangements had
been made whereby the moulders, and others on the "gang," hacked
their own bricks, thereby eliminating Infante's job. The evidence
supports the, respondent's contention that "hacking" bricks was taken
over by the other members of the crew. Ballard Kelly, the setter
on the crew on which Infante worked, did the "hacking" after Infante
was laid off. Infante claimed, however, that even though this job
had been abolished, he was not given the same treatment as his
"buddy," who also worked as a hacker, but remained in the respond-
ent's employ after Infante was dismissed. While Infante did not
disclose the name of his "buddy," the respondent's pay roll shows
that Infante and Joe Toney Ceroli were regularly employed as
hackers until January 1939. We find that Ceroli is the "buddy"
referred to by Infante. The 1 day's work given Infante in January
was as an off-bearer in the clay department. Ceroli, too, was given
work in this capacity in January, but unlike Infante, his employment
did not terminate at the end of a day's work, but continued through-
out January and February, and so far as the record shows, he was
still so employed at the time of the hearing. It is clear from the
record that both Ceroli and Infante were capable of doing the work
of off-bearer in the clay department. A comparison of the seniority
of the two employees shows that Infante was employed by the re-
spondent in 1932 and Ceroli in 1934. The respondent introduced no
evidence explaining why Ceroli was given employment in the capacity
of off-bearer, whereas Infante, whose length of service with the re-
spondent was almost double that of Ceroli, was dismissed, allegedly
because the respondent had no work for him. Thus it is clear that
the respondent did not afford Infante the preference in employment
to which he was entitled by reason of his seniority. In view of this
fact and the respondent's hostility to the Union and its domination
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and support of the Independent, it becomes apparent that Infante
was discharged because of his adherence to the Union and his refusal
to join the Independent at the request of Aubrey Sheehan. As set
forth above in Section III A, Aubrey Sheehan used Infante's dis-
charge to coerce employees into joining the Independent, stating to
a number of employees on one occasion, "You know what Mike In-
fante got for not having joined the union (Independent) and blow-
ing off about the union, -and keeping other men from joining." The
only conclusion permissible from all these facts is that after Infante
refused to join the Independent at Aubrey Sheehan's request, the
latter induced the respondent to dismiss Infante.
We find that the respondent discharged Mike Infante on January
10, 1938, because of his membership and activity in the Union.
From January 10, 1938, to the date of the hearing Inf ante had had
only W. P. A. employment.
Louis Pasha began his employment with the respondent in May 1933
as a brick setter. He joined the Union and was on the picket line
during the strike.
According to Pasha's testimony he applied for work on August 2,
and was told by Pallante, foreman, to work with a ,crew composed of
Marshall, Brandon, and Lee. He testified that these men did not com-
pose his regular "gang"; that he objected to Pallante against working
with Lee with whom he had had two . fights; and that Pallante told
him that if he did not want to work with that "gang," and "keep your
fight off the company ground," there was nothing that could be done.
Pasha further testified that he then went home, went to Pittsburgh 2
days later with a fellow employee, and did not return to Niles until
Saturday, August 14. On Monday, August 16, Pasha applied for
work at the respondent's plant, but was unable to obtain employment.
On August 23 Pasha spoke to Clingan at the gate to the plant and was
given employment doing labor work. After working 2 days on labor,
Pasha was given his old job as a brick setter. He, then continued to
work regularly in this capacity until January 10, 1938, when he was
dismissed, allegedly for setting the bricks improperly. At the time of
his dismissal Pasha was vice president of the Union.
Pallante's version of Pasha's refusal to accept employment on Au-
gust 2 was substantially the same as that of Pasha. He testified, how-
ever, that when Pasha refused to go to work he told Pasha that there
was no other work for him at the time, and that when other crews were
put to work Pasha would be sent for. Pasha admitted that when he
returned from Pittsburgh he learned that the respondent had sent a
messenger to his home in his absence to offer him employment, thus
supporting Pallante's testimony regarding his intention of giving
Pasha employment when other crews were put to work. In view of this
THE NILES FIRE BRICK COMPANY 931
circumstance, we do not think that Pallante's offer to give Pasha work
in a crew composed of employees personally obnoxious to Pasha was
done with any ulterior motive. Pasha did not testify that employment
in that crew would have penalized him in any way other than having
to work with persons with whom he was on unfriendly terms. We find
that the respondent did not refuse to reinstate Louis Pasha from Au-
gust 2 until August 23 because of his membership and activity in the
Union.
Pasha admitted on cross-examination that the reason given him
by the respondent for his dismissal on January 10, 1938, was that the
bricks set by him in No. 9 kiln fell down when they were fired. He
testified, however, that when these bricks were being set on November
27 he complained to Sheehan and Stover that bricks which were being
set on the bottom of the kiln did not belong there, and was told by
them to continue to set the bricks. Stover testified that on several
occasions he had "to give Louis hell about the kind of setting he had
been doing,?' and in January when No. 9 kiln was being emptied
Sheehan called his attention to the fact that the kiln was falling
down. Stover further testified that the records were checked and
it was discovered that Pasha had set the bricks which had fallen.
Both Stover and Sheehan testified that the bricks fell because they
were set without "stickers" and that the respondent's rule required
that all bricks be set with "stickers" so that they would not fall.
Stover testified that Pasha was held at the gate by the watchman
the day following the discovery of the fallen bricks; that he contacted
Pasha there and requested him to go into the plant and examine the
kiln which had fallen but that Pasha refused to do so; and that he
then informed Pasha to go "get his time." In connection with Pasha's
testimony that he had warned Sheehan that improper bricks were
being set on the bottom in No. 9 kiln, Sheehan testified that Pasha's
warning had reference to No. 8 kiln which had not been improperly
set and had not fallen. Pasha did not deny that he had rejected the
request of Stover to inspect the kiln which had fallen; nor did he
deny that he had, failed to set the bricks with "stickers" in the kiln
which had fallen.
In view of the uncontradicted testimony introduced by the re-
spondent to the effect that proper brick setting required the use of
"stickers," that the bricks which fell in No. 9 kiln were set by Pasha,
and that "stickers" had not been used in setting the bricks, we find
that Louis Pasha was not discharged on January 10 because of his
membership and activity in the Union.
Albert Lazzari was first employed by the respondent in 1928 and
worked as an off-bearer in the clay yard at the time of the strike. He
was treasurer of the Union and was on the grievance committee
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which met with the respondent's management prior to the strike.
Lazzari was reinstated on September 2, after he had applied to
Sheehan for work on September 1 at the suggestion of "a man from
the Labor Board." He testified that since September 2 he had re-
ceived regular work whenever the plant was in operation and that he
was still employed at the time of the hearing.
The respondent contends that Lazzari was not given work from
August 2 until September 2 because he did not apply for work until
September 1. In this connection, Sheehan testified that Lazzari
first came to him seeking employment the day before he was given
work on September 2. At that-time, Sheehan testified, he questioned
Lazzari regarding his whereabouts since the strike, and was informed
by Lazzari that he had been assisting his father-in-law in construct-
ing improvements to property, that he understood that Mike Infante
had his job, and he "didn't want to bump Mike Infante" because In-
fante "had a larger family." While Lazzari denied that he had
made any statement to Sheehan about assisting anyone making "im-
provements," he admitted making the statement about his reluctance
to "bump" Infante. It does not appear that Lazzari was refused re-
employment at the time of the Reichart conference on August 18 or
that his case was considered at this conference. Under these circum-
stances it is reasonable to infer that Lazzari had not applied for
reemployment up to that time because, as pointed out above, only four
union members who had not been reemployed prior to the conference
were refused employment at the Reichart conference. Lazzari was
not one of those four union members. We find that Lazzari applied
for reinstatement for the first time on September 1. We find that
the respondent did not refuse to reinstate Lazzari from August 2
until September 2 because of his union membership and activity.
Joe Zoppetti began his employment with the respondent in the
spring of 1934 and was working as an off-bearer in the silica press
at the time of the strike. He was a member of the Union and active
on the picket line. Zoppetti was not reemployed at the end of the
strike and had not been given employment up to the time of the
hearing. The respondent contends that Zoppetti voluntarily quit
during the strike.
Zoppetti was the press representative of the Union and his name
was published in the newspaper in this connection before the strike.
He testified that a few days before the strike ended Murphy, foreman,
came to his home and stated that he had seen Zoppetti's name in the
newspaper as an officer of the Union and that the respondent desired
him to tear down a sign adverting to the strike at the respondent's
plant. The sign was located on a public thoroughfare in front of
the plant. Zoppetti testified that he told Murphy that he had not put
THE NILES FIRE BRIOK COMPANY 933
the sign up and, "wasn't going to tear it off," and that Murphy then
remarked that he "would be sorry, that was an order."
At the end of the strike, Zoppetti testified, he applied to Sheehan
for work but Sheehan refused to give him a "slip," that he was there-
after refused admittance to the plant by the watchman, and that he
spoke to Pallante, foreman, who told him that he did not "have a
job there." Later, according to Zoppetti, he spoke to. Murphy, fore-
man, at the gate to the plant and requested an advance of $5.00 "on
the money that was coming to me." Zoppetti testified that Murphy
did not answer him even after he had repeated his request, where-
upon he became angry and told Murphy that. "seeing you won't ad-
vance me a little money, why, then, I will quit; maybe you will pay
me off." Zoppetti further testified that he then went to the re-
spondent's office, saw "one of the girls" there, and informed her that
he was quitting and desired his money; and that he was told that
the paymaster, Gilbert, was in the hospital, and that for this reason
would have to wait until pay day.
Murphy admitted that he requested Zoppetti to remove the sign,
but testified that the incident occurred about 3 days after the strike
had ended, and denied that he made any threat when his request
was refused. Murphy's testimony concerning Zoppetti's request for
an advance was substantially the same as Zoppetti's except that
Murphy claimed that the incident occurred during the strike and
that he explained to Zoppetti that his request could not be granted
because "the officials were away." The respondent's pay roll contains
a notation that Zoppetti was "Paid off" the first day of the strike,
thus supporting Murphy's testimony that the incident occurred dur-
ing the strike. Moreover, there is no evidence in the record that
Zoppetti's case was considered at the time of the Reichart conference.
It is reasonable to assume that if Zoppetti had been discriminatorily
refused reinstatement at the end of the strike some disposition would
have been made of his case at that time. We find, therefore, that
the advance incident occurred before the strike ended. It necessarily
follows that Zoppetti was not refused employment at the end of the
strike because of his union membership and activity, but that he
voluntarily quit prior to that time, and we so find.
Sam Vaccaro began his employment with the respondent in 1933
and was working as a setter wheeler at the time of the strike. He
was a member of the Union, served on the picket line during the
strike, and returned to the respondent's employment on August 2
in his old position.
As set forth above in Section III A, in December 1937, Vaccaro
was requested by Foreman Gagany to join the Independent and
refused to do so. Vaccaro testified that he received no employment
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after he refused Gagany 's request . Although Vaccaro did not fix
the date of his conversation with Gagany, or of the termination of
his employment , the respondent 's pay roll shows that December 10,
1937, was the last day on which he worked.
On cross-examination Vaccaro admitted that he spoke to Foreman
Stover in December about not receiving as much work as other
employees , that he asked Stover concerning his prospects of receiv-
ing regular employment , and that Stover informed him that there
would be no work for him at that time and brought up the subject
of W. P . A. employment . After some discussion , according to
Vaccaro, he decided to seek W. P. A. employment . Thereafter he
obtained W. P. A. work and was so employed at the time of the
hearing. During the course of his testimony Vaccaro stated that
the setting "gang" worked 1 week in the latter part of December,
3 weeks in January, a week in February , and that he received no
employment during this entire period.
Stover admitted talking with Vaccaro in December concerning
W. P. A. employment . His version of the incident was that there
were six men working on the setting "gang" in December , that there
was not enough work for all of them , and that Vaccaro told him
that he had an opportunity to obtain W. P. A. employment and asked
what he, Stover , "thought of it." Stover testified that he told
Vaccaro that Vaccaro "knew how the work was at the plant," that
if he could get employment earning $50 or $60 a month "to go ahead
and take it," and that when operations improved he would be given
employment . Stover further testified that he had not seen Vaccaro
from the time of this conversation until the hearing.
A comparison of Vaccaro 's earnings in December with that of
other employees working in the same capacity does not indicate that
any of them received much more employment than Vaccaro. The
respondent 's plant shut down on or about December 13 and opera-
tions were not resumed until December 28. Consequently , there was
no discrimination against Vaccaro during this period . Vaccaro
earned $39 . 12 between December 1 and 10, whereas most of the em-
ployees engaged in the same capacity during December averaged
between $41 and $42 for the entire month. We assume that these
employees received some employment after the plant resumed opera-
tions on December 28, which would account for their earnings being
somewhat higher than Vaccaro's since he did not work after Decem-
ber 10. We find that Vaccaro received a fair share of the available
employment until the plant was shut down. Moreover , since neither
Stover nor Vaccaro fixed the date of the conversation which led to
Vaccaro's obtaining W. P. A. employment , we are unable to deter-
mine whether Vaccaro's failure to receive employment after the
THE N [LES FIRE BRIOK COMPANY 935
plant resumed operations on December 28 was due to the respondent's
failure to give him employment , or to Vaccaro having obtained
W. P. A. employment prior to that time.
We find that the record does not support the allegation of the
complaint that Sam Vaccaro was discharged and refused reinstate-
ment by the respondent because of his union membership and
activity.
Anthony Liberatore , father of Tom Liberatore , had been employed
by the respondent since 1919 as monorail ( crane ) operator. He was
dismissed on October 29, 1937. Liberatore was a member of the
Union and engaged in picketing during the strike. On August 2
he was reinstated to his old employment operating the monorail.
The respondent contends that Liberatore was dismissed on Octo-
ber 29 because the monorail had broken down and was abandoned
on that date . All the witnesses who testified on the subject , includ-
ing Anthony Liberatore , testified that the monorail did not operate
after October 29. The respondent 's pay roll shows that Liberatore
and Griffin, the only two employees engaged in operating the mono-
rail, were both laid off on October 29 . Griffin also had many years
of service with the respondent . No evidence was introduced as to
whether Griffin was a member of the Union or had engaged in any
union activity. Under these circumstances we find that the record
does not support the allegations of the complaint that Liberatore
was discharged on October 29 because of his union membership and
activity.
Lawrence Preziuso was employed by the respondent in March 1934
and worked as a laborer on the grinder at the time of the strike. He
joined the Union and was active on the picket line. Preziuso did
not obtain employment on August 2, but was reinstated on August 18
as-a result of the Reichart conference . He was still employed by the
respondent at the time of the hearing.
Preziuso testified that he applied to P. J . Sheehan for work on the
Friday before the strike was ended by the Union, and that Sheehan
informed him that there were no gravel cars. Preziuso also testi-
fied that he applied for work the following Monday, but that Carmen
Villio was put to work in his place . Preziuso claimed discrimination
because Villio was given work to which he was entitled . The re-
spondent contends that after the strike ended Preziuso did not apply
for work until after his place had been filled by another employee.
Like Preziuso , Carmen Villio was a member of the Union and is
named in the complaint as one of the persons discriminated against.
Villio and Preziuso both worked as laborers before the strike, and
Villio had greater seniority than Preziuso.
283029-41--vol. 18-60
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Villio was as active in the Union as Preziuso. Under these cir-
cumstances no discrimination appears from the giving of employment
to Villio in preference to Preziuso. We find that the record does
not support the allegation of the complaint that the respondent dis-
criminated against Preziuso because of his membership and activity
in the Union.
Carmen Villio, Hubert Ashburn, and Lawrence Infante. We find
that the record does not support the allegations of the complaint in
respect to these three men and concur in the Trial Examiner's recom-
mendation that the complaint be dismissed as to them. Since the
Union did not file exceptions to the Intermediate Report, we will
not discuss the alleged discrimination as to these three men in detail.
We find that the respondent has discriminated in regard to the
hire and tenure and terms and conditions of employment of Paul
Yarwood, John Bacos, Nick Nacco, Harry Evans, Alex Miller, Joe
Villio, Alex Sabo, Heman Estes, John Toth, Alfred Whitt, Thomas
Liberatore, Wendell Mathews, Anthony Villio, Anthony (Tony)
Nardo, and Mike Infante, and has thereby discouraged membership
in the Union and interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed them in Section 7
of the Act.
We find that the respondent has discriminated in regard to the
hire and tenure and terms and conditions of employment of Paul
Yarwood because he had given testimony under the National Labor
Relations Act.
We find that the respondent has not discriminated in regard to
the hire and tenure or terms and conditions of employment of Louis
Pasha, Albert Lazzari, Joe Zoppetti, Sam Vaccaro, Anthony Libera-
tore, Lawrence Preziuso, Carmen Villio, Robert Ashburn, and Law-
rence Infante, and has not thereby discouraged membership in the
Union or encouraged membership in the Independent.
We find that the respondent has not discriminated in regard to
the hire and tenure or terms and conditions of employment of Thomas
Liberatore because he gave testimony under the Act.
D. The alleged refusal to bargain with the Union
1. The appropriate unit
The complaint alleges that all the respondent's production and
maintenance employees, excluding supervisory and clerical em-
ployees, mill police, watchmen, and timekeepers constitute a unit ap .
propriate for the purposes of collective bargaining. In its answer
the respondent denied that the unit alleged in the complaint is ap-
propriate, but introduced no evidence at either of the hearings to
THE NILES FIRE BRICK COMPANY 937
show that such unit was not appropriate . The employees composing
the unit alleged to be appropriate are eligible for membership in the
Union. The unit is a normal industrial bargaining unit.
We find that all the respondent 's production and maintenance em-
ployees, excluding supervisory and clerical employees, mill police,
watchmen, and timekeepers , constituted a unit appropriate for the
purpose of collective bargaining and that said unit insures to the
employees of the respondent the full benefit of their right to self-
organization and to collective bargaining and otherwise effectuates
the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
The respondent 's pay roll shows that the respondent employed
approximately 204 employees in the appropriate unit during the
period from July 1. to July 15, 1937. At the hearing in Case No.
R-362 Thomas Liberatore testified that 165 of these employees signed
membership cards in the Union prior to the beginning of the strike
on July 19. The Union did not introduce the membership cards in
evidence, but stated that it was willing to submit them to the Trial
Examiner for comparison with the pay roll and any authentic signa-
ture records the respondent might possess . The Trial Examiner re-
fused to receive the cards without according the respondent an op-
portunity to inspect them. No further proof of membership in the
Union was offered at the hearing in the consolidated case. At the
hearing the respondent contended that the Union did not represent
a majority of the respondent 's employees . While the unfair labor
practices of the respondent set forth above afford ample justification
for the Union 's precaution in not disclosing the names of its mem-
bers, we are nevertheless unable to find that the Union represented a
majority of the employees in the appropriate unit. It is solely for
this reason that we do not find that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (5) of the Act.
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 respondent
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
Having found that the respondent has engaged in unfair labor
practices , we shall order it to cease and desist therefrom . In order
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to'effectuate the purposes and 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 has dominated and interfered
with the formation and administration of Brick Workers' Inde-
pendent Organization and has contributed support to it. Its con-
tinued existence is a consequence of violation of the Act thwarting
the purposes of the Act and rendering ineffective a mere order to
cease and desist the unfair labor practices.27 In order to effectuate
the policies of the Act and free the employees of the respondent from
such domination and interference and the effects thereof, which con-
stitute a continuing obstacle to the exercise by the employees of the
rights guaranteed them by the Act, we shall order the respondent to
withdraw and refrain from any recognition of the Independent as
representative of any of the respondent's employees for the purpose of
dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, and conditions of. work,
and to disestablish it as such representative.28
We have found that the employees listed in Appendix A, Appendix
B, and Appendix C went on strike on July 19, 1937, because of the
respondent's unfair labor practices and that the respondent discrimi-
nated against them in regard to their hire and tenure and terms and
conditions of employment. We shall order the respondent to offer
to the employees listed in Appendix A reinstatement to the positions
occupied by them at the commencement of the strike on July 19,
1937, or to substantially equivalent positions. Such reinstatement
shall be effected in the following manner : All persons hired after
July 19, 1937, shall, if necessary to provide employment for those
to be offered reinstatement, be dismissed. If, thereupon, by reason
of a reduction in force, there is not sufficient employment immedi-
ately available for the remaining employees, including those to be
offered reinstatement, all available positions shall be distributed
among such remaining employees in accordance with the respond-
ent's usual method of reducing its force, without discrimination
against any employee because of his union affiliation or activities
following a system of seniority to such extent as was applied in the
conduct of the respondent's business prior to July 19, 1937. Those
employees remaining after such distribution, for whom no employ-
ment is immediately available, shall be placed upon a preferential list
27 Consolidated Edison Company v. National Labor Relations Board, 305 U. S. 197.
28 National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., et al., 303
U. S. 261 ; National Labor Relations Board v. Pacific Greyhound Lines, Inc., 303 U. S. 372;
National Labor Relations Board v. Fansteel Metallurgical Corporation, 306 U. S. 240.
THE NILES FIRE BRICK COMPANY 939
prepared in accordance with the principles set forth in the previous
sentence, and shall thereafter, in accordance with such list, be offered
employment in their former or in substantially equivalent positions,
as such employment becomes available and before other persons are
hired for such work.
We shall order the respondent to make the employees listed in
Appendix A whole for any loss of pay they may have suffered by
reason of the respondent's discriminatory refusal to give them em-
ployment during the period listed opposite their respective names in
said Appendix, and/or by reason of their subsequent discriminatory
discharges on the dates listed opposite their respective names in
said Appendix, by payment to each of them of a sum of money
equal to the amount which he normally would have earned as wages
during the period in which the respondent refused to give him em-
ployment and/or during the period from the date of his discharge
to the date of the respondent's offer of reinstatement or placement
upon the preferential list, less his net earnings,23 if any during said
periods. We shall also order the respondent to make the employees
listed in Appendix B whole for any loss of pay they may have suf-
fered by reason of the respondent's refusal to give them employment
during the periods listed opposite their respective names in said
Appendix, by payment to each of them of a sum of money equal to
the amount which he normally would have earned as wages, less his
net earnings, if any, during said period. We shall also order the
respondent to make the employees listed in Appendix C whole for
any loss of pay they may have suffered by reason of the respondent's
discriminating against them during the periods listed opposite their
respective names in said Appendix by payment to each of them a
sum of money equal to the amount which he would have earned as
wages during said period had the respondent given him the kind
and/or amount of work to which he was entitled, less the wages he
received from the respondent during said period.
We have found that the respondent did not discriminate against
the employees listed in Appendix D in regard to hire and tenure and
terms and conditions of employment. We shall, therefore, dismiss
w By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the respondent , which would not have been incurred but for his
unlawful termination of employment and the consequent necessity of his seeking employ-
ment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of
Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590,
8 N. L. R. B . 440. Monies received for work performed upon Federal , State, county,
municipal, or other work -relief projects are not considered as earnings, but, as pro-
vided 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 . Republic Steel Corporation, et al. v. National Labor Relations
Board, et al., 107 F . ( 2d) 472 (C. C. A. 3).
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint with respect to them. We shall also dismiss the com-
plaint in so far as it alleges that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (5) of the
Act.
VI. THE UNION'S PETITION FOR AN INVESTIGATION AND CERTIFICATION OF
REPRESENTATIVES
In view of the long lapse of time since the hearing, we shall dis-
miss without prejudice the petition of the Union for an investigation
and certification of representatives.
Upon the basis of the above findings of fact and upon the entire
record in the consolidated cases, the Board makes the following :
CONCLUSIONS OF LAW
1. United Brick Workers' L. I. U. No. 198 and Brick Workers'
Independent Organization are labor organizations within the mean-
ing of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and ad-
ministration of, and by contributing support to Brick Workers' Inde-
pendent Organization, 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 against the employees listed in Appendix A,
Appendix B, and Appendix C in regard to their hire and tenure
and terms and conditions of employment, thereby discouraging mem-
bership in a labor organization, the respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8
(3) of the Act.
4. By discriminating in regard to the hire and tenure and terms
and conditions of employment of Paul Yarwood because he had given
testimony under the National Labor Relations Act, the respondent
has engaged in and is 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 engaged in unfair labor practices with-
in the meaning of the Act by discharging or laying off or refusing to
reinstate the employees listed in Appendix D.
THE NILES FIRE BRICK COMPANY 941
8. The respondent has not engaged in unfair labor practices with-
in the meaning of Section 8 (4) of the Act in connection with the
termination of the employment of Thomas Liberatore on October 29,
1937.
9. The respondent has not engaged in unfair labor practices with-
in the meaning of Section 8 (5) of the Act.
10. All the production and maintenance employees of the respond-
ent, excluding supervisory and clerical employees, mill police, watch-
men, and timekeepers, constituted a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the
Act.
ORDER
Upon £he basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, The Niles Fire Brick Company, and its officers,
agents, successors, and assigns shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of Brick Workers' Independent Organization, or dominating
or interfering with the formation or administration of any other
labor organization of its employees, and contributing any support
to Brick Workers' Independent Organization, or to any other labor
organization of its employees ;
(b) Discouraging membership in United Brick Workers' L. I. U.
No. 198, or in any other labor organization of its employees, by dis-
charging, laying off, or refusing employment to any of its employees,
or in any other manner discriminating in regard to the hire and
tenure of their employment, or any terms or conditions of their em-
ployment;
(c) Discharging, laying off, refusing to reinstate, or otherwise dis-
criminating against any employee because he has given testimony
under the Act;
(d) In any other 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 con-
certed activities, for the purpose of collective bargaining or other
mutual aid and protection, 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 and refrain from recognizing
Brick Workers' Independent Organization as the representative of
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any of the employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment or conditions of work, and completely disestablish Brick
Workers' Independent Organization as such representative;
(b) Offer to the employees listed in Appendix A immediate and
full reinstatement to the positions occupied by them at the com-
mencement of the strike on July 19, 1937, or to substantially equiva-
lent positions, without prejudice to their seniority and other rights
and privileges, in the manner set forth in the section entitled "The
Remedy" above, placing those employees for whom employment is
not immediately available upon a preferential list in the manner set
forth in said section, and thereafter, in said manner, offer them em-
ployment as it becomes available;
(c) Make whole the employees listed in Appendix A for any loss
of pay they may have suffered by reason of the respondent's dis-
criminatory refusal to give them employment during the periods
listed opposite their respective names in said Appendix, and/or by
reason of their discriminatory discharges on the dates listed oppo-
site their respective names in said Appendix, by payment to each
of them respectively of a sum of money equal to that which he nor-
mally would have earned as wages during the period in which the
respondent refused to give him employment and/or during the period
from the date of his discharge to the date of the respondent's offer
of reinstatement or placement upon the preferential list, less his net
earnings,3° if any, during said periods; provided that the respondent
shall deduct from the back pay due each of said employees a sum
equal to that received by him for work done upon Federal, State,
county, municipal, or other work-relief project during the period
from which back pay is due him under this Order, and shall pay any
such amount deducted to the appropriate fiscal agency of the Fed-'
eral, State, county, municipal, or other government financing such
work-relief project;
(d) Make whole the employees listed in Appendix B for any loss
of pay they may have suffered by reason of the respondent's refusal
to give them employment during the periods listed opposite their
respective names in said Appendix, by payment to each of them of a
sum of money equal to that which he normally 'would have earned as
wages, less his net earnings '30 if any, during said period; provided
that the respondent shall deduct from the back pay due each of said
employees a sum equal to that received by him for work done upon
Federal, State, county, municipal or other work-relief project during
the period from which back pay is due him under this Order, and
80 See footnote 29, supra.
THE NILES FIRE BRICK COMPANY 943
shall pay any such amount deducted to the appropriate fiscal agency
of the Federal, State, county , municipal , or other government financ
ing such work-relief project;
(e) Make whole the employees listed in Appendix C for any loss
of pay they may have suffered by reason of the respondent's dis-
crimination against them during the periods listed opposite their
respective names in said Appendix , by payment to each of them of a
sum of money equal to that which he would have earned as wages
during said period, had the respondent given him the kind and/or
amount of work to which he was entitled , less the wages he received
from the respondent during said period;
(f) Post immediately in conspicuous places in each department of
the respondent 's plant , and keep posted for a period of at least sixty
(60) consecutive days from the date of posting , notices stating that the
respondent will cease and desist in the manner set forth in 1 (a), (b),
(c), and ( d) and that it will take the affirmative action set forth in
2 (a), (b), (c ), (d), and ( e) of this Order, and that the respondent's
employees are free to become or remain members of United Brick
Workers' L. I. U. No. 198, and that the respondent will not discriminate
against any employee because of membership or activity in that
organization;
(g) Notify the Regional Director for the Eighth Region in writing,
within ten ( 10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed in so far as it alleges that the respondent has engaged in
unfair labor practices within the meaning of Section 8 ( 5) of the Act,
has engaged in unfair labor practices within the meaning of Section
8 (3) of the Act with respect to the persons listed in Appendix D,
and has engaged in unfair labor practices within the meaning of
Section 8 (4) of the Act with respect to Thomas Liberatore.
AND IT IS FURTHER ORDERED that the petition of the Union for an
investigation and certification of representatives be, and it hereby is.
dismissed without prejudice.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
Period during which discriminatorily refused em-
ployment after ending of strike on August 2, 1937 Date of discharge
Paul Yarwood --------------- August 2, 1937-August 18 , 1937 -------------------- December 3,'1937.
John Bacos----------------- August 2, 1937-August 18 , 1937 -------------------- November 12, 1937.
Nick Nacco ----------------- August 2, 1937-August 18 , 1937 -------------------- December 3, 1937.
Harry Evans---------------- August 2, 1937-August 18, 1937 -------------------- January 2, 1938.
Alex Miller------------------ August 2 , 1937-August 19, 1937---- ---------------- October 29, 1937.
Joe Villio------------------- August 2, 1937-August 18 , 1937-------------------- December 7 1937.
Heman Estes----------------
Mik I f t
August 2, 1937-September 1, 1937------------------
,
December 28, 1937.
e n an e---------------- --------------------------------- --------------- January 10, 1938.Anthony (Tony) Nardo----- ---------------------------------------------------- November 23, 1937.
APPENDIX B -
Anthony Villio --------------
John Toth -------------------
Alfred Whitt ----------------
Wendell Mathews -----------
Thomas Liberatore ----------
Alex Sabo- ------------------
August 2, 1937-August 18, 1937.
August 2, 1937-September 1, 1937.
August 2, 1937-August 18, 1937.
August 2, 1937-August 19, 1937.
August 7, 1937-August 18, 1937.
August 14 , 1937-August 21, 1937.
APPENDIX C
Period of discrimination in kind and/or
amount of work
Paul Yarwood------------------------- November 13, 1937-December 3, 1937.
Harry Evans-------------------------- September 1, 1937-December 3, 1938.
Joe Villio------------------------------ August 18, 1937-December 7, 1938.
APPENDIX D
Louis Pasha Lawrence Preziuso
Albert Lazzari Carmen Villio
Joe Zoppetti Hubert Ashburn
Sam Vacca.ro Lawrence Infante
Anthony Liberatore
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.