The Niles Fire Brick Co.

National Labor Relations Board - Board Decisions

Mar 17, 1941

30 N.L.R.B. 426 (N.L.R.B. 1941)

In the Matter of THE NILES FIRE BRICK COMPANY and UNITED BRICK
WORKERS L. I. U. No. 198, AFFILIATED WITH THE CONGRESS OF IN-
DUSTRIAL ORGANIZATIONS
Case No. C-1713.-Decided March 17, 1941
Jurisdiction : fire brick manufacturing industry.
Unfair Labor Practices
Discrimination: discharges for engaging in concerted activities
The refusal of employees to take a job which they knew would result
in the removal of a leader of employee activities cannot be deemed an
act of insubordination to justify their discharge for their refusal, together
with other employees, so to do, while not a total strike, is analogous
conduct in the nature of a partial strike and is equally permissible under
the Act as concerted activities for the purpose of mutual aid and protection.
Remedial Orders : reinstatement and back pay
Employee who was not ordered reinstated because of his protracted ill-
ness and his inability to work for a period of many months immediately
prior to the hearing, awarded back pay from the date of the discrimination
against him to the date on which he became physically incapacitated
from working because of his illness.
Mr. Max W. Johnstone, for the Board.
Mr. Paul Z. Hodge and Mr. George W. Secrest, of Warren, Ohio,
for the respondent.
Mr. Bliss Daffan, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Brick
Workers L. I. U. No. 198, affiliated with the Congress of Industrial
Organizations, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the
Eighth Region (Cleveland, Ohio), issued its complaint, dated Sep-
tember 11, 1940, against The Niles Fire Brick Company, Niles, Ohio,
herein called the respondent, alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
30 N. L. R. B., No. 61.
426
THE NILES FIRE BRICK COMPANY 427
herein called the Act. Copies of the complaint and accompanying
notice of hearing were duly served upon the respondent and the
Union.
In respect to the unfair labor practices, the complaint alleged, in
substance, that -t'he,respondent- discriminated with respect to the hire
and tenure and terms and conditions of employment of Harold Estes,
and Heman Estes on or about May 15, 1939, and of Charles Welch on
or about May 16, 1939, because they joined and assisted the Union
and/or engaged in concerted activities with other employees of the
respondent for the purposes of collective bargaining and other mutual
aid and protection, and that the respondent thereby discouraged mem-
bership in the Union, and interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
On September 20, 1940, the respondent filed its answer, in which it
denied that it had engaged or was engaging in the unfair labor prac-
tices alleged in the complaint.
Pursuant to. notice, a hearing was held in Niles, Ohio, on September
23 and 24, 1940, before W. P. Webb, the Trial Examiner duly desig-
nated by the Board. The Board and the respondent were represented
by counsel and participated in the hearing., Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing upon the issues was afforded all parties. At the con -
elusion of the Board's case and at the conclusion of the hearing the
Trial Examiner reserved ruling on a motion by the respondent to
dismiss the complaint for lack of jurisdiction and for lack of evidence
to sustain the charges that the discharges of the three individuals
named- in the, complaint were for. their- union activity.' At the con-
clusion of the hearing the Trial Examiner granted a motion by the
Board's attorney to conform the complaint to the proof adduced at
the hearing. During the course of the hearing the Trial Examiner
made numerous other rulings on motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
On October 23, 1940, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent and
the Union. He found that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the
Act, and recommended that the respondent cease and desist there-
from and take certain affirmative action to effectuate the policies of
' Subsequently, in his intermediate Report, the Trial Examiner denied the, respondent's
motion.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act. Thereafter the respondent filed exceptions to the Inter-
mediate Report and also filed a brief with the Board.
On December 5, 1940, pursuant to request therefor by the respondent
and notice thereof to all parties, a hearing was held before the Board
in Washington, D. C., for the purpose of oral argument. Counsel for
the respondent appeared and participated therein.
The Board has considered the exceptions filed by the respondent and
the brief in support thereof and, save -as the exceptions are consistent
with the findings of fact, conclusions of law, and order set forth below,
finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, the Niles Fire Brick Company, is an Ohio cor-
poration engaged in the manufacture and distribution of refractories;
commonly known as "fire brick". Its office and plant are located
at Niles, Ohio. Raw materials used by the respondent in its manufac-
turing operations, consisting of coal, flint fire clay, plaster clay, silica
gravel, and lime, are purchased by the respondent at an annual cost
of $137,500. Approximately 44 per cent of this amount is spent for
coal purchased from an Ohio company but shipped by said company
from its mines in Pennsylvania directly to the respondent's plant;
29 per cent is spent for raw materials other than coal, obtained within
the State of Ohio; and 27 per cent is spent for raw materials obtained
from without the State of Ohio. In addition to the raw materials
purchased by the respondent, a portion of the clay used by it in its
manufacturing operations is obtained by the respondent from mines,
which it leases and operates, located in the State of Pennsylvania.
The respondent annually sells refractories, of a value of approxi-
mately $515,000, of which 10 per cent is sold and transported out-
side the State of Ohio. The respondent has a sales representative
located at Pittsburgh, Pennsylvania, who takes orders for its finished
products. Among the chief customers of the respondent are the Car-
negie-Illinois Steel Company, The Republic Steel Corporation, and
Youngstown Sheet & Tube Company.
II. THE ORGANIZATION INVOLVED
United Brick Workers L. I. U. No. 198, affiliated with the Congress
of Industrial Organizations, is a labor organization admitting to
membership employees of the respondent.
THE NILES FIRE BRICK COMPANY 429
III. THE UNFAIR LABOR PRACTICES
As stated above, the complaint alleged, in substance, that the
respondent -discriminated with respect to the hire and tenure and
terms and conditions of employment of Heman and Harold Estes
and Charles Welch, because they joined the Union and/or engaged
in concerted activities with other employees for the purposes of col-
lective bargaining and other mutual aid and protection.
Harold Estes was hired by the- respondent in 1932 and, after per-
forming various jobs in the plant, he became a press operator, a posi-
tion which he held for a period of 5 years prior to the termination
of his employment on May 13, 1939. He joined the Union in Febru-
ary 1939, thereafter served as doorman at union meetings, and was
on a committee of the Union which conferred with the respondent
about 2 weeks prior to the termination of his employment. Heman
Estes, brother of Harold, began his employment with the respondent
in July 1935, became a press operator after about a year, and con-
tinued in that capacity until the termination of his employment. He
joined the Union in July 1937, participated in a strike called by the
Union shortly thereafter, and was elected financial secretary of the
Union, in February 1938 and was still serving in this capacity at the
time of the hearing. Charles TPelch was hired by the respondent in
1936 and became a press operator in 1938. He joined the Union in
March 1939.
Prior to May 1939 the respondent's silica department had been
operating on 3 consecutive days of each week. On Monday, May
8. 1939, the respondent, decided that the department would be oper-
ated on alternate rather than consecutive days and so notified the
employees prior to their beginning work for the day. The change
did not meet with the approval of the employees, who therefore
refused to begin work. Thereupon, John Stover, the respondent's
foreman in charge of the department, approached Heman Estes and
requested him to persuade the employees to go to work, stating that
the matter could be "fixed up later on ." Heman Estes declined -
Stover's request and told Stover to "speak to somebody else about
it." Stover then conferred with Harold Estes, who in the meantime
had been appointed their spokesman by the employees, and' it was
agreed that the employees would return to work with Stover' s assur-
ance than John Clingan, the respondent's vice president, "would be
down after awhile" to adjust the difficulty. The employees worked
until noon, but when Clingan did not appear, refused to return to
work at the conclusion of the lunch period. When the employees
persisted in their refusal, Stover, accompanied by Harold and Heman
Estes and Alfred Whitt, another employee, went to the office and
telephoned Clingan. At the conclusion of his conversation with
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clingan, Stover announced to the employees that Clingan had agreed
that they should continue to work on consecutive days. After re-
ceiving this assurance, the employees returned to their work and
there was no recurrence of the difficulty.
During the week beginning on May 8, 1939, four brick presses were-
in operation in the respondent's silica department, two of which
were producing "9-inch straight" brick and two producing "shapes." 2
The department was in operation on Monday, Tuesday, and Wednes-
day, with Harold Estes, Heman Estes, Ollie Stegal, and Dave Miles
operating the presses, and was then shut down. On Friday, May 12,
1939, while the department was not in operation, Stover changed
the press which Harold Estes had been operating so that it would
make straight brick rather than shapes and notified the silica depart-
ment employees to report for work the next morning. In addition
to the employees working regularly in the silica department Stover
specifically notified Welch, who for three months had been assisting
the chief mechanic at night and had not been working as a press
operator, to report for work. Pursuant to notification 16 employees,
consisting of the 4 press operators above named, 11 helpers, and
Welch, reported for work on May 13, 1939. Since 16 employees
reported for work and only 15 employees were needed to operate
the three presses scheduled for operation there was one employee
for whom there was no work. Under ordinary circumstances, this
situation would have been met by allotting three of the four regular
press operators to the three presses to be operated that day, assign-
ing the fourth operator to work as a helper on one of the three
operating presses, and sending home the helper thus displaced. On
the morning of May 13, however, the usual custom was not regarded.
The testimony of the witnesses for the Board and the respondent
is conflicting with respect to the events of that morning. Consider-
ing such evidence as a whole, however, and in the light of the findings
of the Trial Examiner, we find that substantially the following
occurred.
About 10 minutes before the start of the day's work on the morning
in question, Stover instructed Welch to operate the press which had
been changed on the preceding day to make straight brick instead of
shapes. Welch walked over to the press, started its motor, and dis-
covered that it was the press customarily operated by Harold Estes
and that the latter's "gang" were standing there ready to begin
work.3 Harold Estes heard Stover assign Welch to operate the press
with Estes' "gang" and protested to Stover, stating that it was a
2 The "9-inch straight" brick is ordinary rectangular brick, while a "shape" Is any
other type of brick, usually of larger dimensions and often not rectangular in shape.-
s The brick presses are operated by a pressman and a "gang" of helpers consisting of
3 or 4 "oft-bearers." Pressmen and off-bearers are paid at the same rate of wages.
THE NILES FIRE BRICK COMPANY 431
"dirty trick" and that he wanted to see Clingan. Stover advised
.Estes that he was "making too much noise",and would "have to get
-out." When Estes replied, "You can't put me out," Stover stated
that he would get someone to put him out and walked over to the
-telephone.. Welch heard the controversy between Harold Estes and
Stover, failed to start the press, and was ordered by Stover to begin
its operation. Welch advised Stover that, "This is Harold's gang,
and I would rather not take his gang." Stover again ordered Welch
to start the press but Welch again refused, stating, "I would rather
not do it because he is an older man with the company than I am."
Stover replied, "If you don't do that, that is all I have got for you.
If you can't do that you can go home."
Upon Welch's refusal, Stover requested Alfred Whitt, who at one
time had been a press operator but for several months had been
working as an off-bearer, to operate the press. Whitt likewise re-
fused the assignment and Stover made the same request of James
Nuzzi and John Long, two off-bearers, and also met with a like re-
fusal on their part. Stover next approached Heman Estes and in-
structed him to operate the press. Heman Estes also refused, saying
that "it wouldn't look right for me to do it. I am an officer of the
union and a good union member. I do not think that would be right.
That man is my brother, and I cannot take his job." When Stover
replied, "All right, if you don't take it, you are through," Heman
Estes stated, "All right, if that is the way you feel about it, I am
through." The Estes brothers then left the department. Stover
again requested Whitt to operate the press, assuring Whitt that if
he would run the press "these fellows [Welch and Heman and Harold
Estes] will be back to work Monday." Upon receiving this assur-
ance Whitt began operation of the press. .
After leaving the silica department, while standing in the plant
just outside the department, Heman and Harold Estes, were asked
by Charles Drummond„the respondent's watchman, what they were
"waiting on."' When one of them replied that they desired to see
Clingan, Drummond told them that they would have to wait outside
the plant gate. The Estes brothers then proceeded toward the gate,
met Clingan, and told him that they had just been discharged by
Stover. Clingan replied that Stover "was the boss in there" and
then, speaking to Harold Estes, said, referring to the May 8 incident
described above, "You thought you could keep all these boys from
working, didn't you, the other day?" When Harold Estes replied
that he "was just the spokesman," Clingan concluded the conversa-
tion with, "Stover is the boss, and whatever he does is all right with
me." Heman and Harold Estes then left the plant.
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the following Monday, May 15, 1939, Harold Estes went to
the plant to report for work. At the gate of the plant he was ad-
vised by Drummond that he could not enter the plant but would
have to wait outside to see Clingan ; that if he desired, to do so, he
could go to the office and secure his check; and that he could also
inform Heman Estes "that his check is waiting, too." Harold Estes
returned home and informed Heman that they were discharged, and
both returned during the course of the day and received their re-
spective checks for the wages due them. The checks showed
termination of their employment as of May 13, 1939.
Welch also returned to the plant on May 15 and reported for work
in the silica department. When Stover had assigned all the employees
but him to their respective positions, Welch told Stover that he de-
sired work. Stover, replied, "I don't have anything here for you."
Welch then asked Stover whether he objected to his seeking employ-
ment under the labor foreman and Stover said that he did not. Welch
applied to Gagany, the respondent's labor foreman, on the same morn-
ing and was given work for that day wheeling coal. Although Welch
reported for work daily thereafter for the remainder of the week he
was unable to secure further employment. On or about Wednesday
of that week Welch approached Gagany and asked whether there
was any chance of his securing further employment. Gagany told
Welch that he had nothing for him and that he would have to see
Clingan. On Thursday or Friday Welch asked Clingan why,he was
not getting further work. Clingan replied, "Well, you guys thought,
you were going to hold up the work in there, didn't you?"
The respondent contends that it did not discharge Harold and
Heman Estes and Welch. but that they refused assignments of
work on the morning of May 13, 1939, and voluntarily quit their
employment. The respondent contends further that if Harold and
Heman Estes and Welch were discharged, such action on the part
of the respondent was justified because of their insubordination in
refusing to accept the work assignments given them by Stover on
May 13.. In support of the respondent's contentions, Stover testified
that on May 13, 1939, he instructed Welch to operate the press which
had been changed to make flat brick instead of shapes because Welch
had received only 3 days' work that week, was more experienced in
operating a press making straight brick than was Harold Estes, and
was also more efficient. Stover testified further that because 16 men
reported for work on the morning of May 13 and only 15 were
needed to operate the three presses to be run, he had intended to
send one Stamper, an employee who was "sort of extra man," home
and give employment to the remaining 15; that he instructed Welch
to run the press and Harold Estes to "off-bear" on the crew of Stegali
THE NILES FIRE BRICK COMPANY 433
in the place of Stamper; that Harold Estes became angry and
said, "If I can't run my press, I want my money"; and that Stover
then told Estes, "I guess we can arrange it for you." Stover tes-
tified that when Welch heard Harold Estes protest against his
assignment, Welch refused to operate the press and was then told
by Stover that there was no other work for him ; that he then
requested Heenan Estes to run the press and Estes refused, saying,
"Damn if I will scab for you, give me my money." Stover testified
that a few minutes later Harold Estes threatened him, saying, "I
have a notion to knock your damn head off" and that he would "cause
these fellows to strike around here" ; and that Stover then ordered
both Estes brothers from the plant and advised them that their checks
would be waiting for them. Stover, denied that he had requested
Nuzzi and Long to operate the press and was corroborated in this
testimony by Nuzzi. Nuzzi also corroborated Stover's testimony to
the effect that the Estes brothers quit and demanded their money.
Drunnnond,` the watchman, also testified that when he encountered
Harold and Heman Estes in the plant shortly after their controversy
with Stover, Heenan Estes told him that he and Harold had quit
their jobs and desired to see Clingan.
Harold Estes, in his testimony, denied that he had been assigned
by Stover to off-bear on the morning in question 4 and he and Heman
Estes denied that they had asked Stover for their pay. Both Harold
and Heman Estes denied that they told Drummond that they had
quit.
Stover's testimony that he wanted Welch to operate the brick press
in question on the morning of May 13 because he was more experienced
in operating a press making 9-inch straight brick than was Harold
Estes and was more efficient is not credible in view of Harold Estes'
much longer service with the respondent as a press operator and the
testimony of both Harold Estes and Welch that Harold Estes was more
experienced than Welch in operating a press producing any sort of
brick. In this connection, we note that Harold Estes had taught Welch
to operate a press when Welch had worked under Estes as an off-bearer.
In addition, Stover admitted in his testimony that he had not advised
either Welch or Estes, at the time of the latter's removal, that the
press in question had been changed from making shapes to making
4 Even had Stover assigned Harold Estes to off -bear , as is claimed by the respondent,
such a transfer caused by Estes' leadership of the employees ' conceited acts sties, would
have been a discriminatory demotion . The position of press operator requires more skill
and carries with it more responsibility than that of off-bearer , and in addition it entitles
its holder to preferences with respect to employment over the off-bearers Nor could
Estes ' alleged refusal to submit to this discrimination and accept the less desirable posi-
tion purportedly offered him be deemed to constitute a voluntary resignation A "resig-
nation" under such circumstances is tantamount to a discriminatory discharge see
Matter of Waggoner Refining Company, Inc , et at and International Association of Oil
Field, Gas W ell and Refinery Won avers of America , et al , 6 N L. R B 731
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
straight brick or made any explanation as to why Estes was being re-
moved as operator. As to Stover's alleged desire to give Welch more
than 3 days' work, we note that Harold Estes also had worked only 3
days during the week of May 8. In addition, the matter of giving work
to Welch could readily have been solved, as was usual in such cases, by
giving him employment as an off-bearer in the place of Stamper, ad-
mitted by Stover to be an "extra" man, rather than by adopting the
unusual procedure of removing Estes from his position as press
.operator.
The Trial Examiner, who had an opportunity to observe the wit-
nesses, credited the testimony of the Estes brothers, Welch, and Whitt
with respect to the events of the morning of May 13, 1939, and found,
with respect thereto, substantially as we have found above. Upon all
the evidence, we further find, as did the Trial Examiner, that Harold
Estes was removed by Stover from his position as press operator on
May 13,1939, and was discharged when he protested such removal ; and
-that Heman Estes and Welch were discharged by Stover on the same
date when they refused to take, the position of press operator vacated by
-the removal of Harold Estes therefrom.
We further find, as did the Trial Examiner, that Stover's action in
.assigning Welch to operate the press in-place of Estes was not moti-
vated by any of the reasons assigned by the respondent. On the con-
-trary, such action, coming within a few days after May 8, convinces
us that Estes had incurred the displeasure of the respondent because
.of his leadership in the concerted activities of the employees on that
date, and that the respondent sought by this means to rid the plant of
such leadership and thus prevent a possible recurrence of such ac-
tivities by the employees. This conclusion is borne out by Clingan's
-remark to Estes that Estes thought that he "could keep these boys from
working . . . the other day."
That Welch, though not prominent in the activities of May 8, and
Reman Estes were refused further employment by Stover and dis-
charged for the same reason is clear also from Clingan's statement to
Welch that "you guys thought you were going to hold up the work
in there, didn't you?" In this connection it is significant that Nuzzi
and Long, who were not identified by the respondent with the May 8
concerted activities, were not discharged for declining to operate Harold
Estes' press.
As stated above, however, the respondent claims that the action of
Heman Estes and Welch in refusing to accept employment operating
the press from which Harold Estes had been removed constituted
insubordination for which the respondent was justified in discharging
them. However, the respondent's discriminatory failure to discipline
or discharge either Nuzzi or Long for the same sort of alleged insub-
ordination is both significant and unexplained. Furthermore, even
i
THE NILES FIRE BRICK COMPANY 435
assuming that the refusal of Welch and Henan Estes to accept work
on Harold. Estes'lpress was a factor in their discharge, the Act does
not require that Heman Estes and Welch should have acquiesced in the
discriminatory treatment of their fellow employee. Under the Act,
employees are accorded the right to engage in concerted activity for
their mutual aid and protection. The refusal of Heman Estes and
Welch to acquiesce or participate in any manner in the respondent's
unlawful discrimination against Harold Estes falls within the purview
of concerted employee activity which is protected by the Act. Pro-
voked as it was by the respondent's unfair labor practice with.respect to
Harold Estes, such refusal on the part of Heman Estes and Welch
cannot be deemed an act of insubordination to justify their discharge.
When suddenly confronted by unfair labor practices directed against
a leader of the Union and of their concerted activities and plainly
designed to deprive them of their most effective leadership, employees
are not limited to the right to engage in an organized total strike in
protest against such conduct. Pursuant to their broader right to form,
join, and assist labor organizations and engage in concerted activities
for their mutual aid and protection, they may protest against and de-
cline to lend any assistance to the respondent's unlawful acts. Here,
Heman Estes and Welch were instructed by the respondent to take a
job which they knew would result in the removal of a leader of their
concerted activities and thus deal a strong blow to those activities.
Their refusal, together with other employees, so to do, while not a
total strike, is analagous conduct in the nature of a partial strike and
is equally permissible under the Act as concerted activities for the
purpose of mutual aid and protection.'
The respondent by discriminating against Heman and Harold
Estes and Welch because of their concerted activities clearly
discouraged membership in the Union or in any other labor
organization.
Although «releh received 1 day's work as a laborer after May 13,
Stover's statement to him on May 13, when lie refused to operate
Estes' press, and Clingan's remark thereafter clearly show that the
respondent considered that his status as an employee ended on
May 13 when he refused to operate the press in the place of Harold
Estes.
We find that the respondent discharged Harold Estes, Heman
Estes, and Charles Welch on May 13,-1939, because they engaged
in concerted activities with other employees for their mutual aid
and protection, thereby discriminating in regard to their hire and
tenure of employment and the terms and conditions of their employ-
ment, and thereby discouraging membership in the Union and in
6Cf. Matter of Harnischfeger Corporation and Amalgamated Association of Iron, Steer
Tin I9orhers of North America, Lodge 1114, 9 N L. R. B. 676.
440133-42-Vol 30-29
436 DECISION-S OF NATIONAL LABOR RELATIONS BOARD
other labor organizations and interfering with, restraining,- and
coercing its employees in the exercise ' of the rights guaranteed ' in
Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We fine that the activities of the respondent set- forth iir See-
t,ion IN 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 certain unfair
labor practices, we shall order it to cease and desist therefrom and
take certain affirmative action which we find necessary to effectuate
the policies of the Act.
We have found that the respondent discriminated in regard to
the hire and tenure of employment,of Hernan Estes, Harold Estes,
and Charles Welch, thereby discouraging membership in a labor
organization. In order to effectuate the policies of the Act, we shall
order the respondent to offer to Harold Estes and Welch immediate
and full reinstatement to their former or substantially ;equivalent
positions without prejudice to their seniority and other rights and
privileges, and to make each of them whole for any 'loss of pay he
has suffered by reason of the respondent's discrimination against
him by payment to him of a sum of money equal to that which lie
normally would have earned as wages from the date of the respond-
ent's discrimination against him to the date of the offer of'rein-
statement, less his net earnings 5 during said period.
Following his discharge by the respondent, Heman Estes con-
tracted tuberculosis. He was treated in a sanitarium from Novem-
ber 6. 1939, until July. 15,, 1940. Although at the time of the
hearing the disease had been arrested, Estes was still unable, to
work. Because of Heman Estes' protracted illness and his inability
to work for a period of many months immediately prior to the
hearing, we will not order his reinstatement. We shall order the
respondent, however, to make liim whole for ` any loss of pay he
e 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 the unlawful
discrimination against him and the consequent necessity of his seeking employment else-
Nthere. See Matter of Crossett Lumber Company and Sawmill ll'orT,ers Union . Local 2590;
S N. L R B. 440 Monies received for Rork performed upon Federal, State, county(
municipal , of other work-relief projects shall be considered as earnings . See Republic
Steel Corporation v National Labor Relations Board , 311 U S 7
i
THE NILES FIRE BRICK COMPANY 437 _
nialy have suffered by reason of the respondent 's discrimination
against him by payment to him of a sum of money equal to that
which he would normally have earned as wages from the date of
the discriniinatioii against him to the date on which he became
physically incapacitated from working because of illness; less his
net earnings 7 during said period.
Upon the basis of the foregoing finding of fact and upon the
entire record in the case , the Board makes the following :
CONCLUSIONS OF LAW
1. United Brick Workers L. I. U., No. 198, affiliated . with the
Congress of Industrial Organizations , is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act,
the respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (1) of the Act.
r 3..By discriminating in regard to the hire and tenure of employ-
ment,of Harold Estes, Heman Estes, and Charles Welch , thereby
discouraging membership 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. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 ( 6) and (7)
,of the Act.
ORDER
Upon the 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, Niles , Ohio, and its
officers, agents , successors , and assigns , shall:
1. Cease and desist from : -
(a) Discouraging membership in United Brick Workers L. I. U.
No. 198, affiliated with the Congress of Industrial Organizations, or
in any other labor organization of its employees, by demoting, dis-
charging , or laying off any of its employees , or in any other manner
discriminating in regard to the hire and tenure of their employment
or any term or condition of employment;
" (b) Ih any other manner interfering with, restraining , or coerc-
ing its employees in- the exercise of the right to self-organization,
to form, join , or assist labor organizations , to bargain collectively
through representatives of their own choosing , and to engage in
7 See footnote 6, supra
-438 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activities for the purpose of collective bargaining or other
mutual aid or 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) Offer to Harold Estes and Charles Welch immediate and
full reinstatement to 'their former or substantially equivalent posi-_
tions, without prejudice to their seniority and other rights and
privileges ;
(b) Make whole the said Harold Estes and Charles Welch for
any losses of pay they may have suffered by reason of the respond-
ent's discrimination against them by payment to each of them respec-
tively, of a sum of money equal to that which he would normally
have earned as wages during the period from the date of such dis-
crimination to the date of the respondent's offer of reinstatement,
less his net earnings 8 during said period ;
(c) Make whole Heman Estes for any loss of pay he may have
suffered by reason of the respondent's discrimination against him
by payment to him of a sum of money equal to that which he
would normally have earned as wages during the period from the
date of such discrimination to the date on which he became physically
incapacitated from working because of illness, less his net earnings 8
during said period; -
(d) Immediately post in conspicuous places in and about its plant
at Niles, Ohio, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees'
stating (1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order; (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (n), (b) and (c) of this- Order; and (3)
that the respondent's employees are free to become or remain mem-
bers of United Brick Workers, L. I. U. No. 198, affiliated with the
Congress of, Industrial Organizations, and that the respondent will
not 'discriminate against any employee because of membership or
activity in that organization;
(e) Notify the Regional Director for the Eighth Region (Cleve-
land, Ohio) in writing within ten (10) days from the date of this
Order what steps the respondent has taken to comply herewith.
CHAIRMAN HARRY A. MILLIS took no part in the consideration of
the above Decision and Order.
I See footnote 6, supra: