Tulsa Boiler and Machinery Co.

National Labor Relations Board - Board Decisions

May 15, 1940

23 N.L.R.B. 846 (N.L.R.B. 1940)

In the Matter of TULSA BOILER AND MACHINERY COMPANY and STEEL
WORKERS ORG,\NIZING COMMITTEE
Case No. C-,966.-Decided May 15, 1940
Steel Equipment Manufacturing Industry-Settlement Agreement: upheld:
between agent of Board and respondent in full settlement of all charges filed
prior thereto; provided for reinstatement of certain employees and preferential
treatment of others ; given effect for reasons of policy, no showing of a con-
tinuation of the unfair practices settled by the agreement or a breach thereof;
subsequent unfair labor practices do not require disturbance of agreement where
principal purpose of agreement was to remedy the discrimination against the
persons named therein, which has been effectuated-Interference, Restraint, and
Coercion: events antedating and covered by settlement agreement not con-
sidered; charges of sustained as to anti-union statements made subsequent
thereto-Discrimination : evidence antedating agreement concerning discrimina-
tory discharge of persons named therein not considered ; discrimination as to
these individuals after the agreement not proven; cases of six other employees
not named in agreement considered ; charges sustained as to one and dismissed
as to five employees-Reinstatement Ordered: discriminatorily discharged
employee-Back Pay: awarded.
Mr. L. N. D. Wells, Jr., for the Board.
Mr. Robert W. Raynolds, of Tulsa, Okla., for the respondent.
Mr. H. A. Rasmussen, of Houston, Tex., for the S. W. O. C.
111r. Gilbert V. Rosenberg and Mr. Joseph Forer, of counsel to the
Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges duly filed by Steel Workers Organizing
Committee, herein called the S. W. O. C., the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for
the Sixteenth Region (Fort Worth, Texas), issued its complaint
dated May 12, 1938, against Tulsa Boiler and Machinery Company,
Tulsa, Oklahoma, herein called the respondent, alleging that the re-
spondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (3) and
23 N. L. R. B., No. 89.
846
TULSA BOILER AND MACHINERY COMPANY 847
'Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, herein called the Act. Copies of the complaint and notice of
hearing were duly served upon the respondent and the S. W. O. C.
On May 18 and May 27, 1938, the Regional Director, acting as
agent for the Board pursuant to Article IV, Section 1 (c), of Na-
tional Labor Relations Board Rules and Regulations-Series 1, as
amended, and Section 10 (b) of the Act, amended the complaint.
Concerning the unfair labor practices, the complaint, as amended,
alleged in substance, that the respondent discouraged membership in
the S. W. O. C. by discharging, refusing to reinstate, and otherwise
discriminating against 31 named employees' because of their mem-
bership and activity in the S. W. O. C., and that by the aforesaid
and other acts, the respondent interfered with, restrained, and co-
erced its employees in the exercise of the rights guaranteed in Section
7 of the Act. On May 26, 1938, the respondent filed its answer to
the complaint as amended in Which it admitted certain allegations
of the complaint as amended, denied the alleged unfair labor prac-
tices, and set up certain matters of affirmative defense.
Pursuant to notice, a hearing was held from June 2 to 9, 1938,
before Joseph F. Keirnan, the Trial Examiner duly designated by the
Board. The Board and the respondent were represented by counsel
and the S. W. O. C. by its representative; all participated in the
hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties. During the hearing counsel for the Board
moved to amend the complaint to include allegations of discrimina-
tion against R. H. Ferguson. The Trial Examiner allowed the
amendment over the respondent's objection, but deferred the cross-
examination of Ferguson by the respondent until the close of the
hearing.2 At the close of the Board's case counsel for the respondent
moved to dismiss with prejudice the allegations of the complaint as
to six employees 3 who did not testify. The motion was granted.
Numerous other motions and objections to the admission of evidence
were made and ruled upon at the hearing. The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
, W. F. (Frank) Coats. Hariv C Miller, John C FLoag, Jr., Carl Gieen, R. B Jones.
J. C. Cloud, C. W Fitzpatrick, L. J Lyle, W. L. Mills, Lawrence C. Wiggins, J A. Millei,
Lawrence Wooldi edge, H. G Wooldridge, Harold B. Cogbill, J. T. Arp, I A. Stockton, Jack
(Francis Joseph) Spiatt. Grady Cunningham, Claud Morris, J. W Cox, Jess Cloud, Elmo
Cox, Walter C Mahon. Aichie Bottomley, Connie (Mickoy) Gordon, It T. Wilson, AV P
Whitten, A. L Kerr, R L. Vance, Lawrence Hardesty, and L. IT naynes
2 At the close of the hearing the respondent, without waiving its objection, cross-
examined Ferguson and introduced evidence concerning its alleged discrimination against
1001 gu son
3 Grady Cunningham, Claud Morris, Jess Cloud, A R Kerr, R L Vance, and L H
llavnes
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 10, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties . Therein
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. He
recommended that the respondent cease and desist from the unfair
labor practices so found and take certain affirmative action of
remedial nature, including the reinstatement with back pay of 26
individuals.
Exceptions to the Intermediate Report were thereafter filed by the
respondent . Pursuant to notice duly served upon the parties , a hear-
ing was held before the Board at Washington, D. C., on April 27,
1939 , for the purpose of oral argument . The respondent was repre-
sented by counsel and participated in the argument. The S. W. O. C.
did not appear.
The Board has considered the exceptions filed by the respondent
and finds them to have merit only in so far as they are consistent
with the findings of fact, conclusions of law, and order set forth
below.
Upon the entire record in the case , the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Tulsa Boiler and Machinery Company is an Oklahoma corporation
having its office and plant in Tulsa, Oklahoma. It is engaged in
the manufacture of oil -field equipment , steel derricks , vats, stills
for refineries , and other types of special order structural steel
products . The plant consists of three departments , machine, boiler,
and structural . The principal raw materials used by the respondent
are sheet steel , angle iron , steel beams , rivets , nuts, welding materials,
paint, and steel sections . A large proportion of the raw materials
are transported to the respondent 's plant from points outside the
State of Oklahoma . During 1937 the respondent sold finished
products valued at approximately $2,000,000, of which a large pro-
portion were shipped to points in Kansas, New Mexico, Arkansas,
Texas, and Louisiana.
IT. THE LABOR ORGANIZATION INVOLVED
Steel Workers Organizing Committee , affiliated with the Congress
of Industrial Organizations, is a labor organization admitting to its
membership employees of the respondent.
TULSA BOILER AND MACHINERY COMPANY 849
III. THE UNFAIR LABOR PRACTICES
A. The alleged discriminatory discharges
1. Chronology of events
Union organization at the respondent's plant began on July 21,
1937, when 21 of the respondent's employees went to the home of an
organizer after work on the day shift ended. Of these 19 joined
the S. W. O. C. On the next day the respondent laid off or dis-
charged 6 of these employees, J. C. Cloud, Carl Green, Harry C.
Miller, Frank Coats, R. B. Jones, and John C. Hoag, Jr. At or
about the same time the respondent laid off or discharged in all
between 25 and 35 employees. Thereafter, at various times prior
to November 22, 1937; the respondent laid off or discharged a num-
ber of other employees, certain of whom are named in the complaint.
In the latter part of November 1937 the respondent reached an
agreement with John F. LeBus, a Field Examiner for the Board, in
"final adjustment of all charges" which had theretofore been filed with
the Board against the respondent .4 In the agreement the respondent
undertook as follows: (1) to reinstate, on specified dates in November,
Harry C. Miller, Coats, Hoag, Green, Jones, and J. C. Cloud, and
give them "continuous employment whenever we have work to be
clone which they can do"; (2) to place "in a likewise position as soon
as possible" Haynes, Lawrence Wooldridge, H. G. Wooldridge,
Gordon, Lyle, Fitzpatrick, Vance and Spratt; (3) to "give every
consideration possible . . . and whenever possible . . . give prefer-
ence over any new men" to J. W. Cox, Jess Cloud, Paul McKenna,
Bottomley, Arp, Clyde Wedley, Cogbill, Lou Meyers, Mahon, T. E.
Hudson, Mills, Cunningham, E. E. Stevens, J. A. Miller, Morris, and
Wilson.
The respondent recalled to work the six individuals coming within
the first category of the agreement and in accordance with an oral
understanding paid each a sum representing 60 per cent of back pay.
The men thereafter worked with varying degrees of irregularity.
chiller last worked on January 18, 1938; Coats on June 1, 1938; Green
on February 3, 1938; and Cloud on December 28, 1937. Hoag and
Jones last worked in December 1937, the latter then "quitting" in the
interval between his tentative discharge by a foreman for alleged
cause and approval or disapproval of the foreman's action by the
department manager.
Of the other individuals named in both the settlement agreement
and the complaint only two were recalled to work, Lawrence
4 The record in this proceeding does not contain the charges which the settlement
agreement purported to adjust
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wooldridge working 5 days in November and W. L. Mills working
irregularly until December 27, 1937.
2. Effect of the settlement agreement
We have heretofore held that where an agreement in settlement of
charges of unfair labor practices has been reached with the participa-
tion of agents of the Board, we shall, for reasons of policy, refrain
from considering the alleged unfair practices settled' by the agreement
unless there has been a continuation of such practices or a breach of
the agreement.5
In the present case the record does not support a finding that the
respondent breached the terms of the settlement agreement or en-
gaged in anti-union discrimination by its failure to accord more
regular employment to those individuals recalled to work or to give
any employment to the others named in the agreement. Of those
named in both the agreement and the complaint all had been em-
ployed in the structural shop- with the exception of J. W. Cox and
Spratt, who had worked in the boiler shop. The respondent's pay
roll for November 15, 1937, carried 101 structural-shop employees,
whereas the 1937 peak had been 125 for the September 15 pay-roll
period. The pay roll for November 31, 1937, carried 83 structural-
shop employees, and subsequent pay rolls indicate a persistent de-
cline. Thus the pay roll for 1.12ay 31, 1938, carried 44 names and
only 9 men worked in the structural shop on June 8, 1938. The
November 15, 1937, pay roll for the boiler shop carried 118 names,
whereas the 1937 peak had been 234 in July. By January 31, 1938,
the pay roll rose to 137, but declined to 108 by May 31, 1938. Six
men, consisting of 3 gatemen, a blacksmith, an electrician, and a
punchman, worked in the boiler shop on June 8, 1938. The record
does not contain evidence of the number of union members working
in the plant at any date and therefore does not afford any basis
for comparison between the lay-offs and discharges of union and-
non-union men.
These statistics must be evaluated, furthermore, in the light of
the respondent's system of putting men to work. The employees re-
port daily at the plant, and the foremen then selects the individuals
who are to work on that day. No principle of seniority prevails,
5 See Matter of Shenandoah-Dives Mining Company and International Union of Mine,
Mill & Smelter Workers, Local No. 26, 11 N. L . R. B. 885; Matter of Godchaux Sugars,
Inc. and Sugar Mill Workers ' Union, Locals No. 21177 and No . 2188 affi liated with the
American Federation of Labor, 12 N L. R. B 568; Matter of Chambers Corporation and
A llied Stove Mounters and Stove Processors International Union, Local No. 36 (A. F
of L ), 21 N L R. B. 808.
TULSA BOILER AND MACHINERY COMPANY 851
men are frequently shifted from one type of work to another, and
labor turn-over is extremely high.°
Although the evidence does not, therefore, prove discrimination in
employment after the date of the settlement agreement as against
employees named in the agreement, nevertheless, the respondent
thereafter engaged in certain other unfair labor practices.7 It is our
opinion, however, that the principal purpose of the settlement agree-
ment was to remedy the alleged discrimination against the individ-
uals named therein, and that that purpose has been effectuated.
Under the circumstances of this case the respondent's subsequent un-
fair labor practices do not constitute such continuance or resump-
tion of the practices settled by the agreement as to require disturb-
ance of the agreement." We consider that the settlement agreement
disposes of the issue of discrimination prior to its date against per-
sons named therein. Inasmuch as we find that they were not dis-
criminated against thereafter, the complaint as to them will be dis-
missed . Conversely, we do not view the agreement as disposing of
allegations of discrimination against persons for whom it makes no
provision. We shall accordingly consider the cases of such persons,
even where the alleged discrimination occurred prior to the execution
of the agreement .9
3. Alleged discrimination against employees not included in
settlement agreement
Elmo Cox was employed by the respondent on March 24, 1937, as
a common laborer in the structural shop. He joined the S. W. O. C.
on September 8 or 9, 1937, and first wore his union button in the shop
on or about October 13, 1937. On that day he was laid off by his fore-
man, who complained that he was "kind of laying down on the job."
He returned to work on October 19, 1937, and worked through Oc-
tober 25, 1937. Cox had worked at irregular intervals from the time
when he was first employed. Moreover, approximately 40 other em-
ployees in the structural shop were laid off in October 1937. Arthur
Frey, superintendent of the structural shop, and J. W. Brown, fore-
'Thus in 1937 the respondent hired 287 new men for the structural shop and 289 for
the boiler shop. As already indicated , these figures are considerably in excess of the
number of men working during any one pay-roll period in that year.
7 See Section III, A, 3 and III, B , infra.
e Cf. Matter of Corinth Hosiery Mill, Inc and American Federation of Hosiery Workers,
16 N. L R . B. 414, where the circumstances required a contrary conclusion.
9 While the agreement purports to settle charges previously filed, those charges are not
part of the record. The Board, taking cognizance of the charges on file, notes , however,
that Lawrence Hardesty is the only person who was named in the charges in question and
in the instant complaint , but not in the settlement agreement . Since, as we hereinafter
find, the allegation of discrimination against Hardesty is not supported by the record, we
need not determine the effect of the settlement agreement upon his case
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man, testified that Cox was very lazy and that they had tried their
best to keep him on because his father was a valued employee.
The evidence does not demonstrate discrimination against Cox.
The allegations of the complaint to that effect will be dismissed.
I. A. Stockton worked for the respondent for approximately 4
months in 1923 and 6 months in 1929. He resumed employment on
March 9, 1936 , and worked through July 1936, with an 11 -day lay-off
in April and a 13 -day ]ay-off in May. He returned to work in De-
cember 1936 as a common laborer in the structural shop and worked
through November 28, 1937, with frequent interruptions.
Stockton joined the S. W. O. C. in September 1937. On November
4, 1937, he was laid off until November 26,, and last worked on Novem-
ber 27 and 28. He testified that on the morning of November 29,
1937, his foreman , J. W. Brown , told him he would be laid off until
December 1, 1937, in order to divide the work. Stockton attended a
S. W. O. C. meeting for the first time in the evening of November 29,
1937. He reported to work on December 1, but was told by Frey that
no work was available. Stockton testified that Frey told him at the
time that he should not have joined the S. W. O. C. and that if he
wanted to get rid of his card he might go back to work.
J. W. Brown and Frey testified that Stockton was "broke down
pretty badly" and that they had given him some work out of pity.
They also testified that early in November 1937, Stockton asked for a
few days' work a week in order to get his automobile paid for, that
shortly before November 26, Stockton asked for two more days' work,
and that in both instances they granted the requests . Stockton tes-
tified that he asked Brown before November 26 for either 2 days' or
a few days' work. Frey denied ever saying anything to Stockton
about the S. W. O. C. We do not find it necessary to resolve the
conflict in testimony . During November 1937, 35 of the structural-
sliop-employees quit, were laid off , or were discharged.
The evidence does not sustain a finding of discrimination against
Stockton. The allegations of the complaint to that effect will be
dismissed.
Lawrence Hardesty was employed by the respondent as a carpenter
in March 1937, but occasionally did work other than carpentry.
Hardesty joined the S. W. O. C. on July 21, 1937, and was laid
off on October 2, 1937. The respondent contends that Hardesty was
employed primarily for certain carpentry jobs, was given other work
only in the intervals between such jobs, and was finally laid off when
there was no more carpentry work . The respondent has not
employed a carpenter to replace Hardesty.
The evidence does not sustain a finding of discrimination against
Hardesty . The allegations of the complaint to that effect will be
dismissed.
TULSA BOILER AND MACHINERY COMPANY ' 853
W. P. Whitten worked for the respondent for 8 months in 1934
and a month in April or May of 1935 or 1936 . In August 1936 he
resumed work as a general helper in the structural shop at 40 cents
an hour . He subsequently obtained two raises of 5 cents each, the
last raise occurring in July 1937. Whitten joined the S. W. O. C. on
August 27, 1937. Thereafter he worked very infrequently because
of illness, but resumed work in November or December 1937. On
December 5, 1937, Whitten attended his first S. W. O. C. meeting.
He worked on December 6, and attended another S. W. O. C. meeting
that night. The next day, December 7, he was laid off. On January
5, 1938, he asked Manly Clark, manager of the structural department,
for work. Clark offered to give him steady employment through
January 15, and told him he had better find a job elsewhere. Whitten
then worked through January 14, 1938. Whitten testified that on
January 16, 1938, Frey told him, "Red, you done something you ought
not to have done; your best, friends are your damn enemies," and
acquiesced in Whitten's statement that he was not working because
he had joined the S. W. O. C. This testimony was contradicted by
Frey. We credit Whitten's account.1° Clark testified that he did
not think Whitten was worth the money they had been paying him.
However, in view of the pay raises received by Whitten, the manner
in which his lay-off of December 7, 1937, followed his first attendance
at S. W. O. C. meetings, and Frey's statements on January 16,1938, we
do not find Clark's explanation credible.
On the entire record we find that the respondent discharged Whitten
to discourage S. W. O. C. membership and activity and thereby inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
R. H. Ferguson worked for the respondent for a short period in
1929 and resumed work in 1930. He joined the S. W. O. C. about
July 23, 1937. In September 1937 Ferguson was running an angle
shear in the structural department at a wage of 65 cents an hour. At
that time he was elected president of a union sponsored by the re-
spondent, but continued his S. W. O. C. membership. After his elec-
tion he attended a S. W. O. C. meeting. About September 13, 1937,
he was summoned to Clark's office, where Clark, Frey, and Charles W.
Flint, president of the respondent, indicated to him their displeasure
at his having attended the S. W. O. C. meeting. On September 15,
1937, his foreman, J. W. Brown told him to leave the shears and go
help another employee known as "Cowboy." Ferguson went to the
floor on which Cowboy was working at what Ferguson described as
-"It should be observed that our d;sbelief of Frey's testimony in this and other respects
is based on factors other than the'evidence that Frey was convicted of a felony in 1925
we do not regard this conviction as impeaching his credibility ; but in our opinion the
record otherwise raises serious doubts as to his veracity.
283034-41-vol 23-55
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"common labor gang" work. Ferguson stayed ' for a few minutes and
then drew his money and left. J. W. Brown testified that Ferguson
was rated as one of the better workers; that he asked Ferguson to
work with Cowboy because an assembler was needed for the job; that
he therefore put another man on the shear; and that the first thing
he knew Ferguson was gone.
On September 17, Herb Brown, son of J. W. Brown and himself
a foreman, brought to Ferguson's home a pint of liquor. After Brown
and Ferguson had drunk a large part of the liquor, Ferguson asked
Brown to tell Mrs. Ferguson "the truth." Brown told Mrs. Ferguson
that Ferguson had had to quit or he would have been discharged.
He also said that his father had told him on the morning of September
15 that he had "to get shet of Ferguson" the next day.
The evidence raises a suspicion that the respondent was planning
to get rid of Ferguson on account of his S. W. O. C. membership.
However, in the absence of any showing as to the permanence- or
impermanence of his job with Cowboy and as to the precise nature
of the work, there is no basis for concluding that his assignment to
another job was intended as execution of the plan. The allegations
of the complaint as to discrimination against Ferguson will be
dismissed.
Lawrence C. Wiggins was employed by the respondent as an
electrician and maintenance employee in May 1933 and joined the
S. W. O. C. on July 21, 1937. He was elected president of the
S. W. O. C. local on July 22, 1937, , and still held that office at the
time of the hearing. On the evening of December 1, 1937, Wiggins
and Frey had a heated altercation in the plant. Wiggins' own
testimony indicates that he provoked the disturbance and that he
may have been partly intoxicated. The next morning Wiggins was
discharged. In March or April 1938 Flint told LeBus that he would
have given Wiggins another chance except that he had previously
caused trouble. The nature of the previous "trouble" was not at that
time disclosed to LeBus. On a previous occasion, however, Flint
had told LeBus that the respondent had had considerable trouble
with certain machines in the structural shop for whose maintenance
Wiggins was responsible. The respondent contends that this was-the
"trouble" referred to by Flint in the April 1938 conversation. The
record demonstrates that in October 1937 Wiggins had, in fact, been
relieved from responsibility for the structural-shop machines, that
prior to that time there had been occasional machine difficulties in
the structural shop, and that a new man was then hired to service
the structural-shop machines.
The evidence does not support a finding of discrimination against
Wiggins. The allegations of the complaint to that effect will be
dismissed.
TULSA BOILER AND MACHINERY COMPANY 855
B. Intel ference, restraint, and coercion
On November 22, 1937, Carl, Green had a conference with Clark
relative to Green's reinstatement under the settlement agreement.
Clark told Green at the time not to "shoot off" that the "government"
had compelled his reinstatement, and told him, "Now you are going
back to work, I wish you would cut out a little bit of that up yonder."
On January 6, 1938, Frey told Green that he did not have much
work, but could give Green work "if you will bear with me." Green
asked for the meaning of the remark, and Frey said, "Damn it, it is
against the law for me to talk facts with the best friend I've got,
but I will see that you get work if you cut out some of that up there."
It is apparent from the record that the remarks by Clark and Frey,
somewhat cryptic out of their environmental context, referred to
Green's S. W. O. C. membership and activity.
On December 28, 1937, Frey told Frank Coats : "I would like to
have you back with us just like you were before. This union busi-
ness isn't going to get you any place."
On January 6, 1938, Clark told Coats: "This union won't do you
any good. I went through one of these damned things. Flint is
just contrary enough to shut this damn place down." A few minutes
later Frey told Coats that Clark thought Coats was going to quit
the S. W. O. C., and that "it sure makes Mr. Clark mad every time
he sees one of those C. I. O. buttons." Coats then dropped his button
in Frey's pocket. Frey said, "I am glad you have changed your
mind and are coming back with us." He then patted Coats on the
shoulder and added, "Frankie, this company pays me big money
to run this place and I am not going to let a union come in here
and take it away from me." Coats thereafter refrained from attend-
ing S. W. O. C. meetings and serving. as S. W. O. C. treasurer. On
January 25, 1938, Frey taxed Coats with the fact that his name
had been "brought up" in a S. W. O. C. meeting and that he had
been associating with Carl Green and Harry Miller, both S. W. O. C.
members.
Early in January 1938 Clark asked W. L. Mills if he would "lay
off" S. W. O. C. meetings if he went back to work.
The findings previously made in this section are based on testi-
mony by Green, Coats, and Mills, of which all, or almost a11, was
contradicted by Clark and Frey. The record is such, however, as
to inspire in us, as in the Trial Examiner, a strong distrust of the
credibility.of Clark and Frey.
We find that by the coercive remarks and conduct of its super-
visory officials, described in this section, the respondent has interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities set forth in Section III, above , occur-
ring 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
We have found that the respondent has engaged in unfair labor
practices by interfering with, restraining, and coercing its employees
,in the exercise of the rights guaranteed in Section 7 of the Act, and
by discriminating in regard to hire and tenure of employment to dis-
courage S. W. O. C. membership. Accordingly, we shall order the
respondent to cease and desist from engaging in such unfair labor
practices. Moreover, in order to effectuate the policies of the Act,
we shall order the respondent to offer W. P. Whitten immediate and
full reinstatement to his former or a substantially equivalent posi-
tion, without prejudice to his seniority and other rights and privi-
leges. We shall also order the respondent to make Whitten whole
for any loss of pay he may have suffered by reason of his discrimina-
tory discharge, by payment to him of a sum of money equal to the
amount which he normally would have earned as wages from Jan-
uary 14, 1938, until the date of the offer of reinstatement, less his
net earnings during said period."'
Upon the basis of the foregoing findings of fact and upon 'the
entire record in the case, the Board makes the following :
CONOLusIONs OF LAW '
1. Steel Workers Organizing Committee, affiliated with the Con-
gress of Industrial Organizations, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of W. P. Whitten, thereby discouraging membership in Steel
Workers Organizing Committee, the respondent has engaged in, and
"By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for the unlawful
discrimination and the consequent necessity of the employee 's seeking employment else-
where See Matter of Crossett Lumber Company and Uncted Brot1erhood . 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 provided below in the ' Order,
shall be deducted from the sum due the employee , and the amount thereof " shall ,be paid
to the appropriate fiscal agency of the .Federal , State, county , municipal, or othergovern-
ment or governments which supplied the funds for'said work-relief projects:' '
TULSA BOILER AND MACHINERY COMPANY 857
is engaging in unfair labor practices within the meaning of Section
8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
5. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (3) of the Act as respects W. F. (Frank)
Coats, Harry C. Miller, John C. Hoag, Jr., Carl Green, It. B. Jones,
J. C. Cloud, C. W. Fitzpatrick, L. J. Lyle, W. L. Mills, Lawrence C.
Wiggins, J. A. Miller, Lawrence Wooldridge, H. G. Wooldridge,
Harold B. Cogbill, J. T. Arp, I. A. Stockton, Jack (Francis Joseph)
Spratt, Grady Cunningham, Claud Morris, J. W. Cox, Jess Cloud,
Elmo Cox, Walter C. Mahon, Archie Bottomley, Connie (Mickey)
Gordon, R. L. Wilson, A. L. Kerr, R. L. Vance, Lawrence Hardesty,
L. H. Haynes, and R. H. Ferguson.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Tulsa Boiler and Machinery Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Steel Workers Organizing -Coi&-'
mittee, or any other labor organization of its employees, by'discharg-
ing any of its -employees or in any other manner discriminating' in'
regard to the hire, tenure of employment, or terms or conditions of
their employment because of membership in or activity in connection
with any labor organization;
(b) 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 or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to W. P. Whitten immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges;
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Make whole W. P. Whitten for any loss of pay he may have
suffered by reason of his discriminatory discharge by- payment to him
df a sum of money equal to that which he would have earned as wages
from January 14, 1938, the date of the illegal termination of his em-
ployment, to the date of the offer of reinstatement, less his net earn-
ings during that period;12 deducting, however, from the amount
otherwise due to said W. P. Whitten monies received by him during
said period for work performed upon Federal, State, county, mu-
nicipal, or other work-relief projects, and pay over the amount so
deducted 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 ;
(c) Post immmediately in conspicuous places at its plant, and
maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating : (1) that the
respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a) and (b) of this Order; (2)
that the respondent will take the affirmative action set forth in para-
graphs 2 (a) and (b) of this Order; and-(3) that the respondent's
employees are free to become or remain members of Steel Workers
Organizing Committee and the respondent will not discriminate
against any employee because of membership or activity in that
organization ;
(d) Notify the Regional Director for the Sixteenth 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 (3) of the Act
as respects W. F. (Frank) Coats, Harry C. Miller, John C. Hoag, Jr.,
Carl Green, R. B. Jones, J. C. Cloud, C. W. Fitzpatrick, L. J. Lyle,
W. L. Mills, Lawrence C. Wiggins, J. A. Miller, Lawrence Wooldridge.-
H. G. Wooldridge, Harold B. Cogbill, J. T. Arp, I. A. Stockton, Jack
(Francis Joseph) Spratt, Grady Cunningham, Claud Morris, J. W.
Cox, Jess Cloud, Elmo Cox, Walter C. Mahon, Archie Bottomley,
Connie (Mickey) Gordon, R. L. Wilson, A. L. Kerr, R. L. Vance,
Lawrence Hardesty, L. H. Haynes, and R. H. Ferguson.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above-Decision and Order.
a See footnote 11, supra.