Tyne Co.

National Labor Relations Board - Board Decisions

Aug 28, 1941

35 N.L.R.B. 63 (N.L.R.B. 1941)

In the Matter of TYNE Co. and STEAM FITTERs' PROTECTIVE ASSOCIA-
TION LOCAL No. 597, OF THE UNITED ASSOCIATION OF PLUMBERS AND
STEAMFITTERS OF THE UNITED STATES AND CANADA, AFFILIATED WITH
THE AMERICAN FEDERATION OF LABOR
Case No. C-188O.Decided August 28, 1,941
Jurisdiction : wholesale plumbing supply industry.
Unfair Labor Practices
Interference, Restrautt, and Coercion: questioning employees concerning their
union membership and the signing of a union petition ; making disparaging
statements concerning the union and union representatives; asking employees
to beat up union representative; threatening to close part of plant and to lay off
employees in the event they joined or assisted the union ; requesting employees
to resign from the union ; causing to be circulated among employees in the
plant during working hours a petition' in opposition to the union ; suggesting to
employees that they affiliate with a labor organization other than the union.
Discrimination.: discharges for signing union petition ; for refusal to sign anti-
union petitions ; and engaging in other union activities.
Remedial Orders: Reinstatement and back pay awarded; although Board found
Trial Examiner erred in the finding that employees are presently employed in
jobs substantially equivalent it held that even if such employment had been
obtained a reinstatement order is necessary to effectuate the policies of
the Act.
Mr. Charles F. MeErlean, for the Board.
Mr. James D. Murphy and Mr. Albin Dom7nermuth, of Chicago,
Ill., for the respondent.
Mr. Daniel D. Carmell, of Chicago, Ill., for the Union.
Mr. William H. Bartley, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge 1 duly filed by the Steam Fitters' Pro-
tective Association Local No. 597, of the United Association of
Plumbers and Steamfitters of the United States and Canada, affil-
I The original charge was filed on December 31, 1040; amended charge on January 13,
1941; and the second amended charge upon which the complaint issued on March 26, 1941.
35 N L R B , No. 13.
63
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iated with the American Federation of Labor , herein called the Union,
the National Labor Relations Board, herein called the Board, by the
Acting Regional Director for the Thirteenth Region ( Chicago, Illi-
nois), issued its complaint dated March , 29, 1941, against Tyne Co.,
herein called 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) and ( 3) and Section 2 ( 6) and (7)
of the National Labor Relations Act, 49 Stat . 449, herein called the
Act. A copy of the complaint , accompanied by notice of hearing,
was duly served upon the respondent and the Union.
With respect to the unfair labor practices , the complaint alleged
in substance : ( 1) that the respondent discharged and refused to re-
employ seven employees 2 because they joined and assisted the Union
and engaged in concerted activities with other employees for the pur-
pose of collective bargaining and other mutual aid and protection;
and (2 ) that the respondent from July 1, 1940 , to the date of the
complaint , questioned employees concerning their union membership
and the signing of a union petition by its employees ; made disparag-
ing statements concerning the Union and union representatives; asked
its employees to beat up the union representative ; threatened to close
part of the plant and to lay off employees in the event its employees
joined or assisted the Union , requested employees to resign from the
Union; caused to be circulated among the employees in the plant dur-
ing working hours a petition in opposition to the Union, and sug-
gested to employees that they affiliate with a labor organization other,
than the Union.
On April 9 , 1941, the respondent filed its answer denying that it
had engaged in any of the alleged unfair labor practices and made
affirmative allegations discussed more specifically hereinafter.
Pursuant to notice , a hearing was held on April 10 ,'12, and 14, 1941,
at Chicago , Illinois , before Gustaf B. Erickson , the Trial Examiner
duly designated by the Chief Trial Examiner . The Board, the Union,
and the respondent were represented by counsel and participated in
the hearing . All parties were afforded full opportunity to be heard,
to examine and cross -examine witnesses , and to introduce evidence
bearing upon the issues . At the commencement of the hearing the
respondent moved to dismiss the complaint . The motion was denied.
Thereafter counsel for the Board moved to strike specified portions
of the respondent 's answer. The motion was granted.8 At the close
2 Michael Heneghan, Frank Borowczyk , Peter Duffy , William Heneghan , John Kent, Pat-
rick Walsh, and Michael Sullivan.
8 That part of the answer was stricken which averred affirmatively that the Union bad
violated the Act ; that the Union has promoted industrial strife at a time when the activi.
,TYNE COMPANY 65
of the Board's case and at the close of the hearing the respondent
moved that the complaint be dismissed. The motion was denied at
the close of the Board's case and ruling reserved at the end of the
hearing. The Trial Examiner denied the motion in his Intermediate
Report. At the close of the hearing the, Trial Examiner granted the
Board's motion to conform the pleadings to the proof. During the
course of the hearing the Trial Examiner ruled on other 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.
The Trial Examiner thereafter filed his Intermediate Report, dated
May 14, 1941, copies of which were duly served upon the parties. 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 from its unfair labor practices and
take appropriate affirmative action. Thereafter the respondent filed
exceptions to the Intermediate Report and a brief in support of its
exceptions. No oral argument was requested.
The Board has considered the exceptions to the Intermediate Report
and the brief in support thereof, and save as the exceptions are con-
--istent 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 4
I. THE BUSINESS OF THE RESPONDENT
Tyne Co. is, a corporation existing under and by virtue of the
laws of the State of Illinois, having its principal office and place
of business in Chicago, Illinois, where it now is, and at all times
hereinafter mentioned has been engaged in the wholesale plumbing
supply business.
During the year 1940 the respondent purchased materials valued
at approximately $500,000, of which approximately 50 per cent were
shipped from points outside the State of Illinois to its plant in
ties of the respondent should be and are for the purpose of furthering the Defense Program
of the United States of America and that by its conduct and misrepresentations the Union
is causing an obstruction of the natural flow of commerce between the States ; that if the
Union is permitted to organize the respondent's employees it will harass and create turmoil
in the ranks of the respondent's employees ; and that the Union does not represent a
majority of the employees of the respondent.
Unless otherwise noted, the findings herein are based on uncontradicted testimony.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chicago. During the same year the respondent sold and distributed
products valued at approximately $750,000, of which approximately
25 per cent were shipped from its plant in Chicago to points outside
the State of Illinois.
II. THE ORGANIZATION INVOLVED '
Steam Fitters' Protective Association Local No. 597 , of the United
Association of Plumbers and Steamfitters of the United States and
Canada, affiliated with the American Federation of Labor , is a labor
organization , admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In July 1940, Joseph E. Knaffle, the representative 'of the Union,
commenced the organization of the respondent 's employees. He
stationed himself in front of the respondent 's plant and there talked
to the employees as they left the plant. Between July and December
of that year , Knaffle made 25 to 30 trips to the plant for that pur-
pose. Late in July while he was so engaged, John Tyne, Sr., the
respondent 's president , approached Knaffie and told him that the
Company was already organized and that "it belongs to Nitti, if
you don't get out of here, I will send Nitti after you .", Knaffie
testified that Nitti is a gangster. Further, Tyne, Sr., called Knaffle
a Communist and questioned him regarding his citizenship. In
August while Knaffle was talking to one of the respondent's em-
ployees, he was approached, by Tyne, Sr., and John Tyne, Jr., the
respondent 's vice president. Tyne, Sr., demanded to know what
Knaffle was doing. When Knaffle replied that he was trying to
organize the employees Tyne, Sr., admonished him "Why don't you
go on your way? Those boys don't want any organization."
During the same month Tyne, Jr., told Michael Sullivan and some
of his fellow employees while they were at work : "See that guy that
is out there trying to organize the Union ? He is a Communist Jew,
it is lucky he got out of here, because the F. B. I. would be after
him. He just left in time - before the F. B. I. would get him." In
September 1940, Tyne, Jr., told John Kent, an employee, that
Knaffle was wanted by the "G-men" and that once the "G -men" had
missed Knaffle by 2 minutes. About the same time Tyne, Jr., told
Michael Heneghan , an employee , that "he -didn't see any reason why
the men should join a union , that the boss had things figured out
pretty good , he was figuring on an annual living wage , of $1500.00
a year." During the period of Knaflle's efforts T. J. McManus, the
TYNE COMPANY 67
respondent's night-foreman, told Charles Speta, an employee, that
"If you ever join the union, the company would sooner close down,
it would be forced to."
In October 1940, Sullivan and others were engaged in unloading
pipe from a trailer. Sullivan went to a gasoline can to wash. his
hands. Tyne, Sr., who was standing nearby, addressed Sullivan
and said, referring to Knaffie, "See that man out there? He has a
nice white shirt and tie on. Why don't you dirty them up for him?"
On or about December 20, 24 of the respondent's employees signed
a sheet of brown wrapping paper, indicating their desire and inten-
tion to join the Union. The paper, which contained nothing but
their names and addresses, was passed from hand to hand as the
.men were eating lunch in the plant.
On the following day several of the employees who signed the
union petition were called to the respondent's office and questioned
by the Tynes regarding the Union and the petition. Eugene Ries-
terer was told by Tyne, Sr., "I ain't having any objections against
your joining a union, but you know what will happen when you get
in that union. You will go on twenty-four hours a week." At the
time, the plant was operating well above 50 hours per week. He
also asked Riesterer if Frank Borowczyk was one of the leaders in
the Union. Peter Duffy was also asked what Borowczyk had done
with the petition. Duffy testified, without contradiction, that Tyne,
Jr., told him, "If you boys want to join the union, the C. I. 0
would be a better union, because he did most of his dealings with
the C. I. 0.," and asked-Duffy, "Why don't you join a Catholic
organization?" Michael Heneghan, who also signed the union peti-
tion, was asked by Tyne, Jr., if he did not know that the Union
"had been gunning for the Tyne Company for years," and "if the
men wanted an organization, why didn't they join the C. I. 0., or
some Catholic organization seeing that most of them were Catholics."
On the evening of December 23 while at work, McManus, night
foreman, asked employee James O'Reilly and other employees if they
had signed the union petition. Those employees denied having
signed the petition. McManus then told them , that he had been
talking to Tyne, Jr., and that Tyne, Jr., had said that "anybody
that has signed it, it wouldn't be any good- for them." McManus
-then told them that "if he lost his job over it, he would hit the first
guy over the head with a lump of pipe that he would get hold of."
McManus also told the employees that two or three of the signers
of the union petition had been laid off already and that "if the
union would go through and they would organize the shop, that
.they would quit working altogether and close . . . " On or about
December 24, while at work, Charles Speta was asked by Super-
451270-42 -vo1 35-6
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intendent Fogarty if he had signed the union petition. Fogarty
wanted to know where he had obtained the petition and what was
done with it after Speta had signed.
The day following the signing of the union petition, Edmond
McElligott, a maintenance employee, and four or five of his fellow
employees drafted a petition addressed "To the Chairman of the
National Labor Relations Board of the 13th Region of the United
States of America," in the office of the respondent during working
hours. In that work they were assisted by John Tyne, Jr., and were-
given the help of one of the respondent's stenographers who typed
the petition that had been drawn. The petition stated in part as
follows :
We the undersigned employees of Tyne Oo., an Illinois Cor-
poration, operating under the laws of the State of Illinois and
of the United States of. America, hereunder assign our names
and petition you to order the Steam Fitters Protective. Associa-
tion of Chicago Cook County and vicinity, whose offices are
located at 408 South Leavitt Street in the City of Chicago, its
officers, its organizers or its employees, to desist from molesting
the undersigned in an endeavor to have the undersigned become
paying members of this association for the following reasons. -
1st: We would not want this union or association as our bar-
gaining agent because we understand they recognize seniority
over ability and demand that employees be secure from them.
In our company employees are compensated by ability rather
than by services which enables a younger man to work himself
up to the sales department or a better position. If we were to
select the above association as our bargaining agent we would
lose this right.
7th: Furthermore many of us are receiving more benefits than
under a contract made by the -Steam Fitters Protective Associa-
tion and the Tyne Co. in our behalf.
We therefore ask you to heed our request and await your
further instructions.
EMPLOYEES' COMMITTEE OF TYNE CO.
This petition was circulated by McElligott and signed by 75 em-
ployees, including Superintendent Fogarty and Night Foreman Mc-
Manus. The petition was circulated in the plant during working
hours during the week of December 28, 1940. McElligott was as-
sisted in circulating the petition by Tyne, Jr., Fogarty, McManus,
John W. Doolin, one of the respondent's salesmen, and others.
While Joseph Puike was at work on the night of December 23 his
TYNE COMPANY 69
foreman , McManus, called him and a coworker to McManus' bench
and gave them the petition to read. Puike asked McManus if he
wanted them to sign the petition inasmuch as they already had
signed a union card. McManus told them, "Well, that is up to you."
After they did sign the petition McManus admonished them "that
the fellows that don't sign this will be let out gradually or some'way
or other." Doolin brought the petition to Riesterer and asked him
to sign it . Riesterer told Doolin that he had signed his name to the
union petition and that "six guys got fired on account of signing it.
I ain't signing -nothing else." Doolin thereupon told him "This is
a company union, and Mr. Tyne is behind it, and knows what is going
on." Thereupon, Superintendent Fogarty asked Riesterer to sign
the petition. Riesterer again refused and shortly thereafter he re-
ceived a letter stating that due to lack of work, his services were no
longer required. Doolin asked Martin Casey, an employee, to sign
the petition. Casey had made application to join the Union and
refused to sign it. He was later asked by one of the Tynes if he
had any objection to signing it and thereupon he did sign the petition.
Some days later he was in the office of the respondent and was re-
quested by Tyne, Jr., to write a letter resigning from the Union. He
was given a model letter to follow, was furnished paper by Tyne
and wrote a letter of resignation in duplicate, following the model
letter that had been given to him in the office of the respondent. He
sent a copy of the letter by registered mail to the Board's Regional
Office in Chicago. Employee James J. Loomis was told by Super-
intendent Fogarty that he could not belong to the Union and sign
the Company's petition at the same time. With the help of Fogarty,
he accordingly wrote a letter of resignation from the Union in dupli-
cate and gave Fogarty both copies.
John Tyne, Jr., testified that commencing in July 1940, several
of his employees sought his advice as to "how they could eliminate
the union from bothering them." Tyne, Jr.,.advised these employees
that "the Constitution gives you the right of petition to go to the
Government for any redress." In any event the petition was not
drafted and circulated in the plant until the week of December 28,
after the union petition had been signed by many of the respondent's
employees. It is apparent that the petition was the product of the
respondent and that its sole purpose was to thwart the act of its em-
ployees in exercising their rights to self-organization as guaranteed
them in Section 7 of the Act.
We find that in and after July 1940, the respondent- by its' officers
and agents interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act in the
following respects : the respondent by its officers and agents ques-
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tioned employees concerning their union membership and the signing
of a union petition; made disparaging statements concerning the Union
and union representatives; asked its employees to beat up the union
representative; threatened to close part of the plant and to lay off
employees in the event its employees joined or assisted the Union;
requested employees to resign from the Union ; caused to be circulated
among the employees in the plant during working hours a petition
in opposition to the Union; suggested to employees that they affiliate
with a labor organization other than the Union.
B. The discriminatory discharges
'To the allegation of the complaint that Michael Heneghan, Frank
Borowczyk, Peter Duffy, William Heneghan, John Kent, Patrick
Walsh, and Michael Sullivan were discriminatorily discharged, the
respondent in its answer made a general denial and affirmatively
alleged that : (1) the respondent has not refused to reemploy them;
(2) , that none of the seven employees made application for reem-
ployment; (3) that each of the seven is presently employed by com-
petitors of the respondent. Affirmative defenses to the individual
cases will be discussed below. The evidence is undenied that at the
time of the discharge of each of the seven complainants, each was
given a written lay-off slip stating, substantially, that the respondent
"would be unable to use your services until further notice." No
such notice has been forthcoming from the respondent. Each of the
complainants is presently employed.
1. Michael Heneghan
Heneghan was first employed by the respondent in September
1936, as a pipe handler at a wage of 45 cents an hour. Until the
date of his discharge on December 21, 1940, he had been employed
also as a foreman in charge of the pipe gang and as a stockman. He
had received regular pay raises and at the time of his discharge was
receiving a monthly wage of $125. About 2 weeks prior to his dis-
charge he had been put back on his job as pipe handler- because of an
alleged shortage of work in the stockroom. During the period of
his employment he had suffered no lay-offs. On December 20, he
signed the union petition. On December 21 he was given his lay-off
slip by Superintendent Fogarty. He immediately asked Fogarty
why he was being laid off. Fogarty said, "I guess it is because of
what happened yesterday." It is undenied that the event of the
previous day was the signing of the union petition. Heneghan then
went to Tyne, Jr., and asked him why he was being laid off. Tyne,
Jr., answered him, "I told you yesterday morning that if you signed
TYNE COMPANY 71
up for the union , we would have to lay somebody off, when L,jus
got slow we would have to lay somebody off." On occasi^ôns of prior
lay-offs the unmarried employees were the first to go arid thereafter
the work was divided. It is undenied that on December 21, "the
company had too much work." -
On December 23 Heneghan returned to the office of the respondent
for the correction of his pay check. He saw John Tyne, Jr., who
asked him who had started the signing of the Union 's petition. Tyne,
Jr., told Heneghan that if the latter would give him this information
Heneghan would be reinstated to his job. '
- The. respondent alleged - in its answer ' that Heneghan was inefficient,
refused to accept orders from superiors,' appropriated wood owned
by the respondent , made unauthorized personal phone calls and, when
warned by the watchman to discontinue this practice , threatened
bodily harm to the watchman , and smoked cigarettes in portions of
the plant which were combustible, and that the respondent was
attempting to get Government defense orders and that in checking
its employees, citizenship status, Heneghan was unable to prove legal
entry into the United States.
Heneghan testified without contradiction , that he was not inefficient
and that no such charge had been called to his attention at any
time. With reference to the allegation that he refused to accept
orders from superiors , Heneghan admitted that at the time he
was transferred from the stockroom to the handling of pipe some 2
weeks prior to his discharge , he appealed to Tyne, Jr., for verification
of the transfer . Such action had been the practice prior to December
21: He was given permission , by Tyne, Jr., to take the wood. He
admitted having made some phone calls some 2 years prior to his
discharge but denied that he had ever threatened the watchman with
bodily harm . Heneghan admitted that he smoked cigarettes in the
plant but denied that he had smoked cigarettes in parts of the plant
which were combustible . Other employees did the same , including
McManus and Fogarty. He denied that he had ever been questioned
with respect to his entry into the United States and testified that
he had been a citizen of the United States for 4 years.
In view of all of the testimony , we do not believe that any of the
matters alleged against Michael Heneghan contributed to his dis-
charge. We find, as did the Trial Examiner , that Fogarty expressed
the true reason therefor when he told Heneghan "I guess it is be-
cause of what happened yesterday ," which was the signing of the
union petition. I
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Peter Duffy
Duffy commenced his employment with the respondent in July
1935, as a pipe threader, at a wage of 40 cents per hour. He received
pay raises in 1936 and 1937 and at the time of his discharge he was
earning 50 cents per hour. On December 21, the day after he signed
the union petition, he was called to the respondent's office and there
questioned by Tyne, Jr., as to the union petition and the-signers
thereof. Tyne, Jr., asked Duffy if he had signed the petition and
whose name appeared above his, and the whereabouts of a union meet-
ing that was to be held the following Monday night.
Shortly thereafter Duffy was given his lay-off slip. After his lay-
off he was told by Tyne, Jr., that if he could bring the union petition
to him, Tyne, Jr., would see what he could do about getting his
job back for him.
The respondent asserted in its answer that Duffy was inefficient,
his work substandard and that after warnings, Duffy refused to
stay at his post. Duffy testified without contradiction that each of
the charges raised by the answer was untrue. We find, as did the
Trial Examiner, that the discharge of Duffy was part of the respond-
ent's plan to rid the plant of the Union at its inception.
3. Frank Borowczyk
Borowczyk was employed by the respondent early in 1936, as a
pipe cutter and threader, at 45 cents per hour. In 1939, he received
a pay raise of 5 cents per hour. He was laid off in 1938, and rehired
again in 1939. Borowczyk signed the union petition on December
20 and on December 21 he was given his lay-off slip. At that time
he asked Superintendent Fogarty and Tyne, Sr., why he was being
laid off. Neither of his superiors gave him any reason. As re-
lated above, Riesterer was asked if Borowczyk was a leader of the
Union. Duffy had also been asked by Tyne what Borowczyk had
done with the petition.
The respondent alleged in its answer that Borowczyk was inefficient
on several occasions, that within a few days of his discharge he was
found away from his working position talking and laughing with
fellow employees and that the quality of work produced by Boro-
wczyk was substandard. Borowczyk testified without contradiction
that he had never been criticized for his work and that he had never
engaged in any of the conduct as alleged in the answer. We find,
as did the Trial Examiner, that the true reason for Borowczyk's
discharge was his union activities.
TYNE COMPANY 73
4. William Heneghan
Heneghan was first employed by the respondent in October 1933.
His job'was carrying pipe and loading trucks and his pay rate
was 44 cents an hour. After 2 years of that work he was given
janitor's work and other miscellaneous jobs. He was then assigned
to the job of washing pipe, followed by a job of trucking and weigh-
ing stock. During the period of his employment he was given a
6-cent raise in wages. Heneghan signed the union petition on De-
cember 20. On the morning of December 21 he was questioned by
Tyne, Jr., in the presence of Superintendent Fogarty, regarding
the union petition. On Sunday, December 22, Heneghan and three
other employees canvassed the respondent's employees in their homes
relative to the signing of application cards for the Union. When he
returned to work on December 23, he found that his card was miss-
ing from the time-card rack. Shortly thereafter, Superintendent
Fogarty handed him his pay check and a lay-off slip.
The respondent alleged in its answer that Heneghan was ineffi-
cient, that he refused to obey orders of superiors, that he did not
perform his work satisfactorily, and that an investigation indi-
cated that Heneghan had come into this country illegally. Hene-
ghan testified without contradiction that he had never been charged
with inefficiency, that he had never refused to obey any orders of
his superiors, that his work was satisfactory, and that he had been
a citizen of the United States since 1932. We find, as did the Trial
Examiner, that William Heneghan was discharged on December 23,
1940, because he signed the union petition and further was active
in the affairs of the Union.
5. John Kent
Kent commenced his employment with the respondent in October
1932 as a machine operator, at an hourly wage rate -of 371/2 cents.
At the time of his discharge on December 23, his hourly rate was
55 cents, Kent signed the union petition on December 20 and on the
morning of the 21st, he was questioned about the petition by Tyne,
Sr., in the presence of Tyne, Jr., and Superintendent Fogarty.
Tyne, Jr., asked Kent if he had signed the union petition. Although
at first he denied having done so, he later told Tyne, Jr., that he
had. Tyne, Jr., then told Kent that "this union you are joining
is nothing but a racket." On December 22, Kent with other em-
ployees, canvassed the employees of the respondent and solicited
their membership in the Union. When he reported for work on
December 23 he found that his card was not in the time-card' rack.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A few moments later Superintendent Fogarty gave him his check
and lay-off slip.
The respondent contended in its answer that Kent was inefficient
and permitted work to go out which necessitated replacement and
caused expense to the Company which could have been avoided if
Kent had performed his work correctly. Kent admitted that "a
couple of months before I was laid off" he and Joe Penzell, a fellow
employee, had cut some pipe too short. The only admonition he
received for that mistake was that his foreman told him that he
would have to cut the pipe over again, which he did. Kent also'
admitted that there had been some trouble over some work that he
had performed on some 2-inch bends. He testified that about a
month before his discharge he had called Tyne, Jr.'s, attention to
the fact that the bends had been improperly fabricated and that in
spite of the warning that he gave Tyne,,Jr., he was advised by
Tyne, Jr., to go ahead and work on the bends and that no one had
said anything to him about the work since the job was completed.
Kent was not laid off or discharged for either of the above inci-
dents. Instead the respondent waited until Kent signed the union
petition to discharge him, using his alleged inefficiencies as a pre-
text, to justify his discharge for union activities. We find, as did
the Trial Examiner, that the respondent discharged Kent on Decem-_
ber 23, 1940, for the reason that he signed the union petition and
was otherwise active in the affairs of the Union.
6. Patrick Walsh
Walsh's employment with the respondent commenced in October
1933. He was employed as a threading-machine operator at an
hourly rate of 38 cents. During the period of his employment he
received pay raises to 55 cents an hour. Walsh signed the union
petition on December 20 and signed an application for membership
on December 22. When he reported for work on December 23, -he
found that his card was not in the time-card rack. Shortly there-
after, Superintendent Fogarty gave him his pay check and a lay-off
slip stating that because of "increasing taxation and lack of work,"
his services were r1o longer required until further notice.
The respondent alleged in its answer that Walsh was inefficient,
that his production was not up to standard , that the quality of
his work was poor , and that on investigation it was found that
although Walsh had been in this country for some years, he had
not applied for citizenship . Walsh denied that he had ever been
accused of inefficiency, that his production was not up to standard,
or that the quality of his work was poor. He admitted that he
was not a citizen of the United States but denied that he had ever
TYNE COMPANY 75
been questioned about the fact. We find, as did the Trial Examiner,
that Walsh was discharged on December 23, 1940, because he signed
the union petition and applied for membership in the Union.
7. Michael Sullivan
Sullivan was employed by the "respondent on October 17, 1939, as
a pipe carrier, at a wage rate of 45 cents an hour. In 1940 he re-
ceived a raise in wages to 50 cents per hour. He signed the union
petition "around December." The following day he was called to
the respondent's office and was there questioned about the petition
by Tyne, Jr., in the presence of Superintendent Fogarty and Tyne,
Sr. As related above, Sullivan had been asked by Tyne, Sr., to
dirty the "nice white shirt and tie" KnafHe was wearing. During
the week of December 28, Sullivan refused to sign the anti-union
petition on two occasions, once at the request of Doolin and again
at the request of Fogarty. He gave as his reason that he had already
signed up for the Union. On January 2, 1941, Sullivan received a
letter from the respondent to the effect that "Due to lack of work
we regret it will be necessary to lay you off until further notice."
The respondent asserted in its answer that Sullivan was discharged
for not reporting for work and that upon investigation it was found
that he was at home recovering from alcoholic intoxication, and
furthermore that Sullivan had been warned of his continuing ab-
sences because of the above reasons, but that he continued to take
days off thus disrupting production. Sullivan denied the allega-
tions and testified that no one connected with the respondent had
ever complained about his drinking. He admitted that he did take
a glass of beer once in a while. He further testified that during
1940 he had been absent 7 or 8 days, 5 of which were occasioned
by an accident that occurred in' the plant. We find, as did the
Trial Examiner, that Sullivan was discharged on January 2, 1941,
because he had signed the union petition and on two occasions had
refused to sign the anti-union petition.
Upon the entire record, we find that the respondent, by discharg-
ing Michael Heneghan, Frank Borowczyk, and Peter Duffy on De-
cember 21, 1940, and by discharging William Heneghan, John Kent,
and Patrick Walsh on December 23, 1940, and by discharging Mi-
chael Sullivan on January 2, 1941, and by failing to reinstate them
after the respective dates of their discharges, discriminated with
respect to their hire and tenure of employment, thereby discourag-
ing membership in a labor organization, and that the respondent
thereby and by its other aforesaid conduct interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed.
them by Secfion 7 of the Act.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III,
above, occurring in connection with its operations described in Sec-
tion 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 will order it to cease and desist therefrom and to take
certain affirmative action which we find necessary to effectuate the
policies of the Act.
We have found that the respondent discriminated in regard to the
hire and tenure of employment of Michael Heneghan, Frank
Borowczyk, Peter Duffy, William Heneghan, John Kent, Patrick
Walsh, and Michael Sullivan.
The Trial Examiner found that the above-named employees are
presently employed in jobs substantially equivalent to the jobs they
held with the respondent. Upon examining the evidence, however,
we find that the Trial Examiner erred. Each of the seven men de-
sires reinstatement. Although all are receiving hourly rates of pay
as high as or higher than those paid them by the respondent, each
earns less money per week because there is no opportunity for as much
overtime work as he ordinarily performed in the respondent's em-
ploy. In their present jobs the seven employees do not have the
benefits of seniority which they had earned in the respondent's plant.
Peter Duffy testified that his present status is that of a temporary
employee and that he is engaged in a different type of work. Michael
Sullivan and Patrick Walsh must go a much greater distance to work
each day, thus necessitating the payment of carfare and the ex-
penditure of much more time going to work and returning home. All
these facts, inter alia, establish, and we find, that the seven above-
named employees have not obtained substantially equivalent employ-
ment since their discharge by the respondent. But even if substan-
tially equivalent employment had been obtained, we would order re-
instatement in this case, since a reinstatement order is necessary to
remedy the unfair labor practices found herein and thereby to ef-
fectuate the policies of the Act.e Accordingly, we will order that the
respondent offer Michael Heneghan, Frank Borowczyk, Peter Duffy,
William Heneghan, John Kent, Patrick Walsh, and Michael Sulli-
van immediate and full reinstatement to the positions held by them
5 Matter o f Ford Motor Company and Int'l Union , etc, 31 N. L R. B. 994.
TYNE COMPANY 77
at the time of their discharge, or, if these positions are not available,
to substantially equivalent positions, displacing, if necessary, em-
ployees hired since their discharge. We will further order that the
respondent make whole Michael Heneghan,, Frank Borowczyk, Peter
Duffy, William Heneghan, John Kent, Patrick Walsh, and Michael
Sullivan for any loss of pay they may have suffered by reason of the
discrimination against them by payment to each of them a sum of
money equal to the amount which each normally would have earned
as wages from the date of the discrimination to the offer of reinstate-
ment less his net earnings,6 during said period.
Upon the foregoing findings of fact and upon the entire record in
the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Steam Fitters' Protective Association Local No. 597, of the
United Association of Plumbers and Steamfitters of the United
States and Canada, affiliated with the American Federation of Labor,
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 Michael Heneghan, Frank Borowczyk, Peter Duffy, William
Heneghan, John Kent, Patrick Walsh, and Michael Sullivan and
thereby discouraging membership in Steam Fitters' Protective Associ-
ation Local No. 597, of the United Association of Plumbers and
Steamfitters of the United States and Canada, affiliated with the
American Federation of Labor, the respondent has engaged in and
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.
6 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 his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer-
ica, 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
shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Steam Fitters' Protective Associ-
ation Local No. 597, of the United Association of Plumbers and
Steamfitters of the United States and Canada, affiliated with the
American Federation of Labor, or any other labor organization of
its employees, by discriminating in regard to the hire and tenure of
employment or any term or condition of employment of its
employees ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing and to engage in 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 Michael Heneghan, Frank Borowczyk, Peter Duffy,
William Heneghan, John Kent, Patrick Walsh, and Michael Sullivan
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other
rights and privileges ;
(b) Make whole Michael Heneghan, Frank Borowczyk, Peter
Duffy, William Heneghan, John Kent, Patrick Walsh, and Michael
Sullivan for any loss of pay they may have suffered by reason of the
respondent's discrimination by payment to each of them of a sum of
money equal to that which he normally would have earned as wages
from the date of the respondent's discrimination to the date of the
offer of reinstatement, less his net earnings during this period;
(c) Post immediately in conspicuous places throughout its plant
at Chicago, Illinois, and maintain for a period of at least sixty (60)
consecutive days from the date of the posting, notices to its employees
stating that the respondent will not engage in the conduct from which
it has been ordered to cease and desist in paragraphs 1 (a) and (b)
of this Order, that it will take. the affirmative action set forth in
paragraphs 2 (a) and (b) of this Order, that the respondent's em-
ployees are free to become or remain members of Steam Fitters' Pro-
tective Association Local No. 597, of the United Association of
TYNE COMPANY 79
Plumbers and Steamfitters of the United States and Canada, affiliated
with the American Federation of Labor, and that the respondent
will not discriminate against any employee because of membership
or activity in that organization;
(d) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.