Marlin-Rockwell Corp.

In the Matter of MARLIN-ROCKWELL CORPORATION and HERBERT S. ANDERSON Case No. C-1915.-Decided March 6, 1942 Jurisdiction : ball bearings manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion" anti-union statements; threatening employee with discharge for attempting to secure the reinstatement of union members. Discrimination: refusal to reinstate, laid-off employees because of their union membership and activity; charges of, dismissed as to several persons. Testifying Under Act: refusal to reinstate laid-off employee because he testified at prior Board hearing. Remedial Orders: reinstatement ordered; back-pay awarded from the dates when, following lay-offs, the number of employees in given departments first reached a figure substantially in excess of the number of employees remaining immediately after the lay-offs. Evidence : ruling of Trial Examiner overruling employer's objection to introduc- tion of evidence with respect to events occurring prior to previous Board hear- ings in which the employer and union participated and in which there were allegations of discrimination with respect to some of the persons on whose , behalf charges were filed in instant case, sustained, since issues in instant case are different from those in the two preceding cases. Mr. Edward D., Flaherty, for the Board. Messrs. O'Brian, Hellings, Ulsh cf; Morey, by Mr. Dana B. Hellings and Mr. John Van Sickle, of Buffalo, N. Y., for the respondent. Mt. Daniel B. Shortal, of Buffalo, N. Y., and Mr. Herbert S. Ander- of Jamestown, N. Y., for Herbert S. Anderson. Mr. Daniel J. Harrington, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Herbert S. Anderson, the National Labor Relations Board, herein called the Board, by the Regional Director for the Third Region (Buffalo, New York), issued its complaint, dated January 28, 1941, against Marlin- Rockwell Corporation, Jamestown, New York, herein called the respondent, alleging that the respondent had engaged in and was 39 N. L. R. B., No. 90. 501 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3),'and (4) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing thereon, were duly served upon the respondent, Herbert S. Anderson, United Automobile Workers of America, affiliated with the Congress of Industrial Organizations, and United Automobile Workers of Amer- ica, affiliated with the American Federation'of Labor. With respect to the unfair labor practices, the complaint alleged in substance that the respondent (1) on various dates between October 1937 and June 1938 terminated the employment of 25 named em- ployees and at all times thereafter refused to reinstate or reemploy them because they had joined and assisted International Union, United Automobile Workers of America, Local No. 338, herein called the Union, and had engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection; (2) on or about January 10, 1938, terminated the employment of and at all times thereafter refused to reinstate or reemploy Harold Moller because he gave testimony under the Act in a prior hearing and joined and assisted the Union and engaged in concerted activities; and (3) since on or about September 1, 1938, by the above acts, by informing employees who had applied for reemployment and reinstatement that they never should have joined the Union, and by expressing antago- nistic and derogatory remarks concerning the Union and officers of the Union, discouraged concerted activities of its employees for the purpose of collective bargaining and other mutual aid and protection and membership of employees in and affiliation with the Union, 'thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. On February 12, and on March 7, 1941, respectively, the respondent filed an answer and an amended answer- to the complaint. In its amended answer the respondent denied that it had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held in Jamestown, New York, from March 10 to March 19, 1941, before J. J. Fitzpatrick, the Trial Examiner duly designated by the Chief Trial Examiner. 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 evidence bearing on the issues was afforded all parties. At the beginning of the hearing and also at the close of the Board's case, the respondent moved to_ dismiss the com- plaint on the ground that Herbert S. Anderson was not authorized, directly or indirectly, by the Union to file the charge herein. The MARLIN-ROCKWELL CORPORATION 503 Trial Examiner denied the motion and his ruling is hereby affirmed.' During the hearing the respondent objected to the introduction of evidence with respect to events which occurred prior to July 2, 1937, and August 1938, the dates of previous Board hearings in which the respondent and the Union participated and in which there were allega- tions of discrimination with respect to some of the persons on whose behalf charges have been filed in the instant case. The Trial Examiner overruled the objections. We hereby affirm the ruling of the Trial Examiner, since the issues in the instant case are different from those in the two preceding cases. At the close of the Board's case, the respondent moved to dismiss the complaint with respect to Earl Bliss, Helen Erickson (Theobald), Harry W. Rapp, Herbert Tolson, and Joe B. Wilson. The Trial Examiner granted the motion. Counsel for the Board moved to conform the pleadings to the proof in formal matters, which motion was granted by the Trial Examiner without objection. At the close of the hearing, the respondent moved to dis- miss the complaint in its entirety. The Trial Examiner denied the motion. During the hearing the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On June 18, 1941, the Trial Examiner issued his Intermediate Report, copies of which were duly -served upon the respondent and Herbert S. Anderson. He found that the respondent had discriminated in regard to the hire and tenure of employment of 14 of the employees named in the complaint and had engaged in and was engaging in other unfair labor practices affecting commerce, within the meaning of Section 8 (1), (3), and (4) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and take certain affirmative action to remedy the unfair labor practices. He further recommended that the complaint be dismissed insofar as it alleged that the respondent discriminated in regard to the hire and tenure of employment of the remaining employees named therein. On July 31 and October 7, 1941, respectively, the respondent and Herbert S. Anderson filed exceptions to the Intermediate Report. The respond-,' ent filed briefs on August 20 and December 29, 1941. Pursuant to notice, a hearingowas held before the Board on December 2, 1941, in Washington, D. C., for the purpose of oral argument. The respondent and Herbert S. Anderson were represented by counsel and participated in the hearing. The Board has considered the exceptions and the briefs filed and finds the exceptions without merit I Matter of Wilson & Co , Inc and Local Union No 25, United Packinghouse Workers of America of PA'OC, affiliated with C I. 0 , 31 N L R. B , 440, of Consumers Power Company , v. National Labor Relations Board, 113 F. (2d) 38 (C C. A 6); National Labor Relations Board v Pennsylvania Greyhound Lines, Inc., cf. at., 303 U S . 261, reversing 91 F (2d) 178 (C C A. 3), and enforcing as modified 1 N. L. R B. 1. ' 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insofar as they are inconsistent with the findings, conclusions, 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 Marlin-Rockwell Corporation, a Delaware corporation having its principal place of business in Jamestown, New York, has plants located in Jamestown, New York, and Plainville, Connecticut. The re- spondent is engaged in the Jamestown plant, the only plant involved in this proceeding, in the manufacture and sale of ball bearings. Dur- ing 1940 approximately $1,500,000 worth of raw materials, consisting chiefly of steel tube, bar stock, forgings, strip steel, steel balls, and ball stock were delivered to the Jamestown plant, 90 percent of which were shipped from places outside the State of New York. During the same year bearings valued in excess of $4,000,000 were manu- factured at the plant., Approximately 75 percent of such products were shipped to points outside the State of New York. II. THE ORGANIZATION INVOLVED International* Union, United Automobile Workers of America, Local No. 338, is a labor organization admitting to membership em- ployees of the respondent? III. THE UNFAIR LABOR PRACTICES A. Background The Union first became active in the Jamestown plant in the spring, of 1937. At that time leaflets were distributed in front of the plant among the respondent's employees announcing an organizational meeting at a local hotel within a day or two thereafter. At this meeting which was held in the early part of April, the Union was organized and a week or two later officers were elected. Within a few days after the hotel meeting, the respondent laid off 23 employees and the Union filed charges with the Board against the respondent alleging violation of the Act. Thereafter, the Board issued a com- plaint alleging, among other things, the discriminatory discharge or lay-off of 23 of the respondent's Jamestown plant,employees. At the hearing on said complaint, on July 2, 1937, the Board, the respondent, and the Union entered into a stipulation, by which the respondent, ' Early in 1938 the membership of Local 338 split into two groups , one of which became affiliated with the "American Federation of Labor and the other with the Congress of Industrial Organizations . There is no showing in the record which organization the Union is affiliated with nor is the matter material to the issues in the present.case. MARLIN-ROCKWELL CORPORATION 505 without admitting the commission of unfair labor practices, agreed to reinstate all the discharged employees listed in the complaint with a certain amount of back pay to each, and the hearing was concluded. Pursuant to the stipulation, the respondent reinstated the 23 employees with back pay.' On June 10, 1938, pursuant to a petition filed by the Union and an election held by the Board, the Board certified the Union as the ex- clusive bargaining representative of the respondent's employees at the Jamestown plant, excluding clerical and certain other employees , .4 Thereafter, on charges filed by the Union, the Board issued its com- plaint dated August 10, 1938, alleging among other things, that the respondent laid off 10 of its employees in the winter of 1937-38 and refused to reemploy them because of their union membership and activity. After a hearing before, a Trial Examiner in August 1938, the Board on January 19, 1940, issued its Decision and Order. The Board found that the respondent had discriminated in regard to the hire and tenure of employment of two of the employees named in said complaint and ordered their reinstatement with back pay. The Board dismissed the complaint as to the other eight.5 B. Interference, restraint, and coercion The complaint alleged that since on or about September 1, 1938, the respondent has discouraged concerted activities of its employees by (a) informing employees who had made application for reemploy- ment and reinstatement that they never should have joined the Union; and (b) expressing to employees antagonistic and derogatory remarks concerning the Union and officers of the Union. Frances Stead, a union member who had been laid off on December 29, 1937, and whose lay-off was found not to be discriminatory in the complaint case in August 1938, testified that, when she applied for reinstatement to Stanley W. Brandel, superintendent of the James- town plant, in the fall of 1938, the latter replied that he did not know whether she was "for the Company or against the Company." Although Brandel denied making this statement, the Trial Examiner rejected such denial. We find that he made the statement attributed 's Carl K Corson, Charles G. Nelson, Lewis Alm, Harold Moller, Mabel Nordstrand , and Elmer Meleen, included in the present complaint , were reinstated under this stipulation and received back, pay. Nelson appears in the 1937 complaint as Gunnar Nelson and Corson as Carl K. Carson. Their correct names are Charles G. Nelson and Carl K. Corson. 4 ,Matter of Marlin-Rockwell Corporation and Local No 338, United Automobile Workers of America, 5 N L. R. B. 206 and 7 N. L. R. B. 836 6 Matter of Marlin-Rockwell Corporation and International Lnion, United Automobile Workers of America, Local 338, 19 N. L. R. B. 648, enforced as modified on other points in Marltn-Rockwell Corporation v National Labor Relations Board, 116 F. (2d) 586 (C. C. A. 2), cert. den. 313 U. S. 594. Charles G. Nelson, Elmer E. Meleen, Harry W Rapp, and Frances Stead, involved in the instant proceeding, were among those found by the Board not to have been discriminatorily laid off. Nelson's first name appears 'in the 1938 case as Gimnard and Meleen's last name is therein spelled Melene . The record is clear that they are the same individuals who are correctly named in the instant proceeding as Charles G. Nelson and Elmer E. Meleen. 1 506 DECISIONS,, OF- NATIONAL LABORS RELATIONS BOARD to him by Stead. Bernard H. Abrahamson, a union member who had been laid off by the respondent on January 7, 1938; testified that, when he went to the home of Louis Leonhart, assistant superintendent, about January- 1939 to ascertain the cause of his long lay-off,, Leon- hart agreed to attempt to secure his reinstatement and said "God ,damn you Benny, you had no business joining that Union . . ." Leonhart denied generally that he ever talked with the employees about the Union or that he ever promised Abrahamson employment. The Trial Examiner did not credit his denial in view of the anti- union attitude of the respondent and its supervisors as shown by the record. We find that Leonhart made the statement as testified to by Abrahamson. Howard R. Clemons, a colored employee, testified that in June or July 1940, Emil Blodine, assistant foreman of his department, asked him if he knew of any polishers who were available for, employment; that he suggested Manley Jefferson, trustee and chief plant steward of the Union, and Henry O. Warmack, a union member, both of whom had been laid off by the respondent; and that Blodine replied that he could not use them. Clemons further testi- fied that on the same day Carl Kruetz, foreman of his department, inquired 'of him about polishers, that he again mentioned Jefferson and Warmack, and that Kruetz told him to "forget about those two men because they may cause you to lose your job, too, bringing their names up in here like that." Kruetz denied that he had talked to Clemons about either Jefferson or Warmack, but admitted that at times he consulted Clemons about prospective colored employees. Blodine did not testify. The Trial Examiner found, and we agree, that both Kruetz and Blodine' made the above statements. We further find that Blodine, by his foregoing statement to Clemons, meant that the respondelt would not reinstate Jefferson and Warmack because of their union membership and that Kruetz warned Clemons of possible discharge for attempting to secure the reinstatement of union members. Herbert S. Anderson, secretary-treasurer of the Union,' testified without contradiction that in September 1940 he met Blodine in a taproom in Jamestown and inquired if the latter thought that Jefferson would ever be recalled to work, that Blodine replied "Herb, you know that he don't stand any more chance getting back down there than you do," and that, when he asked for the reason, Blodine responded "You ought to know." On the entire record we find that Blodine in substance stated to Anderson that the respondent would not reinstate Jefferson because of his membership in the Union. 'Anderson was a former employee of the respondent. He was one of the claimants at the 1938 hearing. In that case the Board ordered him reinstated with back pay. Thereafter, Anderson apparently left the respondent's employ. ' MARLIN-ROCKWELL CORPORATION 507 We find that the respondent, by the foregoing threats and .state- ments of Superintendent Brandel, Assistant Superintendent Leonhart,' Foreman Kruetz, and Assistant Foreman Blodine, in connection with its other acts set forth herein, interfered with, restrained, and coerced, its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The refusals to reinstate Prior to September 1937, the respondent normally employed about 452 persons in the Jamestown plant. Because of a recession in business during the last quarter of 1937 and the first half of 1938, the number of employees. gradually dropped to 181 by June 30, 1938. Thereafter the number of employees gradually increased until • by October 31, 1939, more than the normal number were employed. The increase continued and by the end of the year 1940, there were more than 1,000 persons employed. Nevertheless, a number of employees who had-been laid off have not been reinstated. The complaint, as amended, alleges in substance that the respondent refused. to rein- state the individuals previously laid off and named therein, because they joined and assisted the Union. The respondent contends that laid-off employees, like new employ- ees, are required to make formal written application for employment and that it is not its practice to send for those who have not filed such applications unless they are exceptional or outstanding. The respondent's practice with respect to the reinstatement of employees laid off in 1937, including those involved in this proceeding, has been considered by both the Board and the United States`Circuit Court of Appeals for the Second Circuit. The Board found: The Company maintains a list of all men laid off so that they may be called back as needed. The usual policy of the Company is to reemploy those laid off as business conditions warrant.?,. The Circuit Court of Appeals considering the same question stated: In the case at bar the company had no contractual seniority obligations, but it did in fact expect to recall its former employees when work revived; such was its customary practice, although there was no obligation to rehire them.' The evidence adduced at the hearing in the instant case shows no material change in the respondent's practice. Foremen kept lists of laid-off employees and in considering such employees for reinstate- ment'consulted the lists and recommended to the superintendent the reinstatement of those who had rendered satisfactory service. The respondent reinstated these employees if they were available. Al- 7 See footnote 4, supra B See footnote 5, supra. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD though written applications were customary, they were not a pre- requisite to being reinstated nor were employees so advised. Foremen told many of the employees involved in this proceeding that the re- spondent would reinstate them when employment increased.. The respondent did not advise then otherwise and generally relied on the foremen's recommendations with respect to reinstatement. Moreover, the record discloses that many employees, whom we find below to have been discriminatorily refused reinstatement, applied for reinstatement in person and were given reasons other than their failure to submit written applications for the respondent's failure to reinstate them. At the hearing the respondent advanced reasons such as inefficiency, tardiness, and restriction of production as defenses. It is clear, therefore, that the respondent gave considera- tion to the reinstatement of these persons regardless of its, alleged reinstatement practice and that their failure to secure reinstatement was attributable to reasons other than such practice. For convenience, the various cases discussed below will be grouped according to department. 1. The shipping department Carl K. Corson was employed as a packer in the shipping depart- ment in 1935. He joined the Union in April 1937 at the hotel organi- zational meeting and within a week or two thereafter was elected trustee. He testified that about this time, after leaflets announcing a union meeting had been distributed, Superintendent Brandel told him that he did not "want to see me talking to the people passing out those leaflets," or "attending any meetings; if I did I could consider my job done." - While Brandel denied this testimony, the Trial Examiner did not credit his denial and found that he used the lan- guage as stated by Corson. We also credit Corson's testimony in this regard. Three days after this talk, the respondent laid Corson off but subsequently reinstated him with back pay under the stipula- tion entered into the following July.9 The respondent did not lay Corson off at any other time even during slack periods until November 13, 1937. At that time the respondent assigned lack of work as the reason for his lay-off. During the period of his employment he, with others in the shipping department, received four wage increases. After his lay-off he returned to the plant or telephoned to apply for reinstatement every month or two up to and including October 1939. Brandel advised him on each occasion that work was still slack and that the respondent would send for him when his' services were required. - See footnote 3, supra. Corson's foreman, Brown, admitted that Corson was laid off in ADri1 1937. on "orders from the office." MARLIN-ROCKWELL CORPORATION . 509 In October 1939, Corson applied for reinstatement to Brandel, who told him for the first time that he would not be reemployed be- cause of the "sloppy nature of his work and his unwillingness to co- operate." Corson's duties included the packing of boxes-or cartons of bearings and the placing of the name and address of the customer on the outside of each package. Brandel testified that Corson would work fast and "sloppily" to avoid working overtime and that he would improperly pack and address boxes. Kenneth Brown,•shipping clerk and his foreman, .testified that Corson packed boxes improperly and that on occasion he shipped wrong orders. The first instance cited happened in October 1935 on a rush order when Corson shipped the wrong-sized bearing. The only other instance occurred on August 29, 1936, when Corson again shipped the wrong-sized bearing to the same customer. Brown admitted that he expected occasional mis- takes in the shipping department and that they occurred. We find, as did the Trial Examiner, that the two errors cited, occurring 10 months apart and the most recent over a year prior to Corson's lay-off, appear too remote and not indicative of frequent carelessness by Corson. Brown asserted that the respondent instructed Corson to use a stencil- in addressing packages and that Corson, contrary to these instructions, "several" times used a pencil for such purpose. Corson testified, however, that about 1936, after a 2 months' trial period, the respondent abandoned the rule requiring the stenciling of all packages, and that thereafter it was the approved practice in the shipping de- partment to use a special marking pencil supplied by the respondent, instead of the stencil, on rush orders and orders for occasional cus- tomers.10 We credit Corson's testimony in this regard, as did the Trial Examiner. At the time of Corson's lay-off, there was one other employee in the shipping department doing the same type of work. At the time of the hearing, this department employed five employees doing this same type of work, four of whom were new employees who had not previ- ously been employed by the respondent. The respondent's records show that after the lay-off of Corson there were nine employees in the shipping department. This number was further reduced in the ensuing months, then increased to 10 about March 31, 1939, and to 27 by December 31, 1940, 16 of whom were new employees. We find, as did the Trial Examiner, that employment was available for Corson on March 31, 1939. In view of Corson's continuous employment even during slack periods, his four wage increases, the remoteness in time between the two cited errors and his lay-off, and the.fact that Brandel did not io Brown did not specify the times when Corson disobeyed his instructions with respect to using a stencil and there is no showing in the record that Corson used a marking pencil during the 2 months ' trial period. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mention his alleged carelessness as the reason for not reinstating him until October 1939, we find, as did the Trial Examiner, that he was a competent worker and that the alleged criticism of his work was not the respondent's reason for not reinstating him. Corson's union activity, Brandel's threatening anti-union statement to him, and the ,absence of a satisfactory showing why he was not reinstated while other old employees were reinstated and new employees were hired in his department, together with the respondent's expressed opposition to the Union as shown by the record, convince us, as they did the Trial Examiner, that the respondent did not reinstate him, because of his-union membership and activities. We find that the respondent, by refusing to reinstate Corson, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. The L. and S. turning department Charles A. Bosworth was laid off by the respondent on November- 22, 1937, and has never been reinstated. The respondent assigned lack of work as,the reason for the lay-off. He joined the Union in May 1937, attended union meetings, and wore his union button at- work thereafter. The respondent contends ^ and Bosworth's superiors testified that he was not recalled because of his slowness. The respondent's records show that at no time from the first of 1937 until his lay-off did Bos- worth earn more than his guaranteed minimum.11 We find, as did the Trial Examiner, that the respondent did not reinstate Bosworth for reasons other than his union membership or activity. The allega- tions of the complaint with respect to him will accordingly be dis- missed. John Ullberg was laid off on November 19, 1937, the reason assigned being lack of work. He has never been reinstated. Ullberg joined the Union in the summer of 1937 and thereafter wore his union button at work. The respondent contends and Ullberg's superiors testified that he was not reinstated because he was unreliable and tardy in reporting for work. The respondent's records show that from the week ending June 19, 1937, to the time of his release, Ullberg did not report on 10 different days and during this time was tardy from 15 minutes to 2 hours on 14 other days. The respondent's records also show that during the same period Ullberg made more than the guar- 11 Bosworth's work was on a piece-work basis, except that there was a guaranteed minimum called "day work," which each employee received without regard to whether or not he agtually earned that amount by piece-work count. The only other employee in this department whose work record was as unimpressive as that of Bosworth was one Haggmark , also a union member, who was laid off in December 1937 and has not been recalled. MARLIN-ROCKWELL CORPORATION 511 anteed minimum on only 2 days.12 We find, as did the Trial Ex- aminer, that the respondent did not reinstate Ullberg for reasons other than his union membership or activity. The allegations of the com- plaint'with respect to him will be dismissed. 3. The grinding department Charles G. Nelson was first employed by the respondent in 1926 and intermittently thereafter. His last period of continuous employment started on January 1, 1935. He joined the Union on April 6, 1937, was .discharged on April 8, but was reinstated in July of that year with back pay under, the stipulation of settlement. He was laid off on December 29, 1937. The respondent assigned lack of work as the reason for the lay-off.13 At that time he was grinding rings. Prior to the April 1937 lay-off, he set up machines for the operators in his department. Nelson was corresponding secretary of the Union and as such, prior to his last lay-off, had participated in a number of conferences with the respondent. In August 1938 he went to the plant to apply for work but was informed by the gateman at the plant entrance that the -respondent was not hiring anyone at that time. The respondent's records show that 30 additional employees were hired in the grinding department.in August 1938. In November 1940 Nelson applied for reinstatement to Brandel, who told him that the respondent did not need him.' , Brandel and William Johnson, Nelson's foreman, testified that he was not reinstated because he was frequently, tardy at work and often argued with his set-up man and inspectors. Nelson's weekly time cards would have shown his record as to tardiness, but the respondent did not produce them. This is in striking contrast with the respond- dent's ready production of such records in the case of Ullberg. John- son admitted that Nelson was an average worker and 'when Nelson was laid off the respondent assigned lack of work as the reason. It is also significant that at the 1938 hearing the respondent did not mention the shortcomings now attributed to Nelson. We find, as did the Trial Examiner, that the asserted tardiness and argumentative ways of Nelson are not the real reasons for his non-reinstatement by the respondent. Although Nelson's efficiency was admittedly average, instead of reinstating him the respondent hired 235 new employees in the grinding department.14 This fact, together with his union activity, his long 13 No others doing similar work in the turning department had such a poor record as Ullberg, except Bos- worth and Raggmark, previously referred to. 1 13 The Board found in its decision following the 1938'hearmg that Nelson was not discriminatorily laid off, and that he was less efficient than those retained in his department. (See footnote 5, supra.) 14 The respondent's records show that on December 31, 1937, there were 47 employees in the grinding department. On August 31,1938, the number there employed was 58, and it gradually increased thereafter, numbering 330 by December 31, 1940, of whom 235 were new employees We find, as did the Trial Exam- iner, that on August 31, 1938, employment was available for Nelson. 448105-42-vol. 39'34 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tenure of employment, the absence of a satisfactory showing why he was not reinstated, the respondent's general anti-union attitude, and the threats of Brandel to union members clearly show that the re- spondent discriminatorily denied reinstatement to Nelson. We find, as did the Trial Examiner, that the respondent did not reinstate Nelson because of his union membership and activities. By thus discriminating in regard to Nelson's hire and tenure of employment, the respondent discouraged membership in the Union and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Harold Moller was employed by the respondent from 1934 until December 29, 1937,15 when he was laid off, the respondent assigning lack of work as the reason. The complaint, as amended, alleges that the respondent refuses to reinstate him because he joined and assisted the Union and also because he testified at the 1938 bearing. Moller joined the Union in April 1937. The respondent laid him off in the same month, but reinstated him the following July with back pay pursuant to the aforementioned settlement agreement. In February 1937 O'Brien, his foreman, asked Moller, who was then em- ployed in the finish grinding department, whether he desired to be transferred to the precision grinding department. As this would have involved night work, Moller refused the offer. He testified as a witness for the Board at the 1938 hearing. Between the date of his lay-off and the spring of 1939 he applied at the plant for reinstate- ment approximately six times, applying personally to Brandel two or three of such times. He has never been reinstated. Moller testi- fied that in April 1939 he asked Brandel why he could not secure rein- statement and that Brandel told him that his work had been satis- factory, but that he had testified against the respondent at the 1938 hearing and had lied. According to Moller, Brandel then stated "I could never take you back until this- is all settled." Brandel denied that he had engaged in the above conversation with Moller. The Trial Examiner did not credit the denial and we find that Brandel made the statements attributed to him by Moller. The respondent contends that Moller was not reinstated because of his attitude and disposition. O'Brien testified that, beginning about the end of 1936, Moller became surly and disagreeable and argued constantly with the inspector and set-up man; that Moller would insist when the inspector failed to pass his work that it was the fault either of the inspector or the set-up mail and not his; that this happened frequently; and that invariably when the matter came to his'attention he found that the inspector was right and that Moller was wrong. Clayton G. Casler, the inspector, and Floyd G. Carpenter, the set-up man, corroborated this testimony. 15 The complaint alleged the termination date as January 10, 1938 It later was amended to show the correct date. MARLIN-ROCKWELL CORPORATION 513 The record does not sustain the respondent's contention, but, on the contrary, clearly shows that Moller was a satisfactory employee. That the respondent so regarded him is manifested by the fact thf;t in 1935 it assigned him more desirable work and in 1'937 offered him still more desirable work.18 From 1934 until his final release in 1937, the respondent laid Moller off five times and reinstated him four times, 17 and during the entire period of his employment his foreman never made any complaints about his work. At no time did the respondent ever advise Moller that his work was unsatisfactory or that his release was occasioned by anything other than slack busi- ness.18 As heretofore appears,19 there were 11 employees added to the grinding department between the time of Moller's lay-off and August 31, 1938. The number has increased continuously since. Many were new employees requiring from 2 to 4 weeks to break in. The Trial Examiner found, and we find, that employment in the grinding department was available for Moller on August 31, 1938. Taking into consideration Moller's union membership, the fact that he was a satisfactory employee, the unconvincing reasons ad- vanced for not reinstating him while a great number of new employees were added to his department, the respondent's expressed opposition to the Union, and Brandel's statements which he made when he refused to reinstate Moller in April 1939, we find, as did the Trial Examiner, that the criticism of Moller's disposition and attitude is only a pretext, and that the real reasons why the respondent did not reinstate him were because he joined and assisted the Union and testified as a witness at the prior Board hearing. We find that the respondent, by refusing to reinstate Moller, -discriminated in regard to his hire and tenure of employment, thereby discouraging member- ship in the Union, and that the respondent refused to reinstate Moller because he gave testimony under the Act. We further find that, by refusing to reinstate Moller, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. James A. Morgan was laid off on January 7, 1938, the reason assigned being lack of work. He has not been reinstated. He joined the Union in the fall of 1937, and attended some union meetings thereafter, but did not wear a union button at work. Charles A. Tyrrell and William Johnson, Morgan's foremen, denied knowledge 19 In 1935 the respondent placed Moller on finish grinding work which is easier and cleaner work than rough grinding, which he had been doing In 1937 Moller's foreman offered him a transfer to precision grind- ing work. Although this type of work did not entail an increase in wages it was cleaner work and the em- ployees considered it more desirable Moller did not accept this transfer solely because it would involve night work for an indefinite period until the respondent secured an additional machine. 17 There were three Iay-offs prior to the April 1937 lay,-off, heretofore discussed. 18 The inspector, Clayton G. Casler, criticized Moller's work because he did not pile the rings he had fin- ished on his table in even rows, but piled them irregularly This was a matter of convenience for the in- spector in counting the rings which it was his duty to do and not any rule laid down by the respondent 19 See footnote 14, supra. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his union membership. The Trial Examiner credited these denials and recommended dismissal of the complaint with respect to Morgan. Upon the entire record, we find, as did the Trial Examiner, that the respondent did 'not deny reinstatement to Morgan because of his union membership or activities. 4. The assembly department Fred S. Latona, Lawrence Edmunds, and Elmer E. Meleen. Latona was employed by the respondent in 1922 and was thereafter laid off and reinstated on different occasions. He was last reinstated in July 1933 and worked steadily as a matcher in the assembly department until December 29, 1937, when he was laid off, the reason assigned by the respondent being lack of work. He joined the Union in April 1937 and thereafter wore his union button at work. Latona testified that at the time of the 1937. dismissals, heretofore discussed, Kreutz, his foreman, asked him if he was in agreement with the union sentiments of the employees who had been dismissed. Ac- cording to Latona's testimony he defended the right of the employees to join a union, whereupon Kreutz told him to keep quiet. Kreutz denied this testimony, but in the light of the anti-union attitude displayed by the- respondent at this time and other controverted statements attributed to Kreutz, which he found to be true, the Trial Examiner did not credit his denial. We find that the conversation took place as above'detailed. In June or July 1938, subsequent to his lay-off, Latona applied for reinstatement at the plant, but was unable to see his foreman or any of the officials. He testified that that-fall, Kreutz told him that Kreutz could not reinstate him because he was a "trouble-maker" and that the men would all quit if Kreutz did hire him.- Kreutz denied this statement also, but the Trial Examiner did not credit his denial. We find that he made the above statement. Latona testified that he applied to Brandel for reinstatement on the day following this talk with Kreutz, Brandel told Latona, according to the latter, that the respondent was not hiring anybody, but that his work had been satisfactory and that the respondent would send for him when a job was available. Brandel denied making the above statement. The Trial Examiner found that his demeanor and testimony as a witness were not impressive and did not credit his testimony in this instance, nor in other controverted instances herein set forth. We find that Brandel made the statements attributed to him by Latona. Brandel, Kreutz, and Dittman, Kreutz's assistant, testified that Latona was chronically tardy. Kreutz and Dittman further testified that Latona continually complained about the work of the measuring employees, who provided material for him. However, Kreutz ad- -MARLIN=ROCKWELL CORPORATION - -515 mitted that Latona was an average worker and compared favorably with the other employees in that respect and, as stated above, Brandel told him in the fall of- 1938 that his work had'been satisfactory. We do not believe, that the respondent would have retained Latona' for more than 4 years or that Brandel would have told him that his work was satisfactory if his alleged tardiness and complaints were really of consequence.. Edmunds was employed steadily as a matcher by the respondent from August 1933 until he was laid off on February 10, 1938. The respondent assigned lack of work as the reason for the lay-off. Edmunds testified that at that time Kreutz told him that he would be one of the first to be recalled when business improved. Kreutz denied making this statement, but the Trial Examiner did not credit his denial. We find that he made the above statement. Edmunds joined the Union in the fall of 1937 and was appointed steward. In that capacity he had several conferences with Brandel. He applied to Kreutz for reinstatement in February 1939 without success and in the fall of that year again applied to Kreutz who told-him. to apply to Brandel. He testified that when he' spoke to Brandel shortly thereafter, Brandel stated that he did not think that Edmunds would ever be reinstated, and that when he called Brandel's attention to the promise made by Kreutz, Brandel stated that Kreutz had been misinformed. Although Brandel admitted having told Edmunds that be would not be reinstated, he denied the other statements. We find, as did the Trial Examiner, that Brandel made the statements at- tributed to him. The respondent has not reinstated Edmunds despite the great increase in the number of assembly-department employees. Meleen was employed as a 'matcher in the assembly department from 1933 until December 29; 1937, when he was laid off, the reason assigned by the respondent being lack of work.20 He was sergeant at-arms in the Union, a fact which was published in the local press. He testified that at the time of his lay-off Kreutz told him that he would inform him when the respondent required his services. He further testified that in November 1940 he complained to Kreutz about the failure to reinstate him and that Kreutz said that his work was satisfactory, but that Kreutz could do nothing about it. Kreutz denied this testimony, but we find, as did` the Trial Examiner, that he made the above statements. Meleen has never been reinstated. The respondent contends and Brandel testified that after the Union started organizing in 1937, Latona, Edmunds, and Meleen all slowed up their work as matchers and restricted production. In support thereof, it submitted a compilation from its records of the average hourly earnings of the matching crew for 1937, and of the new matching '° Meleen was laid off in April 1937 and reinstated under the settlement agreement. (See footnote 3, supra ) He was also one of the complainants in the 1938 complaint case . (See footnote 5, supra.) 5,16 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD crew working in the first quarter of 1940. This compilation does not bear out the respondent's contention. It shows that the earnings of the crew were greater in the last quarter of 1937 than they had been in the first quarter of that year. Although the earnings of the 1940 crew were substantially larger, the record shows that other factors besides more efficient personnel might account for the increase.2t There is no showing in the record that Latona, Edmunds, and Meleen restricted production. They were part of a group comprising 18 employees and the earnings of the employees in the group were not ascertained individually, but were allocated in a lump sum based on group production. The respondent advanced no convincing reason for singling them out of the group as being responsible for restricted production.22 As noted above, Brandel told Latona in the fall of 1938 that his work had been satisfactory." Foreman Kreutz admitted, as stated -above, that, Latona was an average worker and also that Edmunds was a conscientious worker who was "trying to do a job for the company." Although the foreman testified that Meleen was very slow, the Trial Examiner did not credit his testi- mony, nor do we, in view of the testimony given by him at the 1938 hearing that Meleen "upheld his own" as a matcher. It is significant that the respondent assigned lack of work and not unsatisfactory work as the cause for the lay-offs of all three. The respondent's records show that on December 31, 1937, there were 18 employees remaining in the department. On December 31, 1938, the employees numbered 22. On December 31, 1940, there .were 66 employees in the assembly department, at least 40 of whom were new employees. The.Trial Examiner found, and we find, that employment was available for Latona, Edmunds, and Meleen on December 31, 1938. The long records of continuous employment of Latona, Edmunds, and Meleen, their union membership and activities, the unsatisfactory character of the defenses advanced at the hearing, the reinstatement of other old employees and the hiring of a large number of new ones, Kreutz's anti-union statement to Latona,- and the respondent's antagonism toward the Union convince us, as they did the Trial 2i Brandel testified that it was not "necessarily true" that the hourly rate decreased when business became slack because a slack period would result in a reduction in personnel so that the volume of work available to each employee retained would remain constant. He further testified that Latona and Meleen were employed on a standard sized bearing that was manufactured in large quantities even during slack periods. However, he admitted that in busy periods the hourly rates would increase because of increased production and that during such periods employees are on piece -work rates the greater portion of the time and have larger earnings. He admitted further that during slack periods employees must wait for parts at times and that when they do so wait they are paid by the hour. In this connection it should be noted that normal earnings from piece rate are greater than those from hourly rate work . Although Rreutz testified that the average earnings remained constant despite the amount of production , he admitted that when there were large orders employees were not required to move around as much in matching and that, therefore, production would be greater. Si Brandel testified that he thought that Latona and Meleen were restricting the group 's production az I had "just a suspicion , perhaps" that Edmunds was doing so. MARLIN-ROCKWELL CORPORATION 517 Examiner, that these men were denied, reinstatement because of their union membership and activities. We find that the respondent, by refusing to reinstate Latona, Edmunds, and Meleen, discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining,- and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Leah Gardner Greene, Mabel Nordstrand, Agnes 0. Welch, and Frances Stead. Greene, a married woman, was employed continuously as a rivet sticker in the assembly- department from 1933 to October 25, 1937, with the exception of one lay-off in 1936., When she was laid off on October 25, 1937, the reason assigned was lack of work. She joined the Union in April or May 1937 and thereafter wore her union button at work. Greene testified that Kenneth Baker,' from whom she secured her rivets and who was a receiving clerk with certain supervisory duties, told her to take her button off, that it was not appropriate. Baker denied generally that he had ever discussed union buttons with any of the employees. The Trial Examiner found, and we find, that Baker made the statement at- tributed to him by Greene. In the winter of 1939, Brandel told her that he was not going to employ any more married women. Greene has never been reemployed. Nordstrand, also. a married woman and employed as a rivet sticker, was hired in 1934 and laid off on the same day as Greene.23 The respondent also assigned lack of work as the reason for her lay-off. She joined the Union in April 1937, and Kreutz admitted that he knew of her union membership before she was laid off. In August 1939 Brandel told her that he did not intend to hire any more married women. Welch, a married woman, was employed by the respondent from 1933 to December 29, 1937, when she was laid off, the reason assigned being lack of work. She was a rivet sticker and also ran a press. She joined the Union in June 1937 and thereafter wore her union button at work. She testified that Kenneth Baker, noting the button, said "Did you join that damn thing? . . . Do you know that you won't be working here very long . . ' . The company does not approve of that. You had better take that button off . . ." Baker denied making this statement. He admitted,,that union buttons were worn by employees at the time, but stated that he could not recall whether Welch wore one. We find, as did the Trial Examiner, that Baker made the statement as testified to by Welch. She applied foi reinstatement to Assistant Superintendent Leonhart a number of times, beginning within a week after her lay-off and continuing 99,She was also laid off in April 1937 and reinstated under the settlement agreement . See footnote 3, supra. 518 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD throughout the summer and fall of 1938. Brandel advised her in the fall of 1939 that the respondent was not hiring any married women. Stead, a married woman, was employed by the respondent in 1928. The respondent laid her off on December 29, 1937, at which time she was assembling bearings. Lack of work was assigned as the reason for "her lay-off. She joined the Union in the spring of 1937, wore her union button at work, and was included as a claimant in the 1938 hearing. She applied at the plant for reinstatement three times in the fall of 1938 without success. 'We have found that on one occasion Brandel stated that he was not hiring anybody and added that "He did not know whether [Stead],was for the Company or against the Company." In 1939 Brandel told Stead that the respondent was not hiring any married women in the assembly department. ` The evidence presents no substantial issue as to the efficiency of- these four women. Although Kreutz testified that Welch was not "very good" at sticking rivets by hand, he admitted that her work on the automatic press was satisfactory. The evidence is clear that she had been doing both types of work for-some time prior to her lay-off without any criticism. Kreutz admitted that Nordstrand and Stead were good workers, and that Greene was an average worker. The 'Trial Examiner found, and we find, that all four of these women were satisfactory workers. On September 1, 1939, the respondent adopted a so-called married woman rule. This rule did not bar married women completely from employment with the respondent.24 It provided in substance that no married woman would be hired, or if not then working, be reinstated, by the respondent after that date. However, those actually working at that time were permitted to remain. Thus, the positions of mar- ried women working on September 1, 1939, were unaffected by the ruling. Both Greene and Nordstrand come within the rule and are not entitled to reinstatement. They were both laid off on October 25, 1937. The respondent's records show that on October 31, 1937, there were 39 employees remaining in the assembly department. There- after the number of employees in the department decreased gradually until it reached a low of 11 by March 31, 1938. 'Thereafter, the number gradually increased but it did not reach 39 employees until sometime in November 1939, long after the married woman rule had gone into effect. In the cases of Welch and Stead, the situation is materially different. The respondent laid them off on December 29, 1937, and at the end of that month, according to the respondent's records, there were only 18 employees remaining in this department. By January 31, 1939, the number employed in the department had reached 27 and, while within 24 The rule did not bar the hiring of married women in the grinding department. MARLIN-ROCKWELL . CORPORATION 519 the next month or two thereafter there was another slight decline, the number of employees reached 30 by August 31 of that year. There being no evidence to the contrary, it is reasonable to infer that there were positions available for them on January 31, 1939. We find, as did the Trial Examiner, that the refusal to reemploy Greene and Nordstrand was for reasons other than their union member- ships or activities. Considering the union membership and activities of Welch and Stead, their long tenure of employment, the evidence of their satisfactory work, the availability of employment for them prior to the effective date of the married woman rule, the anti-union state- ment of Baker to Welch, the threat of Brandel that the respondent would not reinstate Stead because of her union membership, and the respondent's opposition to the Union, we find, as did the _ Trial Ex- aminer, that the respondent denied reinstatement to Welch and Stead because of their 'union membership and, activities, and that such discrimination occurred before the married woman rule became operative. We find that the respondent, by refusing to reemploy Welch and Stead, discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 5. The polishing department George F. Scott was employed by the respondent in 1936 in the polish- ing department. He joined the Union in June 1937, but did not wear his union button and does not appear to have been an active member. In the summer of 1937 he was transferred to the precision grinding department, where he did polishing and odd jobs. On December 30, 1937, he was laid off, the reason assigned being lack of work. Kreutz denied knowledge of Scott's union membership. The Trial Examiner accepted the denial, found that the respondent did not know that he was a member of the Union, and recommended dismissal of the com- plaint with respect to Scott. Upon the entire record we find, as did the Trial Examiner, that the respondent did not deny reinstatement to Scott because of his union membership or activities. Manley L. Jefferson was employed by the respondent as a polisher in December 1936. Aside from 1 week's lay-off,25 about January 1937, he worked steadily until he was laid off on December 29, 1937, the reason assigned being lack of work. He was never thereafter reinstated. Jefferson joined the Union in June 1937 and the following month was elected trustee and chief plant steward for the Union. The respondent admittedly knew that he was active in the Union. He testified that, at the time of his last lay-off, he asked Foreman Kreutz 2i At the completion of this lay-off, he was called back to work by the respondent 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if he was being discharged, and that Kreutz said, "No," and said further that he would be recalled when business improved. Kreutz, in effect, denied that he told Jefferson that Jefferson would be recalled when business improved. In the light of other statements by Kreutz found to be inaccurate, the Trial Examiner did not credit his denial. We find that Kreutz made the statement attributed to him by Jefferson. In October 1939 Jefferson unsuccessfully applied for work twice at the respondent's plant. Later in the same month he asked Brandel about work. Jefferson testified, and we find, that Brandel stated that the respondent would notify Jefferson when his services were needed.26 In June or July 1940, as found above, Assistant Foreman Blodine asked Clemons if he knew of any polishers who were available for employment, and Clemons suggested Jefferson and Henry O. Warmack, whose case is discussed below, whereupon Blodine remarked that the respondent could not use these men. On the same day Kreutz also asked Clemons about polishers. Clemons again recom- mended Jefferson and Warmack. Kreutz advised Clemons to "forget about those two men because they may cause you to lose your job, too, bringing their names up in here like that," meaning that the respondent would not reinstate Jefferson and Warmack because of their union membership and activities and threatening Clemons with discharge for attempting to secure their reinstatement. As found above, Blodine told Anderson in September 1940 that Jefferson did not "stand any more chance getting back" into the plant than Ander- son did, meaning that he had no chance of reinstatement, and when Anderson asked for the reason, Blodine responded, "You ought to know," meaning that the respondent would not reinstate Jefferson because of his union membership. The respondent admitted that Jefferson was at least an average worker and was available. The only reason advanced by the respondent for its failure to reinstate Jefferson was that he was not persistent in applying. The above statements of Kreutz and Blodine amply demonstrate the futility of any attempts by Jefferson to secure reinstatement. The respondent's records show that there were 11 employees remain- ing in the polishing department after December 31, 1937, and that by March 31, 1938, the number of employees in the department had been reduced to 7. By, January 31, 1939, the number had increased to 18, and thereafter,- with the exception of slight reductions in employment in 1 or 2 months, gradually increased until by the end of December 1940 there•were 79 employees in the department, 53 of whom were new employees. We find, as did the Trial Examiner, that employment in 46 Brandei's version is that he told Jefferson that the respondent was not rehiring at the time, and that Jefferson should "keep in touch" with the respondent. We credit, as did the Trial Examiner, Jefferson's testimony with respect to Brandei's statement. MARLIN-ROCKWELL CORPORATION 521 the polishing department was available for Jefferson on January 31, 1939. Jefferson's union office and activity, his satisfactory work, the absence of a satisfactory reason why he was- not reinstated while other old employees were reinstated and new ones hired in his department, the statements of Kreutz and Blodine that he would not be reinstated because of his union membership and activities, and the respondent's expressed hostility to the Union convince us, as they did the Trial Examiner, that the respondent denied Jefferson reinstatement because of his union membership and activities. We find that the respondent, by refusing to reinstate Jefferson, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and in with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Henry 0. Warmack was employed in the polishing department in 1935'and worked continuously, with the exception of one short lay-off after which he was recalled by the respondent, to March 1, 1938, at which time the respondent laid him off, assigning lack of work as the reason. He has not been reinstated. Warmack testified that, in advising him of his lay-off, Kreutz told him that he would be one of the first to be reinstated. Kreutz denied making this promise, but we credit the testimony of Warmack, as did the Trial Examiner. Warmack joined the Union in the spring of 1937, attended some of the meetings, and thereafter wore his union button while at work. A picture taken by the respondent of the polishing department in operation showed Warmack at work, wearing his union button. Within 3 months after his lay-off Warmack applied to Kreutz for reinstatement, but without success. In the fall of 1938, Brandel told him that he would not be rehired because "it was hard for his foreman to handle him" and he was "almost a case of insubordination." Kreutz testified that Warmack was not efficient as an outer polisher but admitted that he assigned him matching, at which work he was satisfactory, and that he was an average worker. Kreutz asserted generally that Warmack was inclined to be resentful of criticism and acted "superior." In June or July 1940, as noted above, Blodine told Clemons that the respondent could not use Jefferson and Warmack, and Kreutz told Clemons, in effect, that the respondent would not reinstate them because of their union membership and activities and threatened him with discharge for attempting to secure their reinstatement.' As stated above, there were 7 employees remaining in the polishing department on March 31, 1938, and by January 31, 1939, the number had increased to-18., Thereafter many old and new employees were 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employed in the department.27 We find, as did the Trial Examiner, that employment in the polishing department was available for War- mack on January 31, 1939. In view of Warmack's union membership and activities, his satis- factory work, the vagueness of the respondent's defenses, the failure to reinstate him while old employees were reinstated and new ones were hired in his department, the statements of Kreutz and Blodine that he would not be reinstated because of his union membership and activities, and the respondent's antagonism to the Union, we find, as did the Trial Examiner, that the respondent denied him reinstatement because of his union membership and activities. We find that the respondent, by` refusing to reinstate Warmack, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in ,Section 7 of the Act. 6. The machine shop Bernard H. Abrahamson and Maynard G. Buchanan. Abrahamson was employed in December 1936 as a machinist. He was laid off on January 7, 1938, and has never been recalled. The respondent assigned lack of work as the reason for the lay-off. He joined the Union in the spring of 1937, thereafter solicited membership for it, and was otherwise active in its affairs. Approximately 6 months after his lay-off, he applied at the plant gate for reinstatement and was told by the gateman that the respondent would notify him when his services were required. In the fall of that year, Brandel told him that the respondent was not hiring men in the machine shop. We have found that about January 1939, when Abrahamson went to the home of Assistant Superintendent Louis Leonhart, from whom he had originally secured the position, to ascertain the cause of his long lay-off, Leonhart agreed to attempt to secure his reinstatement and said, "God damn you Benny, you had no business joining that union . . ." The respondent has not reinstated him. Buchanan was employed on machinist and general repair work from August 13, 1936, until he was laid off on January 7, 1938, the reason assigned being lack of work. He testified that at the time of the lay-off Tyrrell told him that he thought that it would be only temporary. Tyrrell denied that he made this statement, but we credit the testimony of Buchanan, as did the Trial Examiner. Buchanan joined the Union in the summer of 1937 and thereafter wore his union button at work. In, February and March following his lay-off, Buchanan unsuccessfully applied for work at the respond- 27 The respondent contends that two former employees whose periods of employment antedate that of - Warmack are now performing the work that he performed. However, their periods of employment were not continuous and neither of them was in the respondent's employ at the time of Warmack's layoff. MARLIN-ROCKWELL CORPORATION 523 east's plant gate. In 1939 and early in i940 he applied to Tyrrell, his foreman. In the summer of 1940 he applied to Brandel, who told him .that, the respondent would ,notify him when needed. The respondent-has not reinstated him. Brandel and Tyrrell testified that-Abrahamson and Buchanan were not good mechanics and required constant supervision. Clarence E. 'Lindstrom, assistant foreman under Tyrrell, testified that Abrahamson "did fair" on repair work, but was not a "first class operator" and could not perform some operations, and that Buchanan was "on the same order." Tyrrell stated that he retained Abrahamson and Buchanan-for a year because both had "some" ability and "knew what it was all about" and that he hoped that they-would improve, but that neither did. Leonhart had recommended Abrahamson when he was' hired, and Tyrrell admitted that in September 1938 he gave Abrahamson an unqualified written endorsement as to his qualifica- tions and ability as a workman.28 He further admitted that he gave very few recommendations and purposely recommended Abrahamson unqualifiedly. In view of this endorsement of Abrahamson and the lack of a specific showing that the work of-Abrahamson and Buchanan was inferior, the Trial Examiner did not credit the testimony of Brandel and Tyrrell that their work was unsatisfactory. There is no showing in the record that they were ever advised that their work was unsatisfactory, and the respondent assigned lack of work as the reason for both lay-offs. The respondent's records show that on January 31, 1938, there were 35 employees in the machine shop. The number increased in the latter part of the year and by February 28, 1939, there were 42 employees. The increase continued thereafter and by the end of 1940 there were 65 employees, 32 of whom were new employees. We find, as did'the Trial Examiner, that on February 28, 1939; employment in the machine shop was available for Abrahamson and Buchanan. In view of the respondent's retention of Abrahamson and Buchanan for more than a year, Tyrrell's admission that they had "some" ability, his recommendation of Abrahamson, and the lack of a specific showing that the work of Abrahamson and Buchanan was inferior, we find, as did the Trial Examiner, that they were competent employees and that the alleged criticism of their work was not the reason the respondent did not-reinstate them. •Their union membership and activity, Leonhart's anti-union statement to Abrahamson, and the absence of a satisfactory showing why they were not reinstated, to- gether with the respondent's opposition to the Union, convince us, as they did 'the Trial Examiner, that the respondent did not reinstate Abrahamson and Buchanan because of their union membership and t 38 In this endorsement Tyrrell characterized Abrahamson as "a faithful, competent and efficient workman." 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities. We find that the respondent,- by refusing to reinstate Abrahamson and Buchanan, discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 7. The millwright department Zalmon Frary was hired in the fall of 1936 as a laborer in the mill- wright department under the supervision of Foreman Tyrrell. He was laid off on December 30, 1937, the reason assigned being lack of work. He joined the Union in the fall'of 1937 and thereafter wore his union button at work. ' That fall he took a week off for medical attention. He testified that the following week Tyrrell, in passing out the time checks to the employees for the previous week, announced that there was no time check for him because he had been "playing around with the union . . ." Tyrrell denied making this statement, but in the light of the respondent's anti-union attitude, especially during'this period, the Trial Examiner did not credit his denial. We find that he made the statement attributed to him by Frary. Two or three days after his lay-off, Frary went to the respondent's plant for his overall jacket. He saw Tyrrell and asked when he would be reinstated. He testified that Tyrrell replied that his work was satisfactory and that the respondent would notify him when needed. Tyrrell also denied making this statement; but the Trial Examiner did not credit his denial. We find that Tyrrell made the above statement. Thereafter Frary sought reinstatement at the plant gate every week or two until a few weeks before the hearing, without avail. Tyrrell admitted that Frary was a "fair" worker. He testified that the respondent did not' reinstate Frary because he was the object of practical jokes played by other employees and because he would let his work accumulate and then absent himself 2 or 3 days to let some- one else clear up the accumulation. The "practical joke" criticism seems trivial. It could have been prohibited at any time if the fore- man saw fit to exercise his authority as such. In any event, it was a criticism of the other millwright employees rather than of Frary. Although Frary's weekly time card would have shown his absences, the respondent produced no such record to substantiate the statement of the foreman. The respondent's records show that on December 31, 1937, there, were 14 employees in the millwright department. Thereafter there was a further decrease followed by a gradual increase. By October 31, 1939, there were 18 employees in the department and by December 31, 1940, 22 employees, 13 of'whom were new employees. The Trial Examiner found, and we find, that on October 31, 1939, employment in the millwright department was available for Frary. MARLIN-ROCKWELL CORPORATION 525 Frary's union membership and activities, the failure of any showing of unsatisfactory work, the unsatisfactory character of the defenses advanced at the hearing, Tyrrell's anti-union statement to him, and the respondent's hostility to the Union convince us, as they did the Trial Examiner, that the respondent denied Frary reinstatement because of his union membership and activities. Upon the basis of the entire record we find that the respondent, by refusing to reinstate Frary, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Lewis Alm was employed as a laborer in the millwright department from 1935 until he was laid off on June 9, 1938. The respondent assigned lack of work as the reason for the lay-off. Alm joined the Union in April 1937, wore his union button at work, and was laid off with other employees that month, but the respondent reinstated him the following July under the settlement agreement heretofore men- tioned. In August or September 1938 and several times thereafter he applied for reinstatement at the plant gate. In December 1940, while at the gate, he talked to Tyrrell through the fence. Alm testified, without contradiction, that Tyrrell told him that he did not "want him working there any more." The respondent has never rein- stated'Alm. Tyrrell testified that the respondent did not reinstate him because he had "been in several fights," was "kind of surly" and `''gruff," and "slackened up in his work." Tyrrell admitted that he knew that Alm belonged to the Union, that he never engaged'in fighting around the plant, and that he was a fair workman. Brandel testified that the reports he had from the foremen indicated that Alm "had a temper," was an athlete, "somewha"t of a bully," and that some of the men around the plant "were somewhat afraid of him." When asked how Alm's work compared with others in the department, Brandel stated that the other workmen "were as a whole better or as good." He stated that Alm was an "in and out" worker, one day working hard and the next day working slowly, and that for these reasons he was an undesirable employee. Brandel admitted that he received no com- plaints from Tyrrell as to the quality of Alm's work. The Trial Examiner found that Alm was a fair worker. As stated above, the respondent's records show that there were 14 employees in the millwright department on December 31, 1937, 18 employees by October 31, 1939, and 22 , employees by December 31, 1940, 13 of whom were new employees. The Trial Examiner found, and we find, that on October 31, 1939, employment in the millwright department was available for Alm. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The vague generality and inconsistency of the testimony of Tyrrell and Brandel reveal the absence of any substantial objection to Alm's work. We find, as did the Trial Examiner, that he was a competent and satisfactory employee. His union membership and activities, the unsatisfactory character of the defenses advanced at the hearing, the absence of a satisfactory showing why he was not reinstated while other old employees were reinstated and new ones hired, together with the respondent's antagonism to the Union, convince us, as they did the Trial Examiner, that the respondent did not reinstate Alm because of his union membership and activities. We find that the respondent, by refusing to reinstate Alm, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Timothy Mallen. The Trial Examiner found that the respondent had not discriminated in regard to the hire and tenure of employment of Mallen and recommended that the complaint be dismissed as to him. At the oral argument the Union stated that it would "accept" this recommendation of the Trial Examiner. We have reviewed the evidence bearing upon Mallen's case and concur in the findings of the Trial Examiner. We find that the respondent did not reinstate Mallen for reasons other than his union membership and activities. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in, Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent discriminated in regard to the hire and tenure of employment of Carl K. Corson, Charles G. Nelson, Fred S. Latona, Lawrence H. Edmunds, Elmer E. Meleen, •Agnes Welch, Frances Stead, Manley L. Jefferson, Henry 0. Warmack, Bernard H. Abrahamson, Maynard G. Buchanan, Zalmon Frary; Lewis Alm, and Harold Moller. The record does not indicate the pre- cise date when each of these persons, absent discrimination, would have been reinstated.' The Trial Examiner recommended back pay from the dates when, following the lay-offs, the number of employees MARLIN-ROCKWELL CORPORATION 527 in''given departments first reached a figure substantially in excess of the number of employees remaining immediately after the lay-offs. The respondent has not shown that this method is unfair or arbitrary and we find that it will effectuate the policies of the Act.' In Appendix A, annexed hereto, and made a part hereof, the name of each of the employees found to have been discriminated against is set forth, to- gether with the date as of which he would have been reinstated accord- ing to the aforementioned formula. We shall order the respondent to, offer the individuals listed in Appendix A full and immediate rein- statement,to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of pay they have suffered by reason of the respondent's discrimination by payment to each of them of a sum of money equal- to the amount which each would, normally have earned as wages from the date appearing opposite his name in Appendix A to the date of the offer of reinstatement, less his net earnings during such period.29 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. International Union, United Automobile Workers of America, Local No. 338, 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 employment of the individuals named in Appendix A hereof, thereby discouraging membership in International Union, United Automobile Workers of America, Local No. 338, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By discriminating against Harold Moller because he gave testi- mony under the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (4) of the Act. 4. 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. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 29 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590,8 N. L. R. B 440. 'Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. National Labor Relations Board, 311 U. S. 7. 448105-42-vol. 39-35 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The respondent has not discriminated with regard to the hire and tenure of employment of Charles A. Bosworth, John Ullberg, James A. Morgan, Leah (Gardner) Greene, Mabel Nordstrand, George F. Scott, and Timothy Mallen. 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, Marlin-Rockwell Corporation, Jamestown, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Union, United Automobile Workers of America, Local No. 338, or any other labor organization of its employees, by refusing to reinstate any of its employees or in any other manner discriminating against them in regard to their hire, tenure, terms, or conditions of employment; (b) Refusing to reinstate or otherwise discriminating against any employee because he has filed charges or given testimony under the Act; ` (c) In any other manner interfering with, restraining, and coercing its employees in the exercise of their 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 and protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to the individuals named in Appendix A hereof immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges; (b) Make whole the said individuals named in Appendix A hereof, and each of them, for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment, 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 appearing after his name as shown in Appendix ,A hereof, to the date of the respondent's offer of-resinstatement; less his net earnings during said period; (c) Post immediately in conspicuous places throughout its plant at Jamestown, New York, 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 MARLIN-ROCKWELL CORPORATION 529 (a), (b),, and (c) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's employees are free to become or remain members of International Union, United Automobile Workers of America, Local No. 338, 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 Third Region in writing within ten (10) days from the date of this Order what steps the re- spondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent discriminated in regard to the hire and tenure of employment of Charles A. Bosworth, John C. Ullberg, James A. Morgan, Leah (Gardner) Greene, Mabel Nordstrand, George F. Scott, Timothy Mallen, Earl Bliss, Helen Erickson (Theo- bald), Harry W. Rapp, Herbert Tolson, and Joe B. Wilson, within the meaning of Section 8 (1) and (3) of the Act, be, and it hereby is, dismissed. APPENDIX A Carl K. Corson, March 31, 1939. Charles G. Nelson, August 31, 1938. Fred S. Latona, December 31, 1938. Lawrence H. Edmunds, December 31, 1938. Elmer E. Meleen, December 31, 1938. Agnes Welch, January 31, 1939. Frances Stead, January 31, 1939. Manley L. Jefferson, January 31, 1939. Henry O. Warmack, January 31, 1939. Bernard H. Abrahamson, February 28, 1939. Maynard G. Buchanan, February 28, 1939. Zalmond Frary, October 31, 1939. Lewis Alm, October 31, 1939. Harold Moller, August 31, 1938.