Heckman Building Products Co.

L In the Matter of R. P. HECKMAN AND V. D. HECKMAN, CO-PARTNERS, DOING BUSINESS AS HECKMAN BUILDING PRODUCrs COMPANY and STEEL METAL AND ALLOY WAREHOUSEMEN AND HANDLERS UNION, LOCAL No. 785, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L Case No. C-2428.-Decided February 16, 1943 Jurisdiction : tool manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: anti-union statements ; interrogating em- ployees concerning union membership and activities ; threatening to discharge employees who joined union ; threatening to close plant if union organized. Discrimination: discharge of employee because of union activity. Remedial Orders : cease and desist unfair labor practices; reinstatement and back pay awarded. DECISION AND ORDER On November 21, 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondents had engaged in and were engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set out in the copy of the Intermediate Report attached hereto. Thereafter, the respondents filed exceptions to the Intermediate Report and a brief in support of the exceptions. The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondents, R. P. Heckman and V. D. Heckman, co-partners, doing business as Heckman Building Products Company, Chicago,' Illinois, and each of them, their officers, agents, successors, and assigns, shall : 47 N. L R. B., No. 88. 666 i ITECI{MA` BUILDING PRODUCTS COMPANY 667 1. Cease and desist from : (a) Discouraging membership in Steel Metal and Alloy Warehouse- men and Handlers Union, Local 785, International Brotherhood of Teamsters, Chauffeurs; Warehousemen and Helpers of America, affili- ated with the American Federation of Labor, or any other labor organ- ization of their employees, by discriminating in regard to the, hire and tenure of employment or any term or condition of employment of their employees; (b) In any other manner interfering with, restraining, or coercing their 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 activ- ities for the purposes 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 Ernest Garner, Sr., immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges; (b) Make whole Ernest Garner, Sr., for any loss in earnings he may have suffered by reason of his discharge, by payment to him of a sum of money equal to that which he would normally have earned as wages during the period from the date of his discharge to the date of the offer of reinstatement, less his net earnings, if any, during such period; (c) Post immediately in conspicuous places throughout their plant at Chicago, Illinois, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to their employees stating: (1) that the respondents will not engage in the conduct from which they are herein ordered to cease and desist; and (2) that the respondents will take the affirmative action set forth in paragraphs 2 (a) and (b) hereof; and (3) that the respondents' employees are free to become or remain members of Steel Metal and Alloy Warehousemen and Handlers Union, Local 785, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, or any other labor organiza- tion, and that the respondents will not discriminate against any of their employees because of membership in or activity on behalf of said Union or any other labor organization; (d) Notify the Regional Director for the Thirteenth Region in writ- ing, within ten (10) days from the date of this Order, what steps the respondents have taken to comply herewith. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Mr. Robert T. Drake, for the Board. Sherman & Lewis, by Mr. L. A. Sherman, of Chicago, III, for the respondent. - Mr. Richard Wilkie, of Chicago, Iil , for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed on July 2, 1942, by Steel Metal and Alloy Warehousemen and Handlers Union, Local No. 785, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint, dated September 23, 1942, against R P. Heckman and V. D. Heckman, co-partners, doing business as Heckman Building Products Company, herein called the respondents, alleging that the respondents had engaged in and were 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 Rela- tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondents and the Union. In respect to the unfair labor practices, the complaint alleged, in substance, that the respondents: (1) from and after January 15, 1942, interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act by interrogating various employees regarding their membership in and activity on behalf of the Union, by advising them against such membership and activity, and by warning them that they would be dismissed if they joined the Union; (2) on January 31, 1942. discharged Ernest Garner, Sr., an employee, because of his membership in and activity on behalf of the Union ; and (3) by the foregoing conduct violated Section 8 (1) and (3) of the Act. On October 3, 1942, the respondents filed their answer in which they denied that they had engaged in the unfair labor practices alleged in the complaint. Pursuant to notice, a hearing was held on October 26 and 27, 1942, at Chicago, Illinois, before the undersigned, Samuel Edes, the Trial Examiner duly designated by the Acting Chief Trial Examiner. The Board and the respondents were represented by counsel, and the Union by a representative. All parties partici- pated 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 close of the hearing, the undersigned, without objection granted a motion by counsel for the Board to conform the complaint to the proof adduced at the hearing. The undersigned reserved ruling on a motion by counsel for the respondents to dismiss the complaint for lack of proof. The motion is hereby denied. At the conclusion of the hearing, oral argument was had on the record before the undersigned. An opportunity to file briefs with the under- signed was afforded all parties. None were filed. Thereafter, upon motion of counsel for the Board, and pursuant to notice, the record was reopened and a further hearing held before the undersigned at Chicago, Illinois, on November 5, 1942, for the purpose of adducing additional evidence not theretofore available. The Board and the respondents were represented by counsel, and the Union by a representative. All parties participated in the further hearing, and were afforded full opportunity to examine and cross-examine witnesses and to intro- duce evidence bearing on the issues. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : HECKNIAN BUILDING PRODUCTS COMPANY 669 FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENTS The respondents, a co-partnership having their principal office and plant at Chicago, Illinois, are engaged in the manufacture, sale, and distribution of tools, dies, milling and drilling fixtures, metal stampings, and building specialties, including wall ties, anchors, and inserts During the year 1941 the respondents purchased materials in the amount- of $64,985.27, of which approximately 10 percent was transported to the plant of the respondents from points outside the State of Illinois. In the same preiod, the respondents sold finished products in the amount of $147,450 83, of which approximately 58 percent was sold and shipped by the respondents to points outside the State of Illinois. II. THE ORGANIZATION INVOLVED Steel Metal and Alloy Warehousemen and Handlers Union Local No. 785, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the respondents. III THE UNFAIR LABOR PRACTICES A Intei ference, restraint, and coercion In the period from November 1941 through January 1942, Richard Wilkie and William T. Hogan, representatives of the Union, distributed membership application cards in front of the respondents' plant on some 6 or 7 occasions. In January 1942, according to the testimony of various of the workers in the respondents' employ at the time, R P. Heckman, one of the respondents, ques- tioned employees as to whether they had signed membership application cards, sought to elicit information as to the identity of those who had signed, threatened to discharge employees who became members, and otherwise indicated that mem- bership in the uUnion would not be to the advantage of the employees In this connection, Ernest Garner, Sr, an employee hereinafter found to have been discriminatorily discharged by the respondents, testified that he was called into the respondents' office and asked by R P. Heckman, in the presence of V. D. Heckman, wife of R. P. Heckman and one of the respondents herein, whether he had received one of the membership application cards distributed by the Union. When Garner admitted that lie had, Heckinan inquired whether he intended to sign it. Garner replied that he had not yet decided. Thereupon, Heckman declared, "Well, if you sign it, . . . you won't have no job here . . . I will kick you out." In addition, Heckman asked Garner whether lie was not satisfied with working conditions. Garner replied that he "wasn't satisfied with the pay" ; that he was working "long hours" but "wasn't making enough." Heckman declared that Garner ought to "quit" and "go some place else where there is a Union . . ." Further, Heckman announced that he would "turn . . . off" Garner and all other employees who joined the Union, and threatened to "shut the damn joint down" before permitting the Union to come into the plant. Finally, according to Garner, Heckman asked how many of the employees had joined and, when Garner indicated that he did,not know, warned Garner that if lie signed the membership application card the respondents would "find it out." James Batts-and Wilbert Lynch, employees of the respondents in this period, testified to similar conversations with R. P Heckman in the respondents' office. According to their testimony, Heckman questioned them as to whether they had signed the union membership application cards, asked if they knew whether 670 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD any of the other employees had signed , and-requested them to bring their cards to him. In addition, Heckman indicated that union membership would entail monthly dues of $2 or $2 50 and an initiation fee of about $10, and stated that he "didn't see how " the employees "could pay that kind of money." According to Lynch, Heckman , holding a union membership card in his hand, further declared : "If I hear about or catch anyone signing one of these cards , I will fire them." Batts and Lynch testified that they had signed applications for mem- bership in the Union but that they advised Heckman that they had not. Alexander Darden and Joe Armstrong, two other employees of the respondents at the time, also testified to substantially identical conversations with Heckman. They testified that Heckman approached them while they were at work in the plant, asked them whether they had signed and forwarded application cards for membership in the Union and, when they stated they had not, directed them to'bring the cards to him . In addition, Darden testified that Heckman informed him that the Union would only take his money without doing him any' good. Darden and Armstrong admitted at the hearing that they had in fact applied for union membership at the time Heckman questioned them on the subject R. P. Heckman categorically denied that he had ever spoken to Garner, Batts, Lynch, Darden , and Armstrong, or to any other employee with reference to the Union or to union activity of any kind . V. D. Heckman also denied that she had ever been present during any such conversations . R P. Heckman testified, moreover, that he could not have had any of the conversations attributed to him by the employees since he was confined to a hospital continuously from January 13 through January 23.' Heckman's confinement was established by written state- ments of the hospital bookkeeper and hospital dietician. The fact that Heckman was hospitalized in this period would be significant , however, only if the wit- nesses clearly placed their conversations with Heckman in the period of his confinement. , That was not the case. Garner's signed membership application card was mailed to the Union, as appears from the postmark thereon, on Janu- ary 21. Garner was not certain at the hearing whether his conversation with Heckman, detailed above, took place before or after he mailed the card. At one point he testified that he had mailed the card after the conversation with Heck- man, which would tend to place the date in the period when Heckman was in the hospital. At other points he testified that the card was mailed prior to the time he was called into Heckman 's oflice, which would tend to place the date of the conversation after Beckman 's return to the plant . Garner made it addi- tionally clear that he had no certain recollection as to when the conversation occurred. When questioned concerning the date of the conversation , he testi- fied : "No, sir, I. ain't sure, because I ain't kept no dates." In addition , Garner testified as'follows: Q. Do you remember whether Mr . Heckman got hurt at the plant? A. Yes, sir. * * * * * * Q. Did you see him working at the plant just after he was hurt? A. No-he disappeared ; he was out of the plant- Q. I see. A. For quite some time. I don't know exactly how long. Q. Do you know whether or not, that was before you got the second card which you signed, or was it after? A. I can't remember. I can't remember whether it was before or after. * * * * * * * Q Do you know when it was that Mr. Heckman spoke to you about that card? A. No, sir. I don't remember that. HECKMAN BUILDING PRODUCT'S COMPANY 671 Similarly, it appears clear from the evidence that Batts, Lynch, Darden and Armstrong could not recall with any exactness when their, conversations with Heckman took place other than that it was during the month of January. Batts testified that it occurred "about in the middle" of January or "sometime along there." When asked whether be was certain as to the time, Batts testified : "I don't remember the dates." Lynch testified that he could make no definite statement as to when Heckman spoke to him about the Union, but that he believed it was "about a week" before Garner's discharge which occurred January 31. This would tend to place the conversation after Heckman's return from the hospital. Darden testified that his conversation with Heckman occurred 1 or 2 days after he mailed his union membership application card which, the evidence §hows, was postmarked January 22. Although first testifying further that he was certain the conversation could not have taken place after January 23, Darden thereafter indicated that he was not positive about the matter. Armstrong. testified that Heckman spoke to him on Friday of the week during which he mailed his union membership application card. That card, the evidence estab- lishes, was mailed on January 19. The following Friday would be January 23, when Heckman was still in the hospital. It is apparent, however, that Arm- strong was merely mistaken. The evidence discloses that his memory in such matters was not reliable ; he testified, for example, that he did not mail his appli- cation card until about 2 weeks after Garner's discharge on January 31, although the postmark thereon indicated that the card was mailed more than 10 days before the discharge. In view of the foregoing, the undersigned finds that the fact that Heckman, was in the hospital and away'from the plant from January 13 through January 23 is not determinative on the issue of whether Heckman made the statements attributed to him by Garner, Batts, Lynch, Darden, and Armstrong The testi- mony of these witnesses, the undersigned finds, was entirely credible and may not in any part be impeached by their failure to recollect with certainty the dates of the conversations to which they testified. The denial by R. P. Heckman that he engaged in the conversations attributed to him, and the further denial of V. D. Heckman that she was present during any such conversations, may not, in the view of the undersigned, be credited Both amply demonstrated the untrustworthy character of their testimony. To establish that the conversations could not have occurred, both testified that they had no knowledge of the Union or of any activity on its behalf prior to February,-and both denied ever receiving a letter from the Union advising them that it had been designated as bargaining representative by a majority of the employees and requesting a conference at an early date. A copy of the letter, introduced in evidence, indicated that it was written on January 22 Wilkie testified that he dictated the original on that date and that he thereafter handed it to Hogan with instructions to mail it special delivery, registered mail, return receipt requested. Hogan testified that he followed these instructions ; upon mailing the letter he received a receipt from the post office, and thereafter received a signed return receipt showing delivery to the respondents on January 23 Both receipts were introduced in evidence' The signature appearing on the return receipt, under date of January 23, is as follows : "Heckman Bldg Prod" "V. D. Heckman". A comparison of the handwriting on the return receipt with various specimens of the handwriting of V. D. Heckman made at the hearing shows a marked resemblance between the two. A comparison of the handwriting on the return receipt with the handwriting of V. D. Heckman appearing on three other 'The receipts were not available at the original hearing. Thereafter , the Union having discovered the receipts, the hearing was reopened to allow their introduction in evidence. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD return receipts in-the record, pertaining to service upon the respondents of the complaint and notice of hearing and of orders continuing the hearing, shows such further identity in the style and form of the writings, the angulation and formation of the letters and syllables, singly and in combination, and other definitive characteristics and peculiarities, that it cannot Pe doubted that V. D. Heckman executed the return receipt for the letter of the Union of January 23. In all of the circumstances, the undersigned finds that V. D Heckman did execute the, return receipt for the Union's letter of January 23, that the letter was received by V. D. Heckman on behalf of the respondents, and that as a result thereof the respondents were on that date aware of the claims of the Union as majority representative of the employees In view of, the unqualified and emphatic denial by the respondents of the fact that the letter was received and that they had knowledge of the Union and activity on its behalf at that time, and from his observations of the witnesses, the undersigned cannot credit their testimony respecting the conversations with the employees as detailed above. In all of the foregoing circumstances, the undersigned finds that R.,P. Heckman, at times in the presence of V. D. Heckman, spoke to various of the employees and made the statements to them substantially as testified to by Garner, Batts, Lynch, Darden, and Armstrong, and that the respondents thereby engaged in a deliberate effort to discourage and defeat union organization by questioning employees regarding their union membership, eliciting information from them regarding the union affiliation of other employees, threatening to discharge employees who joined the Union, and otherwise indicating that union membership would be to the disadvantage of the employees. The undersigned further finds that by such conduct the respondents, and each of them, have interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. 1 B. The discriminatory tetrnination of the employment of Ernest Garner, Sr. Ernest Garner, Sr., was employed by the respondents on June 27, 1941. On August 1, 1941, he left to visit an ill brother out of the State. Thereafter, on -October 3, 1941, he returned and resumed his employment with the respondents, until January 31, 1942, when the respondents terminated his employment. R. P. Heckman admitted that Garner had been a satisfactory worker. The respondents asserted at the hearing that Garner's employment was termi- nated because of lack of materials and a decline in orders. The record bears 'out the fact that there was a shortage of materials and a decline in business in this period. That fact, howevei, does not in this case explain why Garner was selected by the respondents for separation. While R. P. Heckman asserted that the respondents did "not always" follow a strict seniority policy, he pointed out that : "We try to lay off the last man that we hire. That is the thing that we have always tried to do." The evidence established that in Garner's case slight attention was paid by the respondents to length of service. Assuming that Garner's employment from June 27 to August 1, 1941 may not be counted in determining his seniority status because of the hiatus in his employment from August 1 to October 3, 1941, and \that his seniority,' therefore, commenced on October 3, 1941, the record shows that at least 4 employees, hired in the month prior to Garner's separation were retained in preference to Garner.' This may 2 On December 31, 1941, according to the respondents" payroll records, 18 persons were employed at the plant. On January 23, 1942, 23 persons were employed including one employee, Bowman, who was employed prior to December 31 but who may have been away from the plant "on a tear" - and, therefore , not carried on the payroll of December 31. Following Garner's dismissal, 5 other employees were separated from the respondents'. employ; all 5 had been emplo yed for considerable periods prior to December 31. HECKMAN BUILDING PRODUCTS COMPANY 673 not in the circumstances of this case , be explained on the ground that Garner was employed for the limited purpose of operating the slitting and wall tie machines in the plant as contrasted with other workers employed to operate a variety of machines . Although the Heckmans and one of the shop supervisors , Joseph, Dallmeyer, so testified, the undersigned does not credit their testimony in this respect. Garner testified that he had operated practically . all of the different kinds of machines in the plant . As put by Garner : "You work on one machine you stop on this and go to the other and work that machine, and go the other." R. P. Heckman , himself, indicated that in fact many of the employees were "switched" from machine to machine as the needs of the plant required.. This was true, the evidence discloses , even of individuals hired as truck drivers. Indeed, when asked at the hearing to name other employees doing work com- parable to that of Garner at the time of the latter 's dismissal, Heckman specified Armstrong and Darden , who, the uncontradicted evidence shows, operated a` variety of machines in addition to the slitting and wall tie machines . Further, the Heckmans admitted that in the period of his employment Garner's duties had included the operation of the punch press, the setting up of wall plugs, and the sealing of cartons . In all of the circumstances , the undersigned finds that Garner was not hired for the limited purpose of operating the slitting and wall tie machines , that his duties included the operation 'of a wide variety of machines, and that the dismissal of Garner , while retaining the 4 employees hired during the preceding month, may not be explained by reference to any claim that Garner's, employment was of ,a limited character. The unexplained departure by the l respondents from the policy of seniority to which in other cases they "always tried " to adhere, appears particularly significant when examined in light of other circumstances disclosed by the record. The only other instance of such departure , so far as appears from the record,; occurred the week after Garner's dismissal . In that case It. P:, Heckman admitted that he dismissed five employees , Armstrong, Batts, Darden, Lynch, and Rudolph , although there were other employees in the plant with less seniority. The Heckmans explained that seniority was not followed in the case of these five because they had absented themselves from work one day during that week. At least four of these five, as above indicated , were members of the Union who had been questioned by R. P . Heckman in that regard , and whom clearly, Heck- man suspected of union affiliation . In sharp contrast; the respondents had never taken like action in the case of another employee, Bowman,, who, as V. D. Heckman testified, "would go out some weeks and stay out for several weeks on a tear . . ." Indeed, Bowman was promptly reinstated to employment following such a "tear " the week after the dismissal , out of seniority , of Arm- strong, Batts, Darden, Lynch, and Rudolph. Further, the record shows that following Garndr's dismissal the respondents never made any effort to recall him, although , as Heckman testified, it was customary and the respondents "would always try" to do so when work 'became available. Although the Heckmans testified that Garner was not recalled only because no further work became available , R. P. Heckman admitted that on February 20, only 3 weeks after Garner was dismissed, the respondents hired Agnes Howell, ' a new em- ployee, to pack wall ties, set , up wall plugs, and, at times, operate 'a punch press machine, work which, as indicated above, Garner was capable of doing and which he had performed in the course of his employment with the respondents. The failure of the respondents' explanation -, for the dismissal of and sub- sequent neglect to recall Garner ' when viewed in light of the respondents' 513024-43-vol. 47-43 674 DECISIONS OFD NATIONAL LABOR RELATIONS' BOARD interrogation of Garner concerning his union affiliation and of the blunt threats to dismiss him if he joined the Union, detailed above, makes it clear, in the view of the undersigned, that Garner, in fact, was dismissed because he had joined .the Union or, at the least, because the respondents suspected that fact. Garner apparently was particularly suspect. Not only had he admitted, when questioned by R P. Heckman, that he was not satisfied with his hours and rate of pay, but, as Armstrong testified, Heckman specifically asked Armstrong : "Are you right sure Garner didn't talk you into the notion of joining this union?" The undersigned credits Armstrong's testimony in this regard. In all of the circumstances, the undersigned finds that the respondents, and each of them, discriminated in regard to the hire and tenure of employment of Ernest Garner, Sr., thereby discouraging membership in the Union and inter- fering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE, EFFECT OF THE UNFAIIR LABOR PRACTICES UPON COMMERCE The undersigned finds that the activities of the respondents set forth in Section III above, occurring in connection with the operations of the respondents de- scribed 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 i Having found that the respondents have engaged in certain unfair labor practices, .the undersigned will recommend that they cease and desist there- from and take certain affirmative action which the undersigned finds will effectuate the policies of the Act. Since it has been found that the respondents discriminatorily dismissed' Ernest."Garner, Sr, the undersigned will recommend that the respondents' offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss in earnings suffered by him as a result Of the respondents' discrimination, by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of his discharge to the date of offer of reinstatement, less his net earnings during that, periods Upon the basis of the foregoing findings of fact, and upon the entire record in the'ease, the undersigned makes the following: CONCLUSIONS OF LAW 1 Steel Metal and Alloy Warehousemen and Handlers. Union, Local No. 785, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L, is a labor organization, within the meaning of Section 2 (5) of the Act. 'By "net eai nuigs" 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 respondents, which,would,not have been incurred but for the unlawful discrimination against him and the consequent necessity; of his seeking employment else- where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 259, 8 N. L. R. B. 440. Monies received from 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. HECKMAN-BUILDING PRODUCTS COMPANY 675 2. By'.discriminating in regard to the hire and tenure of employment • of Ernest Garner, Sr., thereby discouraging membership in the Union, the .re:. spondents have engaged and are engaging, in unfair labor practices, within the meaning of Section 8 (3) of the Act. - 3. By interfering with, restraining, and coercing their employees in, the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The foregoing unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act, RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondents, R. P. Heckman' and V. D. - Heckman, co-partners, doing business as Heckman Building Products Com- pany, Chicago, Illinois, and each of them, their agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Steel Metal and Alloy Warehousemen and Handlers Union, Local 785, -International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpcrs of America. A F of L, No. 20732, or any other labor organization of their employees., by discrimination in regard to the hire and tenure of employment or any term or condition of employment of their employees ; (b) In any other manner interfering with, restraining, or coercing their em- ployees in the exercise of the right of 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 2. Take the following affirmative action. which the undersigned finds will effectuate the policies of the Act, (a) Offer to Ernest Garner, Sr, immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges ; (b) Make whole Ernest Garner, Sr.. for an} losses in earnings that he may have suffered by reason of his dismissal, by payment to him of a sum of money equal to that which he would have earned as wages during the period from the date of his dismissal to the date of offer of reinstatement, less his net earnings; if any, during that period ; (c) Post immediately in conspicuous places throughout their plant and main- tain for a period of at least sixty (60) consecutive days fiom the date of posting, notices to their employees stating: (1) that the respondents will not engage in the conduct from which it is recommended that they cease and desist in para- graphs 1 (a) and (b) hereof; (2) that the respondents will take the affirmative action set forth in paragraphs 2 (a) and (b) hereof ; and (3) that the respondents' employees are free to become or remain members of the Union, and that the respondents will not discriminate against any employee because of membership in or activity on behalf of that organization ; (d) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondents have taken to comply herewith. 4 See footnote 3, evpra. 676 DECISIONS'"OF NATIONAL LABOR 'RELATIONS BOARD It is •further recommended that unless on or before ten (10 ) days from the receipt of this Intermediate Report the respondents notify said Regional Director in writing that they will comply ' with the foregoing recommendations , the Na- tional Labor Relations Board issue an order requiring the respondents to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended , effective October 14, 1942-any party may within fifteen ( 15) days from the date of the entry of the order transferring the case to the Board , pursuant to Section 32 of Article II of said Rules and Regulations , file with the Board, Shoreham Building, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or pro- ceeding ( including rulings . upon all motions or objections ) as he relies upon,,to- gether with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefore must be made in writing to the Board within ten (10 ) days from the date of the order tronisferring the case to the Board. SAMUEL EDES, Trial Examinet'. Dated November 21, 1942.