Western Cartridge Co.

In the Matter Of WESTERN CARTRIDGE COMPANY, .A CORPORATION, and LOCAL No. 12418, DISTRICT 50, UNITED MINE WORKERS OF AMERICA Case No. C-0419.Decided March 24, 1943 Jurisdiction : ordnance manufacturing 'industry. Unfair Labor Practices 'Interference, Restraint, and Coercion: interrogating employees concerning union membership and activity; warning employees not to join the union; ridiculing and disparaging the union and its members. Discrimination: conditioning the reinstatement of economic strikers upon their appearance before a discipline board; discriminating against one group of economic strikers whose participation in the strike the employer considered more heinous than that of the' remaining strikers by replacing them with permanent new employees while making no attempt to replace the other strikers ; suspension of employee because of employer's belief that he assisted strikers. Remedial Orders : employer ordered to reinstate striking employees and to award back-pay to those discriminated against as of the date there existed a willingness of all strikers to return to work. DECISION AND ORDER Upon complaint issued pursuant to charges duly filed by Local 12418, District 50, United Mine Workers of America, herein called the Union, against Western Cartridge Company,'East Alton, Illinois, herein called the respondent, a hearing was held before a Trial Ex- aminer in East Alton, Illinois, from October 26 to 30, 1942, in which the Board, the, respondent, and the Union participated by their rep- resentatives. The Board has reviewed the rulings the Trial Exam- iner made on motions and on objections to the admission of evidence and finds that no prejudicial error was committed. The rulings are hereby affirmed. - On November' 16, 1942, the Trial Examiner issued his Intermediate Report finding, that the respondent had engaged in violations of the Act. Exceptions to- the Intermediate Report and a. brief were there- after filed by the respondent. Oral argument was held before the Board on January 11, 1943. Upon our consideration of the entire record, we affirm the findings of the Trial Examiner save as incon- sistent with our Decision as hereinafter set forth. 48 N. L. R. B., No. 55. 1 434 WESTERN. CAIRTRIDAGF COMPANY 435 • - The Trial Examiner has found that the respondent, through Fore- men Brewer, Crawford,, and Dean, inquired into the union,interest of employees, warned employees not'to join the Union, questioned employees concerning union membership, and ridiculed and dis-: paraged the Union and its members. We agree, with the Trial Ex- aminer's resolutions of conflicting testimony in connection with this aspect of the'case'and confirm his findings thereon. The Trial Examiner has also found that the respondent discrimi- nated in regard to the hire and tenure of employment of 40 named employees, thereby discouraging concerted activity and membership in the Union, within the meaning of Section 8 (3) of the Act. We agree with and confirm these findings of the Trial Examiner with the qualifications hereinafter stated. The respondent, from the inception of the strike on July 3; 1942, and thereafter, engaged in ' a course of conduct, fully and accurately described by the Trial Examiner in his Intermediate Report, which clearly shows that the respondent dis- criminated against- its striking employees because of their lawful concerted activities. We do not, however, confirm the finding of the Trial Examiner that the respondent in effect discharged the striking employees on July 6, ' 1942, since we are not fully satisfied that on that day the striking employees made unconditional application for reinstatement. Until economic strikers abandon their demands and make unconditional application for reinstatement, their employer may replace them with new employees.' When strikers apply for reinstatement, the employer is under a duty to refrain from discrimi- nating against them because of their concerted activities, which, of course, indicates that an employer may not discriminate among strikers in determining which to reinstate to the positions which re- main unfilled. We are of the opinion that discrimination of this character may be evidenced by an attempt to replace only those strikers whose concerted activities the employer deems most objec- tionable, as well- as by a refusal to reinstate only such employees. On July 7 the respondent formally "discharged" the day-shift em- ployees because they had initiated the strike during their working shift. It did not at that time, and never has, discharged the employees from the other shifts who had gone on strike. Between July 8 and 15, the respondent replaced the day-shift employees with permanent new employees. It did not make and has not made any attempt to replace the strikers from the other shifts. On July 8, employee Seegar made application for reinstatement on behalf of,the strikers and was informed by the respondent's person- nel director,' Haddleton, that the day-shift employees had been di- N. L. R. B v Mackay Radio ct Teiegrapfl Co, 304 U. S 333. 521247-43-vol 48-29 436 DECPSTONS OF NATIONAL' LABOR RELATIONS BOARD charged but, that positions were available for employees of the other shifts upon appearance before the respondent's Discipline Board. By thus "discharging" and subsequently replacing the day-shift employees alone because of their part in a lawful strike and because the respond- ent regarded their participation in the strike as more heinous than that of the other strikers, the respondent engaged in discrimination as between, the day-shift strikers and the other strikers. Such dis- crimination because of union activities constitutes a violation of Sec- tion 8 (3) of the Act. , - - We find that the respondent, by its course of conduct on and after July 3, 1942, as set forth above and in the Intermediate Report, dis- criminated in regard to the hire and tenure of employment of all its striking employees, and thereby discouraged membership in the Union and interfered with, restrained, and coerced its employees in the exer- cise ofthe rights guaranteed in Section 7 of the Act. -'''We find also, as did the Trial Examiner, that°the respondent dis- criminated with respect to the hire and tenure of employment of Lon Goessman on July 3, 1942. On July 9, 1942, Ernest McDonald refused to report for.work while the strike persisted at the respondent's plaiit.' He thereby himself joined the strike; and the respondent conditioned his reinstatement upon abandonment `of the strike and appearance before the Discipline Board.2 We therefore find that McDonald, like the other striking ° employees, was discriminated against by the respondent. ' The Remedy Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to. take affirmative action designed to effectuate the policies of the Act. We have found that the respondent discriminated with regard to the hire and tenure of employment of Lon Goessman and of Ernest Mc- Donald and the, 18 other day-shift employees listed in Appendix A attached hereto. Me shall therefore order the respondent to offer, to,' the employees named in Appendix A immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. Reinstatement shall be effected in the following manner : all new employees hired by the respondent after July 7, .1942, the date on which the day-shift em- ployees were discharged, shall, if necessary to provide employment for those to be offered reinstatement, be dismissed. If, thereafter despite such reduction in force, there is not sufficient employment avail- 2The respondent admitted in'tbe brief filed by it with the Board that McDonald was "assured of being put back to woi k-if he wguld. abandon the strike." ' i WESTERN CARTRIDGE COMPANY 437 able for all the employees to be, offered reinstatement, all available positions shall.be distributed among such employees without discrim- ination against any employee because of his union affiliation or activ- ities, following such system of seniority or other practice as has here- tofore been applied in the conduct of the respondent's business. Those employees, if any, remaining after such distribution, for whom no employment is immediately available, shall be placed upon a prefer- ential list and offered employment in their former or substantially equivalent positions as such employment becomes available and before other persons are hired for such work, in the order determined among them by such system of seniority or other practice as has heretofore been followed by the respondent. The respondent, by inaugurating on July 7, 1942, a discriminatory campaign to replace only the day-shift strikers and bar their return to work, effectively indicated to them the futility of applying for reinstatement. We shall therefore order the respondent to make these employees, including Ernest McDonald, whole for any loss of pay they may have suffered because of the respondent's discrimination against them. In view, however, of the nature of the respondent's business, the circumstances under which the strike took place, and the fact that not until July -31, 1942, did a substantial number of the strikers other than those who had been on the first shift return to work and thereby give some indication of the willingness of all the strikers to return, we shall limit our back-pay order by directing the respondent to pay to each of the employees listed in Appendix A hereto a' sum of money equal to the amount which he would normally have earned as wage's during the period from July 31, 1942, to the date of the respond- ent's offer of reinstatement or of his placement on a preferential list as provided above, less his net earnings 3 during such 'period. Since the positions of the striking employees on the second, third, and swing shifts were at all times kept available to them, we shall not require the respondent to reimburse them for any loss of pay: on their part. With respect to Lon Goessman, who was effectively discriminated against on July 3, 1942, we shall order the respondent to offer him inunediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges, and to make him whole for any loss of, pay he has suffered by reason of the discrimination against him by payment to 3 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- wheie 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, etc, 8 N L R -B 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief project's shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S 7. 4 38 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD him of a sum of money equal to the amount which he'would normally have earned as wages during the period from July 3, 1942, to the date of the respondent's offer of reinstatement, less his net earnings 4 during such period. Upon the basis of the above findings of,fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Local No. 12418, District 50, United Mine Workers of America, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Lon Goessman and its striking employees and thereby dis- couraging membership in Local No. 12418, District 50, United Mine Workers of America, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of 'the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the .respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act.p 5. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (2) of the Act, or within the meaning of Section 8 (3) of the Act with respect to L. Fisher, D. I3artrnan and E. Welch, as alleged in the complaint. 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 re- spondent, Western Cartridge Company, a corporation, East Alton,- Illinois, and its officers, agents, successors, and assigns, shall : 1. Cease' and desist from: (a) Discouraging membership in Local No. 12418, District 50, United Mine Workers of America, or in any other labor organization of its employees, by suspending, discharging, or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment; 4 See footnote 3, supra. WESTERN, 'CARTRIDGE COMPANY 439 (b)- In any other manner . interfering with , restraining; or coercing its employees in the exercise 'of the right to self-organization, to, form,, join, or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , as guaranteed in Section'7 of the Act. . 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : , (a) Offer the employees listed in Appendix A hereto immediate and full reinstatementf' to their former 'or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth above in the section entitled "The Remedy," and place those employees for whom employment is not immediately available upon a preferential list and thereafter offer them employment , as it becomes available, in the manner set forth in said section ; (b) Make whole the employees listed in Appendix A hereto for any loss of pay they may have suffered by reason of the respondent's dis- crimination in regard to,their hire and tenure of employment, by pay-, went to each of them of a sum of money equal to the amount which he would normally have earned as wages during the period from July 31, 1942, to the date of the respondent's offer of reinstatement or of his placement on a preferential list, as set forth above in the section entitled "The Remedy," less his net earnings during such period; (c) Offer Lon Goessman immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges ; (d) Make whole Lon Goessman for any loss of pay he may have suffered by reason of the respondent's discrimination in regard to his hire and, tenure of employment, by payment to him of a sum of money equal to the amount which he would normally have earned as wages during the period from July 3, 1942, to the date of the respondent's offer of reinstatement, less his net earnings during such period; (e) Post immediately in conspicuous places in` each of the build- ings in its plant at East Alton, Illinois, 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 I (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth'in paragraphs 2 (a), (b), (c), and (d) of this Order; and (3), that the respondent's employees are free to become and remain members of Local No. 12418, District 50, United Mine `Workers of America; and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization; , 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Notify the Regional Director for the Fourteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (2) of the Act and insofar as it alleges that the respondent has discriminated in regard to the hire and tenure of employment of L. Fisher, D. Hartman, and E. Welch. MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Order. APPENDIX A - C. Ahearn K. Herron O. Seago H. Baker R. Hunter R. Seeger R. Bickell C. Kirksey Clifford Smith I-I. Blackwood L. Martin M. Tucker E. Cox E. McDonald C. Tuey W. Eppmeyer P. Russell L. Halbe W. Sanders INTERMEDIATE REPORT Mr. Alba B. Martin, for the Board. Mr. R. H. McRoberts and Mr. Henry Davis, of St. Louis, Mo., for the respondent. Mr. Ervin K. Hartenstein and Mr. Roy White, of Alton, Ill., and Mr. Raeford B. Seeger, of Cottage Hill, Ill., for the Union. STATEMENT OF THE CASE Upon a first amended charge duly filed by Local 12418, District 50, United Mine Workers of America, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourteenth Region (St. Louis, Missouri), issued its complaint dated October 3, 1942, and an "Amendment to the Complaint" dated October 13, 1942, against Western Cartridge Company, a Corporation, East Alton, Illinois, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, amendment to the complaint, amended charge, and notice of hearing thereon were duly served upon the respondent and the Union. . With respect to the unfair labor practices, the complaint alleged in substance : (1) that the Board in its Decision and Order dated September 16, 1942, found that the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and engaged in unfair labor practices within the meaning of Section 8 (1), (2), and (3) of the Act;1 'In the Matter of Western Cartridge Company, a corporation, and American Federation of Labor and its Affiliated organizations, 44 N. L. R. B., No. 7. WESTERN CARTRIDGE, COMPANY 441 '(2) that the respondent in June and July, 1942, advised representatives of its employees in its'cupping department that matters 'concerning ,grievances, wages, and,changes in the wage structure must be presented through Western, Cartridge, Employees Independent Union, herein called the Independent (ordered disestab- lished by the Board-on September 16, 1942) ; (3) that because of the respondent's conduct found by the Board to,be a violation of the Act and its aforesaid conduct in advising,cupping department employees that their demands must be presented by the Independent, the cupping department employees did on or about July 3, 1942, and subsequent thereto engage in concerted activities for the purpose of mutual aid and protection;, (4) that the respondent suspended or discharged on or about July 3, 1942, and has since-refused to reinstate 20 named employees,' and between July 3 and 6, 1942, suspended or discharged and refused to reinstate until various dates after July 6, 1942, 26 other named employees' for the reason that each of the said employees joined the Union and engaged in concerted activity for the purposes of collective bargaining and other mutual aid or protec- tion; (5) that the respondent required the employees above-named on or about July 6, 1942, and subsequent thereto to abandon their concerted activities and appear before its Discipline Board as a condition to reinstatement to their former positions; and (6) that the respondent from February 1, 1942, to date urged and warned its employees to ,refrain from joining or assisting the Union; threatened employees who had grievances; disparaged and traduced the Union and its leaders ; questioned employees about their union activities and affiliations, listed the names of employees who wore union buttons ; and blacklisted employees because of their concerted activity.' The amendment to the complaint alleged that the respondent, by' not dis- establishing the Independent, and by not ceasing to give effect to its contract with the Independent as ordered by the Board in its Decision of September 16, 1942, did from and a'fter;;that date, down to the date of the issuance of the complaint herein, continue to violate Section 8 (1) and (2) of the Act. In its answer, filed October 21, 1942, the respondent denied that it had engaged in or was engaging in the alleged unfair labor practices. Pursuant, to notice, a hearing was held from October 26 to 30, 1942, at East Alton, Illinois, before' Mortimer Werner, the undersigned Trial Examiner, duly designated by the Acting Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by its representatives. All parties 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-commencement of the hearing, counsel for the Board moved to amend the complaint so as to allege the discriminatory discharge on July"3, 1942, and later refusal to reinstate five additional employees; and to strike that portion of the complaint which alleged the reinstatement of the said employees on or 2 R Hunter, R Bicke]l, L IIalbe, M Tucker, P' Russell, Clifford Smith, C Ahern, W Epp- meyer, L Goessman, L Fisher, E Cox , R nSeeger ; H. Blackwood, L. Martin , H. Baker; C Tuey, K Herron, 0 Seago, W, Howe, and C Knksev. 3 R Donbrow, E Helm, E McDonald, R Page. E Strain, C Hann, L W Ames, W Holly, B. Ufeit, L Strahan, E Welch, W Howe, D, Hartman, W Sanders, F Bailey, B Dycus, L Fisbei, C Jackson, J IIaitley, C Copley, E Fones, E Marshall , B Huston, B Biuce, N Sexton, and E Willis The name of J Haitley was later stricken on motion of counsel for the Board, without objection The names of W Howe and L. Fisher through error in both paragraphs of the complaint Errois in spelling of names have been corrected 4 Apparently through inadveitence, the complaint does not allege that the acts set forth above in section (6) are unfair labor practices No objection was made at the hearing to this technical omission in the pleadings and these issues were litigated-fully at the hearing as though pleaded as violations of the Act. E. McDonald, W. Sanders, E. Helm, E. Strain , and L. W. Ames. I 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after July 6, 1942. The motion was granted without objection. Thereafter the American Federation of Labor sought to intervene as' a' party to the pro- ceeding, claiming an interest in the proceeding by reason of its previous efforts to obtain the reinstatement of the discharged employees and to settle the differences and on the further ground that its intervention would help to speed the conclusion of the hearing. The motion was denied. The motion of counsel for the respondent for a rule to exclude all witnesses was denied. At the conclusion of the Board's case, the respondent moved to dismiss the allegations of the complaint separately and in their entirety, which motion was denied. During the hearing counsel for the Board moved to strike the name of J. Hartley from the complaint. The motion was granted. At the conclusion of the hear- ing, the motion of counsel for the Board to conform the pleadings to the proof as to matters of form was granted without objection. Oral argument in which the Board and the respondent participated was had on the record. Pursuant to leave granted, the respondent filed a brief. Neither the Board nor the Union filed briefs. Upon the entire record thus made and from his observation of the witnesses the undersigned makes, in addition to the foregoing, the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT' The respondent, Western Cartridge Company, a Delaware corporation, operates a plant at East Alton, Illinois, where it is engaged in the manufacture, sale, and distribution of small arms , ammunition, explosives, traps, targets, and brass articles of various kinds, all for war production. The raw materials used by the respondent include copper, lead, zinc, steel, paper, tin, limestone, rubber, coal, and chemicals. During the period from January 1, 1942 to October 26, 1942, the respondent purchased, for use at its East Alton plant, raw materials valued at "several million dollars," more than 50 percent of which was received from sources outside the State of Illinois. During the same period, the respond- ent sold products manufactured at its East Alton plant valued at "several million dollars,". more than 50 percent of which was shipped to destinations outside the State of Illinois. The entire production of the East Alton plant "goes to various branches of the United States Government," or under war production priorities to other companies. In its answer the respondent admitted the jurisdictional allegations of the complaint. At the time of the hearing the respondent employed at its East Alton plant between seven and eight thousand employees. H. THE ORGANIZATIONS INVOLVED Local No. 12418, District 50, United Mine Workers of America, and Western Cartridge Employees Independent Union, are each labor organizations, admitting to membership employees of the respondent. M. THE UNFAIR LABOR PRACTICES A. The prior proceeding On November 19, 1941, the Board issued a complaint against the respondent alleging that the respondent had engaged in unfair labor practices within the 8 The findings in the paragraph below are based upon a stipulation entered into between the attorney for the Board and the respondent. WESTERN CARTRIDGE COMPANY 443 meaning of Section 8 (1), (2), and (3) of the Act.' Hearing thereon was held from December 8, 1941'to January 9, 1942, Sit East Alton, Illinois, before a Trial Examiner of the Board. On February 25, 1942; the Trial Examiner found that the respondent had engaged in unfair labor practices within the meaning of ,Section 8 (1), (2), and (3) of'the Act and made appropriate recommendations 'accordingly, On September 16, 1942, the Board issued its Decision and Order, finding that the'respondent had violated Section'S (1), (2), and (3) of the Act.8 Among other things, the Board found that the respondent dominated and inter- fered with the formation and administration of the Independent and contributed support to it, and ordered that the respondent withdraw all recognition from the Independent as an employee representative, cease and desist' from giving effect to any and all agreements with the Independent, and completely disestablish it as such representative. The above findings of the Board are not alleged in the present proceeding as unfair labor practices, but they have significance in appraising the respondent's subsequent conduct. The present proceeding relates only to events in and after February 1942 in the East Alton plant. B. Interference, restraint, and coercion 1. Hostility and ridicule by foremen Various union organizations have attempted in the past to organize the re- spondent's employees ht East Alton The Congress of Industrial Organizations, herein called the C. I. 0., began such a campaign in 1937. In December 1940, the American Federation of Labor, herein called the A. F of L, started organizing activity and in 19411ncreased such activity. Late in 1941 and early in 1942, the Union, then affiliated with the C. I. 0., started to organize the respondent's em- ployees and was particularly successful in obtaining members in the cupping department. Substantially all of the respondent's alleged violations of the Act in the present proceeding arise out of the union affiliations and concerted activities of the 72 employees in this department. Carl Canada, an employee in the brass mill, joined the Union on February 6, 1942, and thereafter wore his union button while at work.' Kenneth Brewer, his foreman, observed his button one' day, laughed, and stated inquiringly : "You, too?"0 In the cupping department many employees joined the Union early in February 1942 and immediately thereafter started to wear their union buttons. Walter Crawford, the foreman of this department, questioned employees about the Union and'ridiculed the Union and their interest therein. One day in February 1942, Crawford approached employee Neil Sexton, took hold of his union button, rubbed his hand over it, sneered, and stepped away.'° Arthur LeRoy Page, another employee, joined the Union in March 1942. He testified as follows concerning a conversation he held shortly thereafter with 'Crawford: T Charges were filed by-the American Federation of Labor and its affiliated organizations, Chem ical'Workers Local Union No 22574, and International Molders and Foundry Workers Union,of Noith America, Local 333 8 At the bearing the respondent's counsel stated that it had not complied with the Board's order "requiring of i matlve action , and that on or about October 16, 1942 , it had petitioned tl'e United States Court of Appeals for the Seventh Circuit for review of the Board ' s Decision and Order ° B rwer did not testify at the hearing : the finding is based on Canada's testimony. 10 This finding is based , on Sexton's testimony. Crawford testified he did not recall the Incident. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q What did Crawford say or do? A He said, "Page, as long as you have been here, I would not have thought you would have joined the Union " - Q Then what did you say? A. I said "Well, I thought maybe I would better myself.,' Q What did he say? A. He said "If the company would lay you off, you would raise hell." ... I said "If they did lay me oil for joining the Union, yes " He said !'They can do it." I said "No, they can't." He said "You will see." Although Crawford denied remarking to Page that the respondent might lay him off because of his union membership, he admitted telling Page that he "would have given it a damn good thinking over" before he would have joined the Union. The undersigned finds that Crawford made the remarks attributed to him by Page. One day in July 1942, employee Lester Halbe met Crawford at his desk, Allen Dean, foreman of the second shift, also being there at the time. Halbe testified that the following then took place: Yes. When I walked over I had a Union button on. He [Crawford] grabbed hold of it and said "What are you doing with this button on?" I told him. He asked "What are you getting for wearing it?" He also asked who gave it to me. I told 1iim; and it got me excited and I said "Well, if you want it, I -will give it to you." I was going to take it off and give it to him. Allen Dean and Walter both laughed. I figured, they were trying to make a fool of me at that time." Halbe thereafter did not wear his union button for about a month. Later in June 1942, at a time when nearly all of the cupl)ing department em- ployees had joined the Union and were attempting to adjust grievances with the respondent, employee Forrest Bailey had a conversation with Crawford. The con- - versation was about the Union Crawford remarked that "Herron and Seeger are causing the trouble in here 1112 Bailey testified further that Crawford said that after the War the respondent would iemember the men who were "strong for this Union Clement J. Tuey testified, without contradiction, that at about the same' time in June 1942; Allen Dean made an obscene reference to the employees who, Dean said, thought by joining the Union could obtain an hourly wage of one dollar. _ The undersigned finds that Dean 'made the remarks attributed to him by' Tuey, thus disparaging and ridiculing the Union and its members. . ' Employees Bailey, and Rollin- Bickell both testified about another incident indi- cating Crawford's efforts to ridicule the Union in the eyes of'the cupping depart- ment employees. They testified that they observed' Crawford approach an em- ployee named C Haun, who was wearing his union button on his pocket flap which was tucked in the pocket ; 'that Crawford lifted the pocket flap, took off the union, button, pinned it on the side of Harm's pocket, then whipped out his hand- kerchief, blew upon the button, and polished it with his handkerchief. ' Haun did not testify. ' Crawford testified he could not recall this incident. The undersigned finds that Crawford engaged in the conduct described by Bailey and Bickell. . 11 I-lalbe's testimony was corroborated by Marce Tucker, who testified he saw and over- heard this incident Crawford testified he could not recall any such event and Dean did not testify The undeisigned, finds that Crawford engaged in the conduct and made the remarks testified to by Halbe. 1L Kenneth D. Heiron and Ranfoid Seeger were union members and leaders in the effort to adjust grievances. ' ,13 Crawford testified he had no recollection of the matter. The undersigned finds that Crawford made the comment testified to by Bailey. WESTERN CARTRIDGE COMPANY 445 The undersigned.finds that the respondent, by inquiring into,the union interests ,of employees, by warning employees not to join the Union, by questioning em- ployees concerning their union membership, and by ridiculing and disparaging the Union and its members, thereby interfered with, restrained, and coerced,its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. The alleged listing of union members , - The complaint alleges that the respondent made a list of its employees who wore union buttons. James Fairless and Guy Siglar, employed in the brass mill, testified that on or about February 6, 1942, a. number of employees in the brass mill wore union buttons for the first time. According to Fairless, Superintendent Day, Yoxall, his assistant, and Edgar Nave, the production foremaii of, the-mill, stopped in the vicinity of his machine and one of the-three men; who Fairless believed to be Day, pointed to Fairless and said: "There is'one of them." Both Fairless and Siglar testified further that the same day, Joseph A. Brandt,, at the time employed,in the personnel office of the brass mill, went through the mill and wrote down the clock numbers on the identification badges worn by the employees. Nave testified that it was not unusual for Yoxall and Day- to make inspection trips throughout the mill. He testified further that he could not recall the day of February 6 exactly or his alleged actions on that day, but specifically denied that on February 6 or any other day he, Day, or Yoxall had toured the mill pointing out union members. Brandt testified that in connection with his duties in the personnel office he did on frequent occasions check the employees in order to get an exact count of the number of men at work. He denied that he limited his count to those employees who wore union buttons or were members of the Union. The testimony of, Fairless and Siglar is at best inconclusive" and the testimony of the respondent's witnesses presents a reasonable explanation for the conduct of its supervisors on about February 6, 1942. The undersigned is of the opinion that this conduct was not instigated by or attributable to the increase in union buttons worn in the brass mill on February 6. Accordingly, it will be recommended that the allegation of the complaint that the respondent made a list of union employees be dismissed. 3 The alleged "blacklisting" of union members ' Subsequent to July 6, 1942, Marce Tucker, Kenneth Herron, and Clifford Smith, formerly employed by the respondent, applied for work at the Chrysler Evansville Ordnance Plant, herein called Chrysler, in Evansville, Indiana. They were , interviewed and theh instructed by A. M. Glenn of Chrysler to obtain releases from the respondent. Thereafter they returned to East Alton to obtain the'necessary releases from S. R. Irish, the respondent's assistant general superintendent. Irish told the men that he could not furnish them a release because the company's records indicated that they had been discharged on July 7, 1942. Tucker and Herron disputed Irish's statement that they had been discharged- and asserted that they had voluntarily quit on July 6, 1942, on which day, as appears herein- after, these employees and others refused to appear for hearing before-the respondent's Discipline Board. Tucker admitted that Irish advised them to tell Chrysler the full'story of their employment severance and that Irish stated he would not stand in the way of their obtaining- further employment and would furnish whatever further information that Chrysler required. '} There was no testimony that Brandb listed only the pet sons who wore or did not wear union buttons 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On or about August 12, 1942, Tucker and Herron , accompanied by Rollin Bickell, returned to Chrysler. They were told that the only thing preventing "their employment was the respondent 's failure to reply to the following telegram from Chrysler: PLEASE ADVISE ABILITY AND CONDUCT AND IF YOU WOULD REHIRE KENNETH D HERRON AND MARCE TUCKER. WIRE COLLECT CHRYSLER EVANSVILLE ORDNANCE PLANT I A M GLENN Herron thereupon telephoned Irish at East Alton and was informed that the respondent had answered the Chrysler telegram. The respondent replied : RgrEL KENNETH D HERRON AND MARCE TUCKER DISCHARGED WITH SIXTEEN OTHERS FOR WORK STOPPAGE SERVICES OTHERWISE GENERALLY SATISFACTORY WOULD NOT REHIRE HERE AT THIS TIME BUT HAVE NO DESIRE TO PREVENT THEIR OBTAINING EMPLOYMENT ELSEWHERE. r WESTERN CARTRIDGE COMPANY16 After this telephone conversation with Irish, Tucker and Herron returned to Chrysler and, according to the uncontradicted testimony of Tucker, were then told that they would not be hired "pending the outcome of the trouble in Western, that that would have to be settled before they coulduse us in any line of work." Irish testified that on or about August 27, 1942, he telephoned Glenn and asked him if the respondent's telegrams had prevented the further employment of Tucker, Herron, and Bickell, and that in reply thereto Gleiin stated that the telegrams did not have anything to do with Chrysler's failure to hire the three men 'Accord- ing to Irish, Glenn explained : "One bad reference would not hold out a man." Chrysler may have had other reasons for its refusal to hire the three men, besides the respondent's statement that they had been discharged for engaging in a work stoppage. In its wire to Chrysler, the respondent did nothing other than to disclose its claimed reason for the discharge of the three men. The under- signed finds that this evidence fails to establish that the respondent did blacklist the employees who had engaged in a concerted refusal, to work on or about July 3, 1942. The additional evidence urged by the Board in support of this issue of the com- plaint may be further briefly summarized. About the middle of August 1942, Clement V. Tuey applied for work to the Wood River Refinery of the Shell Petro- leum Company, herein called Shell, nearby East Alton. In support of his appli- cation, Tuey gave three personal references in addition to disclosing his previous employment at the respondent's plant. The respondent, according to Frank A. Schotters, general plant superintendent, received'a telephone inquiry from Shell with reference to-Tuey and furnished the same general information with respect to Tuey as was furnished Chrysler in the telegram quoted above. When Tuey returned to Shell he was told that he would not be hired because of his "refer- ences." According to Tuey's testimony, Shell did not communicate with two of his references, and the third informed Shell that Tuey was "okay." There is no, evidence that the respondent furnished any further information to Shell regarding Tuey. The undersigned finds that Tuey's testimony alone, or consid- ered in connection with the Chrysler incident, is insufficient to establish the maintenance of a blacklist by the respondent to prevent these employees from obtaining further employment. Hence, it will be recommended that this allega- tion of the complaint be dismissed 16 Similar telegrams relating to Bickell were exchanged by Chrysler and the respondent on August 13 and 14. , WESTERN CARTRIDGE COMPANY 447 C. The discrimination with respect to hire and tenure of employment 1. The events before July 3, 1942 On June 4, 1942, a group of cupping department employees met in the Union's hall in Alton and discussed their working conditions. It was agreed that before their next meeting that they would put their grievances in writing; in order to give every employee in the department an opportunity to read and approve them. On June 9. at the second meeting in the Union's hall, the griev- ances, which had in the meantime been reduced to writing, were again discussed The list of grievances set forth certain dissatisfactions over working conditions within the cupping department, demands for an increase in the hourly rate of pay for machine adjusters and operators. and the elimination of the respondent's wage bracket system.10 A committee of 10 employees representing the various shifts in the cupping department, hereinafter called the Committee, was, elected at this meeting to present the grievance list to the respondent. Hanford Seeger was elected spokesman of the Committee. On June 10, Seeger asked Crawford, foreman of the cupping department, to arrange a meeting with Reuben Lambert, superintendent of the brass specialty division, which included the cupping department Subsequently on June 23, the' Committee met with Lambert and his assistant, John Nolan, and gave them a copy of the grievance list Lambert thereupon stated : "I notice you fellows are wearing green buttons, District 50 buttons. I must say if you are repre- senting District 50 Union you are wasting your time We do not have anything against that particular Union, but will not recognize it until it is designated a bargaining agent rightfully " 17 Lambert was informed, however, that the Committee represented the cupping department and not the Union. Lambert agreed to adjust the grievances that were presented to him, with the exception of those particular grievances that pertained to wages and the bracket system, explaining that lie lacked authority to discuss an increase in wages or the elimination of the bracket system Lambert also stated that in any event it was useless to proceed further with respect to these two matters without' taking them up through the Independent, because of the respondent's contract with the Independent On June 26, another meeting was held between the Committee and Irish, Lambert, and Nolan. Irish read provisions of the agreement executed on February 27, 1941, between the respondent and the Independent, which related to the adjustment of grievances, and remarked that` the Committe was follow- ing the procedure outlined in that agreement. Irish then went on to explain that the bracket system could not be eliminated nor could wage rates be changed in one department alone without further study, in order to avoid conflict with wage levels in other departments.' He added finally that any negotiations' about an increase in wages would have to be undertaken through the independ- ent because of the respondent's contract'with the Independent and that: "until the contract was legally terminated," the respondent intended to abide by it. On July 2, 1942, another meeting was held between the Committee and Irish, Lambert, and Nolan Irish stated that the respondent could not grant wage incieases to the cupping department alone since to do so would create dissension among employees in other departments He also stated that any change in wage rates "would have to finally get an approval" from the independent Irish thereupon suggested three possible methods of handling further wage negotiations: (1) that the respondent present to the Independent with a recom- 16 The wage bracket system fixed minimum and maximum hourly rates of pay within brackets for each woi k classification 17 This finding is based on Seeger's uncontradicted testimony. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mendation for approi al any agreement on wage increases reached between the Committee and the respondent; (2) that the cupping department employees ask the Independent to negotiate for them their requested wage increase; and (3) that there be a joint meeting of two representatives each from the cupping department, the independent, and the respondent. The Committee accepted this' third proposal and the meeting adjourned with the understanding that a further meeting would be held to continue the wage negotiations. Irish told the Committee that it had grounds to support an increase in wages, "that it was likely after we made a proper survey, that adjustments could be made but that in any case that would have, to be approved by the Independent Union." The meeting closed with the understanding, as testified to by Irish, that if he could not arrange the next meeting some day during the week of July 6, then he did not know when he could hold it, but, that there would be no unnecessary delay. The Committee expressed no objection.18 2. The work stoppage of July 3, 1942 The cupping department employees, however, were not satisfied with the out- ,come of this meeting On July 3, (luring the lunch hour, a group of the em- ployees gathered in the metal shed adjoining the cupping department and there decided that unless a definite date was fixed for the next meeting, they would shut down their machines that afternoon and "walk out." Seeger, as spokes- man for the Committee, was told to relay this information to the respondent. About 1:15 p. m., Seeger told Lambert "that,the men in the department con- templated shutting down the.machines unless Mr. Irish and Mr. Schotters and some of the other plant executives gave them a definite date for another meeting on our grievances." Lambert told Irish and Schotters of the stoppage threat. The employees continued restive and told Seeger that the machines would shut down between 2: 30 and 3 that afternoon, unless before then they received some word from the tesponclent concerning the meeting they were demanding. Around 2 p. m , not having heard from Lambert or any of the respondent's other executives, the employees in the cupping department shut off the power on the machines. There is sharp conflict in the testimony as to whether the employees shut off power on their own initiative or whether they did so upon instructions from Crawford Five" Board witnesses, including Seeger, testified that power was shut off after Crawford had given the signal to do so. Crawford testified that he was at work in the tool crib in the cupping department when Seeger came to him between 2: 15 and 2: 20 p. m. and stated: "Walter, we are shutting clown." Crawford denied giving any signal to the employees to shut off power. This testimony was corroborated by two tool crib employees. As the respondent stated ni its oral argument at the close of the hearing, and in its brief, it makes no difference so far as the ultimate issues are concerned whether or not the employees shut down the machines on their own initiative, or on CraR'ford's instructions, since in any event, the employees thereafter refused to return to work The undersigned, therefore, finds it unnecessary to resolve the above-conflict in testimony.19 8 The findings as to Irish's iemaiks are based on his own testimony. 19 A possible motive for Crawford's alleged signal to shut down the machines was to foiestall what the respondent may have feared would deielop into another sit-down strike. In the pievious three months, there had been two sit-down strikes in other departments in the p!apt - By order i ng the shut-down and by escorting the employees out of the building, the respondent would have thwarted the employees from occupying their machines and thus preventing other employees from working them. WESTERN CARTRIDGE COMPANY 449 'Following the stoppage of the machines, the employees on instructions of ,Crawford, without disorder, gathered at the end of the cupping department and were then led by Nolan out of the building-into the adjoining metal shed, where they were told to remain to await the arrival of the respondent' s repre- sentatives. 0Within a few moments, Schotters and Irish appeared, accompanied by Lambert, Haddleton, the personnel director, Crasnoff, superintendent of the ammunition division, and armed guards. Schotters told the employees that the machines were available and that they could resume work at once, but that no meeting date would be fixed until the men returned to work. Clifford Smith, an employee, spoke up and stated that the men would return to work, ill they asked being a date for a meeting to discuss their grievances Schotters again asked whether any of the men wanted to resume work, but there was no response. Thereupon he ordered Nolan td suspend the men. Each of the employees was then given a suspension notice listing the cause for suspension as "Refuses to work" and directing each employee to report for a hearing before the respondent's Discipline Board at 9 a. in. Monday, July 6 20 The identification badges worn by the employees were taken from them and they were then escorted from the plant by the guards. ' As the second shift, due to report for work at 4 p. in. that day, appeared at the plant, they were told by the employees what had happened. Seeger had instructed Arthur L Page, an employee of the second shift, to inform Haddleton that if the respondent would grant the day shift a hearing before the Discipline Board on July 4 and set a definite date for a meeting, the second shift would report for work. Page and employee Clyde Jackson then entered the plant to see Schotters. On their way they met Crasnoff and presented Seeger's propo- sition to him. Crasnoff, ,replied, however, that the day shift was suspended until July 6. At this moment Scbotters appeared Page told him that he wanted to arrange a hearing before the Discipline Board for the morning of July 4 and to have a definite date fixed for the grievance meeting Page also asked if there was any way "the boys could get a hearing in the morning and the second shift come back in to work." Schotters replied that the first shift had struck and, told him to warn the second shift not' to take similar action, but to report for work. Page and Jackson retuined to the employees, who had gathered in the street outside the plant, and relayed Schotters' remarks. The men, including some employees on the third shift who had arrived in the mean- time, decided not 'to report for work. As they stood there, Page observed Irish and Schotters emerging from the plant. Page thereupon went over to Schotters and informed him ". . . they would not come in until the other boys came in." Schotters then replied, "Well, they have struck. You fellows have quit." That gives the fellows [sic] a perfect right to take your name off of the payroll. Schotters then instructed Page to tell the other employees that anyone on 20 The Discipline Board was established in the fall of 1941 , to sit in judgment upon em- ployees and mete out punishment for infraction of plant rules and regulations Its purpose is to take from the immediate toreman or supervisor the right to discharge or discipline an infractions employee and thus make plant discipline unifoini The Board consists of'the general superintendent , the peisonnel director , and the superintendent of the division in which the employee involved is employed, or their alternates. A representative of the Independent sits in on its meetings as an observer although this representative has no right to participate in the Board 's decisions He may , however, ask questions of any employee appearing before the Board In cases involving the smokeless ponder division of the plant, the iespondent permits a representative of the A F of L , which is recognized as a bargaining agent for this division, to'be present. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the second and third shifts not reporting for work would be suspended and would have to appear before the Discipline Board before he was reinstated 2 Following this, a few of the employees on the second and third shifts "entered the plant and reported for work, but a majority of the employees on the second, third, and swing shifts decided not to report. No picket line was established at any time by the strikers, who with a few exceptions were all union members, On the following morning, July 4, Elmer F. Willis, employed on the second shift, telephoned to Crasnoff. Willis told Crasnoff that he represented "a bunch of fellows out of the cupping," and asked if there was any way some agree- ment could be reached that morning so that the second shift could report for work. Cransnoff replied that nothing could be done until Monday., July 6; that the day shift had been discharged ; 'and that employees on the second and third shifts were suspended until 10 a. in. Monday, July 6, when they would be given a hearing before the Discipline Board. Irish testified that when the day shift employees were suspended on July 3, no decision was then reached or discussion held about the final action to be taken against them. He testified : "They had certainly stopped work 'and they had refused on three specific requests to go back to work, and they were suspended for that reason." 3. The request for reinstatement On the morning of July 6, all of the employees on the day shift and the majority of the employees on the later shifts, who had been told to report for a hearing, gathered outside the plant gates. The employees thereupon took a vote and decided that they would not go before the Discipline Board unless all went in a body. As they stood there, Oscar McPherson, captain of the plant guards, ap- proached the group and started to read the names of the employees on the day shift who were to appear before the respondent's Discipline Board. Herron interrupted McPherson and informed him that the employees had decided to appear in a body before the Discipline Board. McPherson replied that the Disci- pline Board would first hear the cases of the 18 day-shift employees. Thereupon Seeger told McPherson to inform the respondent that the employees wished the Committee, which consisted of representatives from all three shifts, to appear before the Discipline Board 'as representative of all the striking employees. McPherson left, returned a few minutes later, and then informed the employees that the respondent would not meet with all employees in a body nor would it meet with the Committee. • The employees thereupon refused to go before the Discipline Board and left. Irish testified that the respondent was ready to receive the first shift in a body before the Discipline Board that morning, but not accompanied by the second or third shifts, for the reason that the respondent considered the offenses to be different, the first shift having been suspended for "refusing to work and insubordination" and the second and third shifts for "absenteeism." On Tuesday, July 7, 1942, the Discipline Board, consisting of Schotters, Haddle- ton, and Crasnoff, met and decided "to discharge the eighteen men" on the day shift. With respect to the second and third .shifts, the Discipline Board had decided the previous day to hear their cases "whenever they appeared, in whatever number they appeared." Two representatives of the Independent, William n Suspension notices were made out the next day, July 4, for employees on the other shifts who did not report to work. The notice lists as the reason for suspension : "Failure to report for duty without reason." These notices were thereafter given to some of these employees when they called at the plant to collect their weekly pay. They were directed to appear before the Discipline Board on July 6, at 10 a. in. WESTERN CARTRIDGE COMPANY 451 Holder, a division representative , and J. D. Chapman, chairman of its executive committee, were present at the meeting of the Discipline Board on July 7. On July 8, Seeger met Haddleton on the respondent's parking lot and told him that the men would like to return to work because they understood production had fallen and that they "would like the company to grant us this hearing date and accept us back in to work " Haddleton replied that under the respondent's rules the day shift had been suspended until July 6 and since they had not ap- peared for a hearing on that day, they were considered discharged. As to the second and third shift employees, Haddleton stated they-had a job any time they wanted to go to work provided they first appeared before the Discipline Board. This conversation was reported to the-strikers. . On July 9, Ernest McDonald, who had remained at home on July 3 because of his wife's illness, telephoned Nolan. Nolan asked McDonald when he was going to return to work. 'The latter replied that he did not want to report -while there was trouble Nolan told McDonald that he could have his job when- ever lie reported, but that he would first have to appear before the Discipline Board. On July 8 it requisition for 22 men was sent to the personnel department and at various, dates between July 8 and July 15, 1942, the respondent hired 22 new employees to fill vacancies created by the work'stoppage of July 3 The jobs of the employees of the second and third shifts were held open and were not filled by hiring new employees. One employee, who was on the second shift, and two others on the third shift appeared before the Discipline Board on July 6 and were reinstated on that date. At various times thereafter down to September 16, 1942, other employees of,the second and third shifts, who appeared before the Discipline Board, were, after hearing, reinstated. ' In all, 34 employees appeared before the Discipline Board and were reinstated Those employees who did not support the strike or who were not at work on July 3 were not suspended. According to Neil Sexton, no union buttons were worn after the reinstatement of these employees. The Discipline Board followed substantially the same procedure in interviewing the striking employees. They were asked why they had not reported for work on July 3; why they thereafter remained away from work ; whether they had engaged in threats or coercive conduct with respect to other employees who did not report for work ; and finally whether they, themselves, had been threatened by other employees. With a few exceptions, the employees stated that they voluntarily absented themselves on July 3 and thereafter remained away from work because of their desire to support the strike or because they sought to avoid trouble with other employees. They denied engaging in any threats themselves or being threatened by anyone else u Irish acknowledged at the hearing that there was not a single instance of violence of any kind arising out of the July 3 dispute The testimony of the employees, as they appeared before the Board, was taken down acid read back to the employees, and they were asked but not required to sign the statements None of the 18 employees on the day shift has been reinstated to his former or other position. 4. Lon Goessman Goessman was employed on July 3, 1942, as a janitor in the brass specialty department. He had been employed about a year. The record is silent as to his union membership or activity. ^ A representative of the Independent appears to have been present at the sessions of the Discipline Board 521 24 7 -43-vol 48-30 452 DECISIONS -OF NATIONAL, LABOR ' RELATIONS BOARD :About 3 o'clock on the afternoon 'of July 3, Nolan ordered Goessman to accom- pany him to the respondent's office. There in the presence of Lambert and Schotters, Nolan accused Goessman of trying to prevent the respondent from fill- ing the positions vacated by the cupping department employees with replace- ments from the brass specialty department. Goessman denied Nolan's accusation. Nolan then suspended Goessman until Monday, July 6, and thereupon wrote out a suspension notice and handed it to Goessman n The notice required Goessman to appear before the Discipline Board at 9 a. in., July 6. Goessman did not appear before the Discipline Board on July 6, and as appears from the respondent's records was discharged on July 7. Sometime later Goess- man received another suspension notice in-the mail. This second notice was not produced. Goessman, however, was granted a hearing on July 31, before a Discipline Board composed of Irish, Nolan, and Merkel, assistant superintendent of the ammunition division. Irish asked Goessman why he had not reported on July 6 to the Discipline Board",and he replied that he understood that he had been charged in his suspension notice with "exciting work stoppage in the cupping department and since the cupping boys" did not report before the Discipline Board on that day, thus depriving him of an opportunity "to have the men in," that he was "supposed to have done this with, or to," he decided to remain away on that account. Nolan again charged Goessman with an attempt on July 3 to prevent the filling of vacancies in the cupping department created by the stoppage. Goessman was asked if he had threatened any employees or heard of any threats made by cupping department employees. He denied knowledge of either and was then asked to sign "an -affidavit" as to what he had said. This he refused to do for fear that Nolan's transcription' of the hearing was "mixed up" Irish said that Goessman 'would be informed by 'mail of the Discipline Board's decision. Thereafter Goessman received no notice of its decision, nor was he thereafter reinstated. Neither Schotters, Irish, Nolan, nor Lambert, who testified, were questioned concerning Goessman's discharge' It is clear that Goessman was accused of an attempt to induce employees in the brass specialty department not to fill the positions vacated by the cupping department employees. Whether he actually made this attempt is not known, since he denied it and the respondent introduced no affirmative proof that he did so. The respondent gave no other reason for Goessman's discharge. As stated above, the respondent contends that it discharged Goessman because he attempted to dissuade employees in the brass specialty department from replacing strikers in the cupping department. There is no evidence that Goessman actually engaged in such conduct. Hence, it appears that he was discharged because the respondent believed he had engaged in this conduct. In view of the total lack of evidence to. support the respondent's defense, the undersigned finds that the respondent in suspending Goessman and thereafter discharging him did so because of its belief in his alleged assistance to the strikers in the cupping department. But even if Goessman had in fact assisted the cupping department employees by attempting to persuade the brass specialty employees not to fill the vacancies the respondent could not legally discriminate against him because of such activity in concert with the strikers. Accordingly the undersigned finds that by discharging Goessman, the respondent discriminated with respect to his hire and tenure of employment, thereby discouraging membership in the Union as well as in labor organizations generally. By this conduct, the respondent Goessman's suspension notice lists as the reason for his suspension , "Consiteing [Inciting ?] men to stop work." WESTERN CARTRIDGE COMPANY 453 interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the, Act 24 Concluding findings with respect to the cupping department employees The respondent in its brief states : "There is no conflict whatever in the testi- mony of the witnesses for the Board and the witnesses for the respondent with respect to what caused the suspension of the eighteen men who quit their work on the 3rd, of July, 1942 . . . what caused the suspension of the men on the second and third shifts . . . and what caused the subsequent discharge of the employees" on the day shift. The respondent also acknowledges in its brief that the 18 men on the day shift "were suspended for but one cause, and that was their refusal to work." The central issue in this case is therefore one of law. Section 2 (9) of the Act defines a "labor dispute" to include "any controversy concerning terms, tenure. or conditions of- employment . . ." The, term "em- ployee" is defined in Section 2 (3) of the Act as "any individual whose work has ceased as a consequence of, or in connection with any current labor dispute or ,because of any unfair labor practice... . The stoppage of work-on July 3, 1942 and the later refusal to return to work was therefore a labor dispute During the pendency of such dispute, the strikers retained their status as employees and were protected by the Act from' any discrimination against them.25 Since the labor dispute starting July 3, 1942, was not caused by unfair labor practices," the respondent was free to replace the strikers with new employees. The respondent was not free, however, to refuse to reinstate the strikers, so long as their places had not yet been filled, merely because they -had engaged in a strike, work stoppage, or other concerted activity.27 Similarly, the respondent was not free to attach any discriminatory condition to their reinstatement.28 Admittedly, on July 6, 1942, when the strikers on all shifts were ready to return ,to work, their places, had not yet been filled. Yet on that day the respondent refused to permit the eighteen men on the first shift to return to work and re- quired them to appear before the Discipline Board. When these eighteen offered to go before the Discipline Board, provided that the Discipline Board would hear all the men in a group, or in the alternative, hear all the men through the Com- mittee, the respondent refused to vary its original demand. As Irish explained, the respondent distinguished between the offenses of the day shift, who had engaged in a work stoppage in the middle of the working day and those on the later shifts who joined the strike, before they were scheduled to go to work The respondent therefore did not unconditionally grant the strikers' request for re- instatement but instead reserved the unilateral- right to decide that certain strikers or perhaps the entire shift of eighteen would not be reinstated. Striking employees, however, may ask, in applying for reinstatement, that "all or none" be reinstated A refusal of the employer to grant such a request violates.the Act, 24 or Rapid Roller Company v N `L R B ,.126 F., (2d) 452, (C C A 7), Cert denied, 11 LRR 236, where the court held that a discharge of two employees because "of their refusal to act as stiikebreakers" was illegal 25 This is true whether of not the strike was caused by unfair labor practices , N. L. R B. Y. Mackay Radio, 304 U. S. 333 The undersigned rejects the contention of counsel for the Board that the strike was, caused by the prior unfan labor practices of the respondent 27TVilson d Co. v. N. L' R. B, 124 F. (2d) 845, (C. C A. 7) 28N L R B V.,Sunshine Mining Co, 7 N L R B 1252, 1269, aff'd. 110 F. (2d) 780 QC C A. 9), Cert. denied, 312 U S 678; Matter. of Newark Rivet Works, etc., 9 N L. R. B. 498, 515; N L R. B v American Mfg Co , 106 F. (2d) 61, (C. C A 2) 4 LRR 570. 454 DECISIONS OF' NATIONAL LABOR. RELATIONS BOARD unless certain of the strikers are disqualified by reason of past misconduct fionn reinstatement.2° Since no such disqualification attaches to any of the strikers in the proceeding, the respondent's reservation of a right to refuse to reinstate cer- tain strikers was 'a refusal to grant the reinstatement' requested. Since the respondent could not legally have discriminated against any of the strikers for their acts in ceasing work on July 3, its insistence that they appear before its, disciplinary body to await, possible discriminatory action was tantamount to a rejection of the request for reinstatement The employees properly inferred that the respondent's refusal to treat them alike, by its insistence that the 18 men on the day shift appear separately before the Discipline Board, was an effort to mete out punishment,'if not discharge, to these 18 men. - The respondent's failure to allow the strikers to return to work on July 6 was a discharge, in violation of Section 8 (3) of the Act 30 Moreover, the respondent does not even contend that it discharged the eighteen day shift men because of their refusal to go before its Discipline Board.' As it reported to the Chrysler Company, the eighteen men were discharged "for, [a], work stoppage " Section 13 of the Act however, provides: "Nothing in this Act shall be construed so as to interefere with or impede or diminish in any way the right to strike." ' A work stoppage which is it concerted refusal to work is a form of strike, action the exercise of which is protected by this section This was the holding in N. L. RA v. American Mfg. Co, 106 F. (2d) 61 [C. C A. 2] where the court said : ." We do not regard the action of these or other employees in standing around the premises for a period of not more than two hours, while an attempt was being made to persuade the Company to its a date for collective bargaining with T. W. O. C., as in the nature of a sit-down strike which would permit the termination of the employee relationship. They certainly were not claiming to hold the premises in defiance of the right of possession of the owner and we regard the case as . no, different from that of an ordinary strike where work has ceased because of an unfair labor practice 'The return to work of the men' on the other shifts was delayed for varying periods after July 6, because of the, respondent's insistence that each appear before the Discipline Board as a condition of reinstatement. This insistence was improper, because the strikers had violated no plant rule or otherwise done anything which justified a disciplinary inquiry. Nor did the respondent have the right to delay the reinstatement while it investigated the conduct of the strikers. There was no reason why such investi- gation could not have been accomplished after reinstatement Actually as has been found there was no misconduct on the part of any striker which would have disqualified him from, reinstatement. The 'respondent therefore illegally postponed the reinstatement of the em- ployees on the other shifts, in violation of Section 8 (3) of the Act The undersigned accordingly finds that the respondent on July 6, 1942, dis- charged ' the `employees on the day shift named in Appendix A, because of their concerted activity, namely a refusal to work arising out of a labor dispute, and thereafter suspended the employees on the `later shifts named in Appendix B because they had participated in a labor dispute. ' 29 See footnote 24, supra • ' In any event, on July 7, 1942, the respondent formally discharged the 18 day-shift strikers ,u Cf. N L. R. B. v Remington Rand, Inc., 130 F. (2d) 919 [C. C. A. 21, 158,^decided September 29, 1942 But see N L R. B v. Condenser Corp, 128 F. (2d) 67 (C C A. 3). See also Matter of Cudahy Packing Company and Local Union No. 60, United Packinghouse Was leers of America, etc, 29 N. L. R. B. 837, 868. WESTERN CARTRIDGE COMPANY 455 Ernest McDonald, who was denied reinstatement although not suspended because he refused to appear before the Discipline Board , is entitled to reinstate- ment with back pay from July 9, 1942, the date on which he requested reinstate- ment, to the date upon which the respondent offers him reinstatement , less any .amount he has earned in the meantime. By these discharges, suspensions, and refusals to reinstate, the respondent discriminated in regard to the hire and tenure of employment of Ernest McDonald .and the employees listed in Appendix A and Appendix B, discouraged membership in the Union, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The violation of Section 8 (2) of the Act The amendment to the complaint alleges that by not disestablishing the independent and by not ceasing to give effect to its agreement with the Inde- pendent, as required by the Board in its Decision and Order of September 16, 1942, the respondent from on or about September 16, 1942, to the date of the issuance of the complaint continued to violate Sections 8 (1) and (2) of the Act. The respondent admits that it has not complied with the affirmative provisions ,of the Board's Decision and Order and states that it has commenced judicial proceedings to obtain a review of such order. The commencement of proceed- ings under Section 10 (b) of the Act does not of course operate as a stay -of the order. Until such time as the order is enforced, modified, or set aside in whole or in part, it stands as the order of the Board requiring affirmative action on the respondent's part. Until the violation is remedied by compliance or otherwise set aside the violation remains a continuing one. The undersigned, however, sees no need to make any finding that the respondent has continued. to violate Section 8 (2) of the Act, or to recommend any additional orders of the Board forbidding such violation. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with its operations 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 and is engaging in unfair labor practices, the undersigned will recommend that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the status quo existing prior to the commission of the unfair labor practices. The undersigned has found that the 18 employees listed in Appendix A engaged in a concerted refusal to work and that the respondent thereafter discriminated against them in regard to their hire and tenure of employment. The undersigned has also found that Ernest McDonald and the 20 employees listed in Appendix B joined in the concerted refusal to work and that the respondent discriminated against them in regard to their hire and tenure of employment. In order to effectuate the policies of the Act, the undersigned will recommend that the respondent offer reinstatement to their former or substantially equivalent posi- tions to Ernest McDonald and those employees listed in Appendix A who have not been fully reinstated. All new employees hired by the respondent after 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 6, 1942; the date of the discrimination, shall, if necessary to provide employ- ment for those to be offered reinstatement, be dismissed. If, thereafter, despite such reduction' in force, there/ is not sufficient employment available 'for, the employees to be offered reinstatement, all available positions shall, be, distributed among the,remaining employees, including those to be offered reinstatement, without discrimination against any employee because of his union affiliation 'or activities, following such system of seniority or other practice'to such extent as has heretofore' been applied in the conduct of the respondent's business. Those employees, if, any; remaining after such distribution, for whom no employ- ment is immediately available, shall' be placed upon a preferential list, and offered employment to their former or substantially equivalent positions as such employment becomes available and before other ' persons are hired for such work, in the order determined among them by such system of seniority or other practice as has heretofore been followed by the respondent. The undersigned will recommend that the respondent make whole the employees listed in Appendix A for any loss of pay they may have suffered by reason of the respondent's discrimination, by payment to each of them of a sum equal to the amount1 which he normally would have earned as wages, from July 6, 1942, to the date of the respondent's offer of reinstatement or placement upon the preferential list hereinabove described, less his net earnings 32 during said period: The back pay for E. McDonald shall begin to run from July 9, 1942 , The undersigned has found that the respondent discriminated in regard to the hire'and tenure of employment of Lon Goessman because of its belief in his alleged assistance to the strikers. The undersigned will recommend that the respondent offer Lon Goessman immediate and full reinstatement to his fo'rrher or substan- tially equivalent position, without prejudice to his seniority and other rights and privileges. It will be further recommended that the 'respondent make him whole for,any loss of pay he has suffered by reason of, his suspension by payment to him of a sum of, money equal to that amount which he would normally have earned as wages from July 3, 1942, the date, of the respondent's discrimination to the date of his offer of reinstatement, less his net earnings' during said period. The twenty employees listed in Appendix B were all reinstated on the dates set opposite their names. With the exception of Bernal Huston, they were all suspended on July 4,' 1942, by the "respondent, and all including Huston, rein- stated thereafter only by appearing before the Discipline Board. The respondent, interposed an illegal condition to their re-entry upon employment which in and of itself constituted an unfair labor practice that threatened to destroy their status as employees of the respondent. Accordingly the undersigned will recom- mend that they be' made whole for any losses of pay each may have suffered from July 6, 1942, the date the respondent imposed the unlawful condition as a prereq- uisite to reinstatement, to the date of their reinstatement. L. Fisher employed on the third shift was ill on July 3 and was not suspended, but did not report for work. Accordingly, it will be recommended that the com- plaint be dismissed as to him. - "By "net earnings " is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful' discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company, etc., 8 N L. R B . 440. Monies received for work performed upon Fedeial, State, county, municipal, or other work-relief projects shall be considered as earnings See Republic Steel Corporation v. N L R B, 311 U S 7 81 See footnote 32, supra. WESTERN CARTRIDGE COMPANY 457 Since it appears that D Hartman and E Welch, employed on the second shift, who worked on July 3, 1942, and did not thereafter join the strike were neither suspended nor discharged; the, undersigned' will recommend- that the 'complaint be dismissed as to them. ' Upon the basis' of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1.,Local No. 12418, District 50. United Mine Workers of America, 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 Lon Goessman, Ernest McDonald and the thirty-eight employees listed in Appendices A and B, thereby discouraging concerted activity and membership in Local No. 12418, United Mine Workers of America, the respondent has engaged in and-is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of,the'Act, the respondent has engaged in and is engaging in unfair labor practices, within'the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor 'practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5 The respondent has not engaged in unfair labor practices, within the'meaning of Section 8 (1) of the Act by writing down the names of its employees who wore 'union buttons of by blacklisting employees because of their concerted activities. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, Western Cartridge Company, a Corpora- tion, East Alton, Illinois, and its officers, agents, successors, and assigns shall: 1. Cease, and desist from :' (a) Discouraging membership in Local No. 12418, District 50, United Mine Workers of America, or any other labor organization of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment ; (b) In any other manner interfering with, restraining,,or coercing its employees in, the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing,,and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act : (a) Offer Lou Goessman, Ernest McDonald and the employees listed in Ap- pendix A, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privi- leges, in the manner, set forth in the Section above entitled "The remedy" ; and place those employees for whom employment is not immediately available upon a preferential list and thereafter offer them employment as it becomes available in the manner set forth in said Section ; (b) Make whole Lon Goessman, Ernest McDonald and the employees listed in Appendix A 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 would 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD normally have earned as wages from the time of his discharge, to the date of the ,respondent's offer of reinstatement or placement on the preferential list as set forth in the Section above entitled "The remedy", less his net earnings " during such period; (c) Make whole the employees listed in Appendix B 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 would normally have earned as wages during the period .from July 6, 1942, to the date, that he was thereafter reinstated, as listed in. Appendix B, less his net earnings "" during such period. (d) Post immediately in conspicuous places in each of the buildings in its plant at East Alton, Illinois 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 recom- mended, that'it cease and desist in paragraph 1 (a) and (b) of these Recom- mendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a), (b) and (c) of these Recommendations; (3) that the respond- ent's employees are'free to become or remain members of Local No. 12418, District 50, United Mine Workers of'America and that the respondent will not discriminate against any employee because of membership or activity in that or any other labor organization ; , (e) Notify the Regional Director for the Fourteenth Region in writing within ten (10) days from the receipt of this Intermediate Report of the steps the respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations,Board issue an order requiring the respondent to take the action aforesaid It is further recommended that,the complaint be dismissed insofar as it alleges that the respondent has engaged in or is engaging in unfair labor practices by making a list or lists of its employees who wore union buttons and by blacklisting its employees because of their concerted activities. It is further recommended that the complaint be disiiiissed as to L. Fisher, D. Hartman, and E: Welch. , - 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 proceeding (including rulings upon all motions or objections) as, it relies upon, together 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 therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. MORTIMER RIEMER, Trial Examiner. Dated November 16, 1942. m See footnote 32, supra. 35 See footnote 32, supra. WESTERN CARTRIDGE. COMPANY 459 C. Ahern L Halbe H., Baker K. Herron R. Bickell R Hunter H. Blackwood C. Kirksey E. Cox L. Martin W. Eppmeyer P. Russell L. Ames, July 31, 1942 F. Bailey, August 3, 1942 B. Bruce, July 30, 1942 C Copley, August 5, 1942 R Donbrow, July 17, 1942 B. Dycus, September 16, 1942 E Pones, July 21, 1942 C. Haun, August 3, 1942 E. Helm, July'31, 1942 W. Holly, July 31, 1942 APPENDIX A APPENDIX B W. Sanders O Seago R Seeger Clifford Smith • M Tucker C. Tuey' W. Howe, August 10, 1942 B. Huston, August 3,1942 C. Jackson, July 21, 1942 E Marshall, July 30, 1942 A. Page, July 31, 1942 N. Sexton, August 3, 1942 L. Strahan, August 6, 1942 E. Strain, July 31, 1942 R. Ufert, July 20, 1942 E. Willis, July 31,,1942