Chicago Steel Foundry Co.

In the Matter of CHICAGO STEEL FOUNDRY COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA , C. I. O. Case No. C-2487.Decided April W,19/3 DECISION AND ORDER Can January 9, 1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirm- ative action as set out in, the copy of the Intermediate Report attached hereto. Thereafter the respondent and the Union filed exceptions to the Intermediate Report and briefs 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 briefs , and the entire record in the case, and hereby adopts the Trial Examiner 's findings except in the respects noted below. 1. The Trial Examiner found that since Adams had recommended the discharge of Sidders prior to the broken spout incident, it played no part in his decision to discharge Sidders. However, the final deci- sion to discharge Sidders was made by Evans and not by Adams, and the incident was in fact considered by Evans and Adams at the confer- ence of June 26 at which the decision to discharge Sidders was finally ,taken. While in view of these facts, we do not agree with the reasoning of the Trial Examiner, we find, nevertheless, that the incident played no part in the respondent's decision to discharge Sidders. The evi- dence shows that the responsibility of Sidders for the incident was not established and that the accident may have been due either to the care- lessness of Craneman Wesner or of Sidders . Moreover, the record establishes that the respondent made no investigation to determine liability for the accident before Sidders was discharged . Under these circumstances, we conclude that the respondent merely seized upon the incident as an additional excuse to justify the discharge. - 49 N L. R. B., No. 17. 100' CHICAGO STEEL FOUNDRY COMPANY 101 2. The Trial Examiner found that the lay-offs of May 20 and-May 21, 1942, were not bona fide but were due to the respondent's determination to discourage membership in the Union. Upon consideration of all the evidence we are satisfied that the respondent's explanation that the lay-offs were due to the excessive production capacity of the squeezer moulders' section in relation to the furnace capacity, and to the initia- tion of the mechanization program with resulting reduction in the floor space of the foundry, is credible. We accordingly reverse the finding of the Trial Examiner and find that ,the respondent's purpose in laying off some employees was not discriminatory. However, we concur with the Trial Examiner's finding that in selecting employees for lay-off the respondent discriminated against nine of the employees because of their union membership and activity. 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 respondent , Chicago Steel Foundry Com- pany, Chicago; Illinois, and its officers, agents, successors , and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in the,International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, C. I. 0., or in any other labor organization of its employees by dis- charging any of its employees or in any other manner , discriminating in regard to their hire or tenure of employment; (b) In any other manner interfering with, restraining, or coercing its employees in_the exercise of their rights to self-organization, to form, join , or assist labor organizations , to bargain collectively with representatives of their own choosing , and to engage in concerted activ- ities 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 William Sidders immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges; (b) Make whole William Sidders for any loss of pay he may have suffered by reason of the respondent 's discrimination against him by payment to him of a sum of money equal to the amount which he nor- mally would have earned as wages during the period from June 26,,, 1942, to'the date of the respondent 's offer of reinstatement, less his net earnings during such period: 102 DECISIONS 'OF NATIONAL' fABO'R RELATION'S BOARD - (c) Make• whole Frazer Carlton, James Cobbin, Clevester Gowder, William Greene, William Hampton,'James Harper,•DeWitt Pleasant, Joe Thomas, and Ulysses Wallace, for any loss of pay they may have; suffered by reason of respondent's discrimiiiation against them by pay- ment to each of a sum of money equal to the amount which he nor- mally would have earned as wages from the date of his lay-off until, the date of his reinstatement, less his net earnings during such period; (d) Post immediately in conspicuous places throughout its plant in Chicago, 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 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) of this Order; and (3) that the respondent's employees are free to become or remain members of International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, C. I. 0., and, that the respondent will not discriminate against any employeees because of membership- or activity in that organization ; ' (e) Notify the Regional Director for the Thirteenth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith; and IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that by laying off Alex Christian, John Brown, Willie Griffin, LeRoy Jackson, and Lester Peters, the respond- ent engaged in unfair labor practices within the-meaning of Section 8 (3) of the Act. INTERMEDIATE REPORT Mr. Russell Packard, for the Board. Pyffe'and Clai ke by Mr. Albei t J Smith, and Jlr. Allen D Holloway, of Chicago, Ill , for the respondent. S Mr. Ben Meyers, of Chicago, III, for the Union. ' S STATEMENT Or THE CASE Upon a fourth amended charge duly filed on November 27, 1942, by Interna- tional Union, United Automobile, Aircraft'& Agricultural Implement Workers of America, C. I. 0., 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 November 27, 1942, against Chicago, Steel Foundry Company, a corporation, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices 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 and notice of hearing thereon were duly served upon the, respondent and the Union. With respect to the unfair labor practices, the complaint as amended at the hearing alleged in substance'that the respondent: (1) discharged Alex Christian on October 31, 1941, denied William Sidders the privilege of working overtime I- •S CHICAGO STEEL FOUNDRY COMPANY , ' 103 after May,20, 1942, discharged William Sidders on June 26, 1942, and has since refused 'to reinstate Christian and Sidders because they joined and assisted .the Union; (2) on May 20 and 21, 1942, laid off the following thirteen employees and thereafter failed to reinstate them until the date set along side of each name, because they joined and assisted the Union : John Brown August 3, 1942 James Harper June 8, 1942, Frazer Carlton August 12, 1942 LeRoy Jackson June 8, 1942 James Cobbin June 22, 1942 Lester Peters August 13, 1942 Clevester Gowder June 8, 1942 DeWitt Pleasant June 8, 1942 William Greene June 8, 1942 Joe Thomas June 17„ 1942 Willie Griffin August 10, 1942 Ulysses Wallace August 6, 1942 ; William Hampton July 20, 1942 1 '(3) from January, 1940 to the date, of the issuance of the complaint, urged, threatened, and warned its employees not to become or remain members of or to assist the Union, interrogated its'employees about the Union, and by deroga- tory remarks indicated its disapproval of and opposition of self-organization of its employees. The respondent's answer, filed December 4, 1942, as 'amended denied the ,commission of any unfair labor practices. Pursuant to notice, a hearing was held at Chicago, Illinois, on December 14, 15,- and 16, 1042, before Will Maslow, the undersigned Trial Examiner, duly 'designated by the Chief Trial Examiner. All of the parties were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues At the close of the Board's case, and again at the close of the enti*e case, the respondent moved to dismiss the complaint as a whole and in addition various parts thereof This motion was denied. A motion made by both the respondent and the attorney for the Board at the close of the case to conform 'the respective pleadings to the evidence adduced was granted. The parties were given until December 23, 1942, to fila briefs, which time was subsequently extended after the hearing to December 28. ' The respond- ent and the Union filed briefs. The parties waived oral argument before the Trial Examiner. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 3 Chicago Steel Foundry Company is a Maine corporation, having its principal office and plant in Chicago, Illinois, where it is engaged in the manufacture, sale, and distribution of steel castings In 1941, it purchased about $200,000 worth of steel, scrap, alloys, sand,, coal, and bricks of which more than 20 percent was purchased and transported from outside of the State of Illinois to its plant within that State. Dining the same period, the total sales of the respondent amounted to about $656,289, of which more than 6,5 percent was sold and trans- ported from its plant in the State of Illinois to points outside that State. • II. THE ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, C. I. 0., is a labor organization affiliated with the Con- ' The findings in this section are based upon the allegations of the complaint, as admitted by the answer. '104 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD gress of Industrial Organizations . Local 214 , affiliated with the Union , is a labor organization whose membership is confined to employees of the respondent. III. THE UNFAIR, LABOR PRACTICES A. Interference, restraint, and coercion In April or May of 1940, the Steel Workers Organizing Committee began to distribute leaflets to employees of the respondent . William Adams, plant super- intendent of the respondent , thereupon summoned each one of the six squeezer moulders employed on the day shift to his office and spoke to him individually. According to Alex Christian , one of the squeezer moulders, Adams asked him whether he had'received one of the leaflets and then, pointing to the union demand for $1 an hour for squeezer moulders contained in the leaflet, reminded Adams that he was being paid more than that rate . A general discussion on union- ism followed during which , according to Christian 's testimony, Adams said: "We don't want no union in here . . . We have ways of getting rid of a union man . . . You realize as far - as having a union in this shop, I Gantt discharge you but I can say you 're making scrap, your work is no good and many other things." Christian testified finally that , as he left the office , Adams remarked: "I don 't think I will have to be afraid of you joining a -union." - Adams admitted at the hearing that he-bad called- the- TJnion leaflet to the attention of-the :sgheezer .moulders individually , -but denied- the other i6inarks. attributed 'to him by Christian , The undersigned- rejects- hisdenials and-credits- Christian's testimony '- __ - - - - --- - ' There was no further attempt to organize the respondent 's employees until May or June 1941, when the Union began its drive . Accoiding to employee William Sidders , Adains and a group of the employees were discussing the Union in the plant at that time. During the discussion, Adams allegedly said : "Well, if the union ever gets in here, there is one place where two people can't be. I will go before the union will ever get back in here. They had it in here once and Mr. Evans [the president of the respondent ] threw it out and it will never get back in here again " Adams testified that lie did not recall such a conversa- tion The undersigned , however credits Sidders' testimony. John Brown , an employee who was hired in September 1941, testified that during the employment interview Adams asked him whether he was formerly employed in a "union shop" ; when Brown replied "No", Adams remarked that there was no union in the shop or union men and that he did not "care for any to be in there " Adams testified : "I never talked union to anyone prior to that" „ but admitted he had questioned Brown about his prior employment. The undersigned credits Brown 's testimony. 2The undersigned found Adams to be an unreliable witness He was vague, loose, and occasionally reckless in his statements, often making positive declarations on points he knew to be material which were contradicted by the iespondent s own records On other occasions he either was deliberately withholding Information on material issues or else has an unusually bad memory He never gave the impression of a witness who had noth- ing to conceal, but rather that of a partisan seeking to justify a corpse of action ITins remaik was not explained at the bearing Brown also testified that in December 1941 he overheard part of a conversation in the timekeeper's office between Adams and some laid-off screw moulders. According to Brown, Adanis said- "Well, I see the Union has got you out here. Now you have to wait to see the Union about getting back your job." Adams admitted having a conversation with some laid-off screw moulders, but otherwise denied the remarks overheardiby Brown. The undersigned is not'satisfied of the accuracy of Brown's recollection and credits Adams' denial Brown testified finally about another conversation lie allegedly overheard in June 1942 between Adams and an unnamed foundry laborer in which the latter was supposedly criticized for "organizing" The undersigned, however, credits Adams' denial of any such criticism. CHICAGO STEEL FOUNDRY COJIPANY 105 The union activity dwindled and then resumed -early in October 1941 Some- time in November 1941, employee Lester Peters asked Adams for a job for the former's brother. According to Peters, Adams replied: "I haven't any openings right at the present time, but if those C I. 0 fellows continue passing those bills out-in front we will have' plenty of openings ,pretty soon." Adams testified, when questioned about this incident, that he could not recall whether Peters had ever solicited employment for his brother, but denied the remarks attributed to him. The undersigned rejects Adams' denial Employee Freeman Watson testified, and the undersigned finds, that some- time in the fall of 1941 lie asked Jack Walsch, the foundry foreman, for a job for the former's son. Walsch replied, that Adams was "sore" at the "colored boys" who were starting a union, and then said to Watson: "Go on, stay out of the union."' About a week before December 7, 1941, two employees, Wellington Jones and Jesse Howard, began to distribute printed leaflets signed "Chairman of Employees Committee" announcing a "mass meetin"g" of the respondent's employees to be held on December 7, at the Black Spider Club in Chicago Employee Frazer Carlton testified he saw Jones giving out such leaflets in the clock house, where employees punched their time cards. Employee William Hampton testified that Howard "went on down the line" during working hours placing the leaflet on each machine and giving them to a group of employees standing from 3 to 10'feet from Foreman Albert Di Girolamo Peters testified that he 'saw Howard making corrections on the leaflet in the foundry office in the presence of Rex Dombowski, foreman of the pattern vault, and added that Howard gave him a leaflet in the office while Dombowski looked on Sidders testified that Jones distributed the leaflets near the time clock from 3: 00 to 4: 30 p in ; that he saw Adams talking to Jones while the latter had an "arm load" of the leaflets and that as Jones gave out the leaflets to employees Adams patted him on the back. Christian testified that he observed Howard and Jones standing inside the clock house distributing the 'leaflet to employees as they left the plant. On Sunday, December 7, 1941, a group of employees visited the Black Spider Club. As they arrived, each was given a cigar around which was wrapped a leaflet signed `By The Employees Of The Chicago Steel And Foundry Company" accusing labor unions of prejudice and hostility towards "colored people". Half of the respondent's force consists of negroes. Whiskey, beer, and cigars were served in the club without charge. A negro member of the Illinois legislature spoke to the employees urging them not to join the'Union and to form a labor organization of their own Various foremen of the respondent attended the meeting including Di Girolamo, Otto Tepke, and the foreman of the screw de- partment When a representative of the Union attempted to speak, Di Girolamo, and Tepke joined in the cry "throw them out " Another leaflet also was dis- tributed at the meeting praising employment conditions for negroes at the respondent's plant and urging negroes not to join a anion. Adams admitted at the hearing that he had seen Howard passing out the Black Spider Club leaflets hi the clock house and had taken no action to stop it. The respondent attempted to justify his acts by referring to the fact that the Union had distributed its leaflets just outside the clock house. The Union's acts, * At the hearing, the respondent introduced in evidence a series of Union leaflets dis- tributed in front of the plant collected by Adams Adams stated at the hearing that lie had never expressed such sentiments to Walsch. The latter was no longer employed by the respondent at the time of the hearing, but the respondent gave no explanation of its failure to call Walsch to the witness stand, J 106 DEICIS1ONS OF NATIONAL LABOR RELATIONS BOARD however, were not on the respondent's property while,Howard's. were. More- over, the respondent's shop rules, which had.been in effect for, years prior thereto, forbade soliciting Union membership on company time and premises., .The undersigned credits the uncontradicted testimony, of Carlton, Hampton, Peters, Sidders, and Christian as to the distribution of the Black Spider Club leaflets On January 2, 1942, mimeographed leaflets on which ballots,were printed were placed near the employees' time cards reading: January 2, 1942 To All Employees: , It has been reported to the Management that several of our employees are soliciting membership in the Union on the Company.'s premises and on Coin- pany time. If this is true it is not only contrary to shop-rules, which have been in effect for years, but it is also contrary to the rules of the C. I O. Union itself. Violators of this rule are subject to immediate dismissal. DAVID EVANS, President.. THE QUESTION IS DO YOU WANT A SHARE IN THE PROFITS OF, THE.COMPANY,.AS POSTED ON THE BULLETIN BOARD DECEMBER 24TH OR Do you want a Union YOU OAN'T HAVE BOTH. PUT AN X IN ONE OF THE SQUARES AND DEPOSIT IN THE BOX A ballot box was placed in the clock house to receive the leaflet-ballots. Al- though the results of the balloting were never announced , tine respondent shortly thereafter distributed a share of its profits to its employees.' , Carlton testified that in the middle of February 1942 Adams called him into his office and asked : "Carlton, what is all this I hear about you and Peters trying to organize the shop?" Carlton was then president , and Peters secretary, of Local 214. Adams then asked . "Well, what good do you think that the C . I. 0 could,do you by getting the C. I O in here ", and, after telling Carlton that the respondent had once loaned an employee Jones $100 for a hospital bill, said: "If something like that happened to you , being one of our old employees, you could get the same favor." Carlton testified that he replied that he did not think much of such a favor working at an "underpaid salary" whereupon Adams remarked : "I could have you and Peters . . . out in the cold right now if I wanted to but I am going to leave you work on for awhile . . . Now you go back out in that shop and don't be talking no union and what not out there ... . Remember now, that I always have a way of getting rid of mess ( sic) when I don't want them around, I always have a way of getting rid of them and beating the law." 8 _ 'Jones, Howard, Tepke, and, Domboski did not testify and Di Giiolamo did not mention the leaflets or the meeting in his testimony. 7 Carlton received about $45 s Adains denied ever having such a conversation with Carlton and testified that In April 1942 Carlton sought him out and complained of being "pushed around" Accord- ing to Adams, he replied that he would investigate whereupon Carlton volunteered, nith- out any solicitation, to report to him who would attend the next union meeting and what took place there, an offer uuhich Adams said lie refused. Cailton, recalled to the witness stand, denied any such conversation He was president of Local 214 at the" time of the alleged conversation. The undersigned rejects Adams' testimony and credits Carlton's account of the February 1942 conversation. CHICAGO. STEEL FOUNDRI COMPANY 107 On May ,19, 1942.a consent election was scheduled under the auspices of the Regional -office of the Board to determine whether or not the employees wished to be represented by the Union for the purpose of collective bargaining About a week before the election members of the Union began to wear union buttons in the, plant Solders testified, and the undersigned finds, that on May 18, 1942, the day before the election, Ed Doherty, the respondent's sales manager, asked him whether he was doing the "right thing" in joining the Union "after this here company went to work and took care of you " ° Employee `William Green testified, and the undersigned finds, that his assistant foreman, Steven Drombrowski, a supervisor, stated the day before the election : "You fellows going to sign away your lives tomorrow." lo Sidders testified that on May 16, 1942', Adorns approached him in the plant and asked hum why he was wearing the Uiuon button, when Sidders replied that everyone else was wearing the button, Adams asked : "What do you think you are going to get out of the union, for joining-the nnion1" According to Sidders, Adams also stilted that he had not thought that Solders was the kind of fellow that would "go against the company" and "we are glad to find out what kind of rats you are." Adams admitted at ,the hearing that lie had observed Sidders wearing a button and'asired him what it was, but denied the other remaiks attrib- uted to him by Sidders. The undersigned rejects Adams' denials and credits Sidders' testimony The election was held on May 19, 1342, and the Union obtained 197 votes or 60 percent of 327 valid votes cast. - On August 24, 1942, the negotiating committee of the Union, which included Peters, met with representatives of the respondent. At the conference, Evans read from a prepared statement in the course of which he made the following remarks. The efforts of the C. I. 0 -U A IV Union to organize this plant have ex- tended over a period of almost two years I will not devote any time to a discussion of the methods used From the start, all efforts were of the "Hoodlum" type No statement was too untrue to be used, no argument to ridiculous and no effort, even coercion which eventually lead (sic) to two of the committee being now under indictment for murder, was too violent to be adopted. • a - a * * s It is to a meeting, composed of men of this character, that I am invited. If this committee represents either the letter or the spirit of the labor law, passed for-the protection of all, not only union labor, then I must part faith with what I have always considered democracy. I am perfectly sure they do not represent the large majority of our em- ployees, who are hai d working, self-respecting, responsible men. I. know this to be true from the experience with the larger part of our employees over a long period of years. The Negio members of this committee do not represent their race. In fact they have given the employment of negro labor in this plant a tre- mendous setback. A plant where they have always been given an equal place with the members of any other race This comes at a time when ° Doherty did-not testify 10 Drombrowski did not testify. 108 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD both National and .local Government is using every effort to promote the employment of negroes and at a time when the relief rolls of the city are still filled with negro families on relief. I don't know why we should be expected to deal with a committee which has among its members draft-dodgers, murderers a`nd criminals, but the fact is we have done so and have even offered a definite proposition as to wages If these wages are agreed upon we are willing to sign a contract which will become effective on the date it is signed." By the notice of Evans distributed to employees on January 2, 1942, by his prepared statement read to the ' negotiating committee on August 24, 1942, by the remarks of Adams to the squeezer moulders in November or December 1940 by his remarks to Sidders and other employees in May or June 1941, by his questioning of Brown in September 1941, by his remarks to Peters in November 1941, by his condonation and approval of the distribution of the Black Spider Club leaflets in December 1941, by his remarks to Carlton in February 1942, by his questioning of Sidders in May 1942, by his remarks in August 1942 in rehiring Carlton and Peters, by the remarks of Walsch to Watson in the fall of 1941, by the. presence of the respondent's foremen at the meeting of December 7„ 1941, by the remarks of Drombrowski to Greene in May 1942. and by the remarks of Doherty to Sidders in May 1942, the undersigned finds that the respondent lias^ interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discharge of Alex Christiana Alex Christian was hired by the respondent in September 1937 and worked continuously for it thereafter until his discharge on October 31, 1941. He was employed in 1941 as a "squeezer molder," i, e., he prepared sand moulds on squeezer machine, being paid on a piece basis. Christian joined the Union on October 21, 1941, and according to his testimony, which the undersigned credits, handed out,leafiets to employees on'his way home, but not in front of the plant,, before his discharge. He testified also that he "signed up" some employees in the Union in front of the plant and also discussed the Union in the plant. Three other employees engaged in similar activity, including Carlton and Peters According to Christian, before he joined the Union, be averaged from $50 to $CO a week, but after he joined he worked on "big cheap paying jobs" The records of the respondent show, however, that from the week ending September 13 to the week ending October 18, 1941, Christian averaged $55 05 a week,'2 whereas he earned $53 55 for the week ending October 25, 1941, and $47 SO for the week end- ing November 1, 1941. - Christian testified that when he began work on the 3: 00 to 11. 00 p in. shift on October 31, 1941, he was asked by his foreman, William Robleski, to make certain "Harvester" moulds, which weighed when completed about 200 pounds u At the hearing, the respondent attempted to show that sonie of Evans ' defamatory remarks were based on fact ; no such justification , however, was offered for the remaining remarks . Evans' statement violates the Act, whether or not an employee was present at the conference Cf. Matter of Federbush Co , etc., 34 N. L. It. B. 539, 547, where the Boaid said: "An employer may make his opposition and hostility to a union known to his employees in many ways other than by stating it to them personally . Max's state- ments, made to the Union's organizer, were of a character normally to be calculated to reach the employees and to discourage them from joining or assisting the Union " 12 His weekly earnings , omitting odd cents , for this period were $60, $52, $ 59, $57, $44, and $55. CHICAGO STEEL FOUNDRY COMPANY 109 and for which the piece rate was 11 cents each. Christian told Robleski either to increase the piece work rate on the Harvester mould or else to assign it to a worker who was paid not on piece, but on a day basis. Robleski gave Christian another job, but 2 hours later notified him of his discharge. The Harvester mould, according to Christian, had once been assigned to him in the spring of 1941, but'had been withdrawn after his protest, although occa- sionally he 'did make them He testified that he had also refused to work on the Harvester job about a week before his discharge, but then agreed 'to and did make a few.1'3 Adams testified that early in the morning of October 31, 1941, Albert Sigel, the respondent's production manager, had given him a note dated October 31 reading: Something has to be done about Alex Christiason (sic) who has refused jobs assigned to him by the schedule clerk and his foreman. Adams thereupon called a conference for 2 o'clock that afternoon attended by Foremen DI. Girolamo, Tepke, Robleski, and Domboski, the schedule clerk. Adams testified he had before him at the conference the following handwritten foremen's complaints, which he said had been left on his desk: Date October 31, 1941, to W E Adams, from Al Di Girolanio $ 200 A Chris- tianson (sic) would not run International Harr, pattern no. 6530A for less than 25 "Rate on pattern 11" Date 10/22/41 To Bill Adams Al Christian would not run job given to him, because of price placed on it. Generally goes over my head for such matters. * * Date 1O 26x4214 To Mr. Adams R. La Rocca. Very often Christen (sic) refused a job the foreman gave to him he wants to pick out his own job and make his own prices, sometimes he made 10.00 or better and ask two hours Day work and still set [says'?] the prices are low. Otto Tepke 1' After hearing the foremen present assert that Christian was "surly" and difficult to get along with, Adams instructed Robleski to discharge Christian. Since Christian started to work on the 3:00 to 11:00 p in. shift, Robleski, before discharging lain, allowed him to work 2 hours, the customary minimum period allowed those who reported for work Di Girolamo, the foreman of the day shift squeezer moulders, testified that oil October 30, 1941, as lie was setting up the work for the next, or 3 to 11 p in. shift of squeezer moulders, he assigned the Harvester mould to Christian. Chris- tian, according to Di Girolanio, said: "I wouldn't run that job for less than a quarter," whereupon Di Girolanio replied: "All right, I have no other job for you. You go out and see Bill [Robleski] " The next morning, October 31, Di Girolamo "Chi istian must have been in ei ror as to the date of this occurrence for the respondent's records show that lie produced no Harvester moulds for at least tiro weeks before his discharge, a fact corroborated by his foreman, Robleski 14 This note is dated one year after Christian's discharge, a fact which is suspicious, but explainable as an unusual but possible error Tepke did not testify 151,a Rocca and Tepke did not testify and the incidents discussed in their notes were not otherwise explained ' La Rocca was a ti of king foreman on Christian's shift at the time. ;110 I DECISIONS OF NATIONAL . LABOR RELATION'S -BOARD made a written complaint to Adams. -Di Girolamo was -not Christian's- foreman and, never, had been He was 22 years old at the time of Christian's discharge and had been made a'foreman in December 1940 He testified that on-three or four occasions he had made written, complaints to Adams about employees 16 , Sigel testified that on the morning of October 31, lie reproached Dombowski, the schedule clerk, for the delay in the harvester job, that Dombowski thereupon told him for the first time that Christian "would not run the job," whereupon Sigel Wrote out his note to Adams. Robleski testified that at the conference he had reported his previous com- plaints about Christian, namely that Christian, was "crabbing about certain jobs all the time " He testified, however, that Christian had never refused outright to- work the Harvester job-and that the last time he had complained to Adams about Christian was 2'niontlis before. He stated finally that Christian ".was all right about the heavy jobs] until about the last two weeks " Adams admitted that moulders frequently talked about the piece rates, and would occasionally complain. The undersigned credits the above testimony of Adams, Sigel; Di Girolamo, and Robleski On November 3. 1941, Christian returned to the'plant' and asked Adams why he had been -discharged During -the discussion, Christian accused Adams ,of discharging him because he was a Union member, which Adams hotly denied- The men were on the verge of a fist fight when they were separated. In view of the negligible activity of-Christian in behalf of the Union, ,the lack of proof that the respondent could reasonably be supposed to have been aware of such activity, and inasmuch as Christian had refused to perform work assigned to him, the undersigned finds that the evidence is insufficient to establish that the respondent discriminated against Christian in regard to his hire or tenure of employment: C The discharge of William Sidde,-s William Sidders was first hired by the respondent in 1928, then after a break in his employment, was rehired in 1931. - He started as a foundry foreman in charge of the night shift and acted as such until 1939 when he became a inciter earning 70 cents an hour. At the time of his discharge on June 26, 1942, he was being paid $110 an hour Sidders joined the Union in the middle of 1941 and thereafter "signed up" about 25 employees during his pinch period (which was around 8: 00 p. in , since he worked on the 3: 00 to 11: 00 p in shift). He was a member of the Union's "bargaining board " As has been found, Adams questioned him about his union button, on May 16, 1942, at which time he referred to Sidders as a rat, while - Doherty,' the respondent's sales manager, chided Sidders two days later for joining the Union. Sidders was in charge, on his shift, of the electric furnace in which scrap iron was melted Only one furnace was in operation in the plant. The molten steel was tapped or poured,thnough a spout into a ladle and from there poured into various sand moulds After cooling, the sand was shaken off and the rough castings sent to the cleaning room. The term "heat" was used to describe both the process of melting down a furnace load of scrap and also the melted steel itself. A "heat" required about an hour and three quarters and resulted in about 0,000 16 Chri^tian, a private in the United States Army who was on leave at the time ofthe hearing, had left Chicago after, testifying and before the respondent called its witnesses. He did not mention the October 30 incident in his testimony. 1 ^ CHICAGO STEEL FOUNDRY ' COMPANY 111 pounds of molten metal The molter was assisted by four helpers who "charged" or filled the furnace, assisted in tapping it, and cleared the pit in which -the ladle rested. The melter was responsible for the quality of the molten steel, which he controlled by regulating the type of scrap entering the furnace and the temperature. 'Trhe melter was likewise required to keep the carbon content of the steel within specified ranges The accepted carbon tolerance for ordinary steel was from '.0025 to 0035 percent on, as it was referred to, from 25 to 35 points. t - On May 20, 1942, the day after the election, Adams called Sidders to his office and warned him that unless he kept the carbon content of his heat within the accepted range he would not work any longer as a melter. Adams at that time showed Sidders a tabulation of his heats prepared by the respondent's metal- lurgist. This tabulation, which was received in evidence, showed that Sidders' heat exceeded the carbon tolerance in 25 out of the 91 Beats he had run in April, 1942, or in 27 percent. Just 2 weeks before the election, Sidders had received an individual increase of 10 cents an hour, the third of such increases since he became a melter On June 17, 1942, one of the graphite electrodes broke off and fell in the furnace while Solders was in charge, which i esulted in sci apping and remelting of the entire heat On June 25, 1942, Adams wrote the following letter to Evans, president of `the respondent- DEAR AIR EVANS I am having considerable trouble and worry over William Sidders, our melter on the 3 to 11 shitt I have gone to him on several ocassions (sic) and talked to him about the (ontrol of his carbon analysis which is coming all the way from 20 to 44 and lie has been told that it must be kept in the 25 to 35 range. The last time I called him into my office, which was on May 20th, I showed hum a record of his heats for the previous month and called his attention to the heats that *ere out of the specified range and told him at that time that, he w 'uld have to do a better job or I would have to replace him. I, asked him if it was not a fair request to have a No 1 melter to he able to meet a carbon range of ten points, and he agreed that it was and that he would be able to do this. Since that time his heats have been approximately 40% off On June 17, 1942, Sidders had trouble with his last heat and broke an electrode which he did not get iemeved from the furnace and, it was his duty to see that the' furnace was in proper condition before the next charge was put in. This lie did not do but says lie asked his helper if everything was o. It and was told that it was, so ordered the charge put in. The electrode was still lying on the furnace bottom and when the charge was put in it buried the electrode in the bottom of the furnace Sidders had started the melt down on this furnace and was finished by Oliver, the succeeding melter. Oliver on taking a test found he had a high carbon heat which was over' 1%. He proceeded to boil the,heat and after considerable trouble found lie could do nothing with the heat so same was pigged He then found the electrode frozen in the bottom of the furnace and it took considerable work to remove it. As this all happened while you were out of town I am writing you a report on it 1 have been very tolerant with Siddeis in many ways and 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have been hesitant about discharging him because of his years of service, but I have lost all confidence in him and feel he must be replaced. The very next day the spout of the furnace was broken off by the ladle while a heat'was being tapped Before the spout could be repaired there was a delay of two to three hours Sidders was then tending the furnace That same day Sidders received a note from 'Adams reading "Your services are no longer required as of this date. The reason for discharge is inetliciency." Adams made the following report on the incident to Evans : To Mr. Evans Date 6/26/42 In connection with my report to you yesterday regarding William Sidders another costly incident has happened. ,On Sidders shift last night at 10' 45 p. in. he was taking a heat out of the pit and allowed the craneman to hook the ladle on the furnace spout tear- ing it off' This caused a delay of 2 hrs. and 45 min Signed W1LLIAhi E ADAMS. On August 24, 1942, during the conference with the Union committee already described,- Evans made the following remark about Sidders Another member, after identifying hunself with the committee, became so extremely negligent in his work on the furnace as to cause three serious accidents in rapid succession which lead to his discharge. (Italics added). Each of these alleged reasons for Sidders' discharge is hereafter discussed. 1. The breaking of the spout On June 25, 1942, as has been found, Adams wrote to Evans that Sidders had negligently allowed the craneman to hook the ladle onto the furnace, as a result of which the spout of the furnace had been torn off Adams had,' how- ever, made no investigation to determine whether Sidders or the craneman was responsible for the lack of coordination, other than questioning the master mechanic, who himself had no personal knowledge of the accident. John Wesner, the craneman, who was called to the witness stand by the respondent, testified on direct examination, however, that he operated the crane which moved the ladle, while the furnace was being tapped, "on my own judg-, ment" and without directions or instructions from the melter. -He explained that he moved the ladle up or down "according to the way the furnace tips." Adams, when this was called to his attention, testified that "in that particular phase of his testimony" Wesner was wrong. Wesner,had not been questioned about the breaking of the spout before Sidders was discharged The under- signed credits Wesner's testimony. The spout had also been broken off the furnace about a year before. In addition, according to the mechanic, it had to be repaired every 2 or 3 weeks- Since Adams had recommended the discharge of Sidders on June 25 before the spout incident had taken place, it obviously played no part in his decision to discharge the melter. Adams admitted that he had made up his mind to dis- charge Sidders "prior to June 25th." - i I - 17 At the hearing, the general counsel for the respondent stated in response to a question from the Trial Examiner that Sidders had been discharged for "insubordination and inefficiency." No insubordination in any form was, however, shown by the respondent at the hearing. CHICAGO STEEL FOUNDRY COMPANY 113 2. The broken electrode On June 17, 1942, a piece,of one of the graphite electrodes broke off inside the furnace. Solders testified that he instructed his helpers to pull the broken pieces of electrode out of Ithe furnace with tongs while he went to get a new electrode, when he returned they showed him the piece which they had recov= eyed and told him there was no more left in the furnace; lie then looked into the furnace himself, but saw no other electrode remnants. Since it was around 11 p in., the, end of his shift, Sidders left the heat to Oliver, the melter on the next shift. Oliver noted during the heat a very high percentage of carbon,'a but could do nothing abort it After the heat was poured, however, he noted a piece of electrode, about 18 inches long and 6 inches in diameter, embedded in the soft bottom of the furnace. That heat was poured into moulds, although the resulting castings thereafter had to be scrapped, i. e., remelted, because of high carbon content. Electrodes would frequently break, according to Oliver, a witness called by the respondent, and occasionally small pieces would fall into the furnace without his being aware of it. It was not easy to see pieces of electrode in the glowing furnace, lie added. It was not unusual for heats to be scrapped because of a carbon variance' Thus Oliver testified it had once happened to him, and according to Julius Roeder, the respondent's metallurgist, "some" heats occasionally had to be scrapped The respondent's records for May and August, 1942, show that a heat was "pigged," i. e scrapped, in each of these months No one was apparently discharged or diciplined because of such scrapped heats. The undersigned finds that although Sidders may properly have been held responsible for the scrapping of the heat, it was at worst a minor lapse, which ordinarily would not have led to Gidder's discharge. As Adams himself admitted, were it not for Sidders' alleged carbon deficiencies, the electrode incident would have been disregarded. _ 3. The alleged carbon variances During Adams' conference with Sidders on May 20, 1942, he had before him a tabulation of Sidders' heats during April, 1942, prepared by Roeder. Adams testified that the tobulation showed that Sidders was deficient in approximately 40 peicent of his heats. He stated that the respondent would only "overlook probably one out of every ten heats, something like that." An analysis of the Roeder tabulation, however, showed a total of 91 heats run by Sidders during Apish, of which 25,1" or 27 percent, were outside of the 25 to 35 point range for carbon 'p "'The melting of the graphite, a form of carbon , would of course increase the caibon content of the heat. "Certain heats'on the tabulation were marked with red crayon . According to Adams, these crayon masks were on the tabulation at the time of his confeielice with Sidders and indicated that the heats were "out of range." It appeals, however, that only 15 out of 91 heats contained such maikings for the caibon The tabulation , however, showed in addition 10 other heats in which the carbon was out of range Although, according to Adams, the discussion with Sidders concerned only the caibon tolerances , the Roeder tabulation also had red crayon masks for out of range manganese, in 15 of the 91 heats In four heats both the carbon and the manganese were checked in red Even if Adams' figure of 40 percent refers to both carbon and manganese variations , the heats out of range checked in red still total only 28 percent. 211 \iaug.uiese violations are disregarded in the above count. 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination Adams was asked howethe other, four melters compared with Sidder during the month of May, 1942 He replied : "I sny they were inferior as far as their ability is concerned" but added that the,quality,of their work was probably "about the same" as that of Sidders. He added thatithe other melters turned out steel of about the same quality as Sidders: in April 1942 and in June 1942 n An analysis of all the heats run during April 1942 by the other melters pre- pared from the respondent's own records shows, however, that out of 199 heats run that month by the other melters, 70, or 35 percent, were outside of the ap- proved carbon tolerance, as compared with-Sidders' record of 27 percent. Adams was asked whether he knew at the time of his conference with Sidders what the other melters were then averaging and replied : "I didn't check it; I couldn't answer you." He was then asked whether he had "any idea at all" and replied, "No, sir " , Adams testified finally that he expected higher standards of Sidders than of the other melters "because he had years of experience as a melter and the others we started as cubs, as trainees." At another point in his testimony, Adams referred to Sidders as the "only" melter, the others being "understudies." Adams was asked on direct examination what was the occasion for the con- ference on May 20 with Solders and testified that so' many complaints were coining it from customers' that lie checked into the matter and "it looked, upon investigating, that Sidders was the predominating figure there in getting the most heats out of the carbon range On April 2, 1942, the metallurgist had made, the following written complaint to Adams. 24 MEMO Date 4/2/42 To Mr Adams. , Dept melt I have talked to Sidders several times about his ,analysis, but he, does not remedy the condition. Something should be' done about it. Perhaps it will help if you talked to him Adams, however, did not confer with Sidders until May 20 1942, the day after the election , nor did he explain the 6 weeks delay in calling to Sidders ' attention the complaint of the metallurgist. 4. Concluding findings Although Roeder complained about Sidders on April 2, 1942, it was not until May 20, 1942, 6 weeks later, that Adams criticized, Sidders for the carbon variances. On that very day Sidders was discriminatorily denied overtime privileges, as hereinafter found, 'for alleged poor workmanship. Yet just 2 weeks before Sidders had received an individual wage increase, an increase received after the complaint made by the metallurgist. Since the broken electrode would normally have been overlooked, all that, Adams relied upon on June 25, 1942, in recommending Sidders' dischaige was the alleged carbon deficiencies. Yet Sidders' record was superior to that of the 22 The complete records for May and June 1942 were not .introduced in evidence. 22 Adams testified he had had such complaints since,lie had been in business 22As has been found , however, Siddeis' record was better than the average of all he other melters in April '+ Roeder testified that he complained about the carbon content directly to Sidders about 40 to 50 times in the fist halt of 1941, whereas he bad complained about 20 times each, td the other melters. , . 1 , CHICAGO STEEL FOUNDRY COMPANY 115 other inelters on that very point. The undersigned does not credit Adams' testimony as to the reasons for the discharge, and in view of the respondent's hostility toward the Union in general and Sidders in particular, finds that Sidders was discharged because of his membership in and assistance to the Union. D. The denial of overtnnc to Sidders On May 20, 1942, the day after the election and on the same day in which Sidders was criticized by Adams for his carbon variances, Sidders reported for work at 1 p. in., 2 hours before his regular starting time Sidders had come in, early at the request of Roeder, the metallurgist; made a week earlier, to repair the silica brick roof of the furnace. ` He had been doing such repair work at overtime rates for the previous 2 years. Roeder stopped him, and told -him he would have no more overtime work on the roofs, because the roofs "had not been standing up as well as they should." Roeder was asked, at the hearing how long before that had he complained to Sidders about the roofs and answered "probably about six months or so." Roeder admitted that he knew on May 20, 1942, that Sidders was a member of the Union. The undersigned does not credit Roeder's testimony that he denied Sidders the opportunity of repairing the brick roofs of the furnace because of poor work- manship and finds that he was denied such'overtime because he had joined and assisted the Union and in order to discourage membership in the Union.23 1. The lay-offs after the election . On May 20 and 21, 1942, immediately after the election, the respondent laid off 23 employees, 16 of whom were thereafter rehired in small groups in the period from June 6 to August 15, 1942 46 Eight of the 23 were squeezer moulders, seven were foundry laborers, and the remaining eight, miscellaneous workers. The complaint, as amended, alleged that six of the eight moulders 27 and all seven of the foundry laborers had been discriminatorily laid off. The respondent then employed about 350 men. Peters testified, and the undersigned finds, that at a meeting of Local 214 held one week before the election, it was decided that the union members would wear union buttons in the plant and thereafter "most" of them did. Of the 13 laid off employees named in the complaint, 10, all who appeared as witnesses, testified and the undersigned finds, that they wore such buttons just before the election, while the respondent stipulated that two others, Ulysses Wallace and LeRoy Jackson, wore such buttons prior to the election Adams admitted that he had seen such buttons in the plant around May 18 Although all of the laid-off squeezer moulders and foundry laborers were mem- hers of the Union, the'Union membership 'among the squeezer moulders at the time of the election was only from 50 to 60 percent, while among the foundry ' 2G Sidders also testified that although before the election he had worked many hours overtime tending his furnace , thereafter he was held to his regular schedule The under- signed , however, accepts the testimony of Adams that, following the election , no overtime was required. ' 26 All of the persons listed in the complaint as having been discriminatorily laid off were rehired. The Union filed an amended charge with the Board on May 29, 1942, after the lay-offs , but before the rehirings. 1 27 The remaining two moulders , Eugene Mingo and Claudelle Prad were likewise members of the Union. Of the eight miscellaneous workers, four were members of the Union 29 As to the thirteenth employee, Joe,Thomas, who did not appear as a witness , Peters testified , and the undersigned finds , that Thomas was both a union member and woie his union button prior to the election 531647-43-vol 49-9 116 'DECISIONS OF NATIONAL LABOR RE'LATION'S' BOARD laborers it was from 65 to 70 percent .29 The president and secretary of the Union were among those laid off. The lay-offs began on the same day that Sidders was reprimanded by Adams and was denied overtime privileges. Adams testified that the reason for the lay-offs was twofold : an alleged overproduction of moulds in relation to furnace capacity and the initiation of a mechanization program in the plant which allegedly reduced the floor space available for the pouring of moulds 30 About 3 to 4 weeks before the election, according to Adams, he had mentioned to Evans that the shop was "being crowded with more moulds than what we could get poured off" and discussed with him the advisability of cutting down the produc- tion of moulds by laying off some men.31 Adams testified that Evans replied not to lay anyone off until after the election "by advice of counsel." At that time Adams knew, there was union organizational activity going on in and outside of the plant. During the week prior to the election the decision to lay off the men was reached, according to Adams. He testified that he instructed the foremen to lay off 2 squeezer moulders on each shift'or 6 altogether temporarily "until we get this installation in or out of the way" and also to lay off 3 or 4 other men on each shift. Adams alleged that he did not select the persons to be laid off, but left the choice up to the foremen, although he did make out the lay-off notices. The accumulation of moulds was cleared up "within about a week," according to Adams, although Foreman Reiter testified that the accumulation was poured off in 2 to 3 days. The undersigned credits Renter's testimony. The actual construction did not start until about 3 days 32 after the lay-offs. It consisted of, according to Adams, the moving of a large jolt roller machine from one side of the foundry to the other, and the installation of a roller-conveyor system and a shake-out grate. To install the grate , according to Reiter , required the excavation of a ditch 8 feet wide and 120 feet long and the pouring of con- crete. A "wheelabrator" machine also was installed and an addition built onto the edge of the shop The above work, Adams testified, "interfered" with the pouring of the moulds. Two employees testified, however, and the undersigned finds, that the excava- tion was made in space not formerly used for pouring off moulds but in an area where rubbish had been stored The construction work continued even after the per sons laid off on May 20 and May 21 were rehired, and according to Adams, as much construction work was carried on after the rehirings as during the lay-off period Thus, after the lay-offs, the roller or conveyor system was installed for the removal of moulds, which formerly had been placed on "rails" and then lifted by the crane. This work, unlike the excavating, did reduce the amount of space available for pouring moulds Yet there were no further mass lay-offs. 21 So Peteis , the secretary of the Union , testified His testimony was not disputed. 80 The respondent 's answer states that the reason for the lay-off was that the respondent "did make changes of a radical nature in its production line , which changes necessitated the shutting down of part of the plant for various periods, including a total shut-down for one week" and omits any reference to the overproduction of moulds At the hearing it was shown that the "total shut down" was for the purpose of allowing employees their annual vacation 81 Di Guolarao testified that "maybe two months before" the election he had complained to Adams that too many moulds were being produced and that he had to find other work for the moulders after they had completed preparing their moulds ' Adams replied : "Let it go for awhile and we will see the outcome of it." S2 The respondent did not explain why, the men were laid, off on Wednesday and Thurs- day, instead of Fiiday, the end of the weekly pay period: CHICAGO STEEL FOUNTDRY COMPANY 117 During the week ending July 4, 1942, the plant shut down to allow the em- ployees a week's vacation. During that week, the furnace was overhauled. The persons laid off were not rehired at one time. Clevester Gowder, a foundry laborer, was rehired on June 13, 1942. Adams testified that Gowder appealed to him for a job because of "the desperate straits he was in at home" and that he thereupon rehired hint as a laborer in the core room, a job different from that he had previously held. LeRoy Jackson, another foundry laborer, who likewise appealed to Adams for work, was rehired on June 13, 1942, as a chipper in the cleaning room, a job different from that he had previously held. Three other foundry laborers, James Harper, DeWitt Pleasant, and William Greene were hired on June 6, 1942, while the remaining two foundry laborers James Cobbin and Ulysses Wallace were rehired on July 20 and August 15, 1942, respectively. The squeezer moulders named in the complaint were all rehired in the period from June 20 to August 8, 1942 3' On the day before lie was rehired, Carlton was called back by Adams to discuss his reemployment. Carlton testified that Adams advised him not to "talk union" among the non-union employees in order to avoid "serious trouble" and also' not to "talk union" in the shop Peters testified that the day before he was rehired in August, 1942, Adams told him not to "bother" the non-union members about the Union and to "slack up on the Union business." Adams alleged be had merely instructed Carlton not to solicit union membership during working hours and denied outright having a conversation with Peters. Adams did not explain why Carlton was singled out for the admonition. The undersigned rejects Adams' denials and credits the testimony of Carlton'and Peters. If the lay-off was due in part to the overproduction of moulds in relation to furnace capacity, as contended by Adams, it is reasonable to assume that such overproduction would result again after the rehiring of the squecz2r moulders. Adams testified, however, that as a result of the overhauling of the furnace early in, July its capacity was increased with the result that more heats could be produced daily. The respondent's records do not, however, bear out this con- tention' Thus from March 31, 1942 to May 12, 1942 (the only records introduced in evidence for the period prior to the lay-offs) there was a total of 99 heats run during 35 working, days, an average of 11.4 a day. From July 20 to Sep- tember 10, 1942 (the only records introduced for the period after the lay-offs) there was a total of 397 heats during 36 working days or an average of 11.0 a day. In the period from August 8, 1942, when the last laid-off squeezer moulder "Five of the dischargees testified that upon their return to work they saw "new faces" In the foundry, i e., persons who had not been employed at the time of the May 20 lay-offs None of these was however a squeezer moulder. Carlton testified at fist that "better than ten" employees had been hired during the'lay-off period; latdr'hefixed the number as more than five. He did not name or otherwise identify these persons Peters testified that "about six to eight" new employees had been hired while he was laid off, but likewise gave no names or identification. Brown testified that about five or six new steel pourers had been hired, he likewise did not know their names Harper testified that "about six to eight" new employees had been hired while he was laid off, but likewise gave no names or identification . Brown testified that about five or six new steel pourers had been hired ; he likewise did not know their names . Harper testified that he saw at least two or three new laborers working in the shake out and gave the name of one as George Davis. Adams testified , on the other hand, that lie had instructed his foremen just before the lay-offs not to employ any new men until these laid off were rehired and that in addition no employees should be transferred from other work into the foundry. He also denied that any new employees had been hired or that other emfployees had been transferiedinto the foundry . DiGirolamo denied any new hiringstor . aily transfers into the foundry while Foreman Reiter likewise denied that any new employees were hired In view of the vague and indefinite testimony as to the "new faces" given by the Board witnesses , the undersigned credits the denials of Adams, DiGirolamo, and Reiter. 118, DELCISION S OF NATIONAL LABOR RELATIONS BOARD was rehired, until September 9, 1942, there was an average of 112, heats run a day. Thus if the lay-offs were due to an excess of squeezer moulders, the lay-offs did nothing-to alleviate the respondent's alleged difficulties. If the lay-offs were, however, more directly due to the'demands of the construc- tion program, then the respondent has failed to explain why its force could be maintained intact after the rehirings, although Adams admitted there was as much construction going on as before the lay-offs., In any event thq respondent failed to show upon what basis or upon what theory nine of the thirteen persons laid off had been selected. Di Girolamo testified that he personally had chosen Peters ands Griffin, squeezer moulders, and Jackson, a pourer, for lay-off and had made his selection by laying off the "most inefficient men", not considering length of service at all. He testified that he had known that Peters was a member of the Union, but disclaimed any knowledge-as to the membership of Griffin and Jackson. Foreman Reiter testified that he had per- sonally selected Brown, a squeezer moulder, and two foundry laborers, whom he could not name, for lay off. Reiter claimed that he had laid off the persons who had been moulding the shortest time. The foreman who laid off Carlton was not called to the stand to explain the latter's,lay-off, although Carlton testified that he enjoyed the greatest seniority in his department. Nor was any other foreman called to the stand to explain the reasons for the selection of the other eight employees laid off. In view of the respondent's deep-rooted hostility towards the Union both preceding and succeeding the lay offs, the fact that every squeezer moulder and foundry laborer laid off was a member of Local 214 of the Union, including its president and secretary, although the percentage of Union members in their departments was only from 50 to 70 percent,' and the fact that neither overproduc- tion of moulds nor the construction program furnished satisfactory explanations for the lay-offs, the undersigned finds that Brown, Carlton, Cobbin, Gowder, Greene, Griffin, Hampton, Harper, 'Jackson, Peters, Pleasant, Thomas, and Wallace were laid off on May 20 and May 21, 1942 in order to discourage membership in the Union. In any event, whether or not the lay-offs of May 20 and May 21, 1942, were bona fide and necessarily occasioned by the construction program, the respondent has failed to show upon what, basis or upon what theory nine of the thirteen employees were selected for lay-off.' The undersigned finds that the respondent utilized the lav-oif to discriminate against these nine employees namely Carlton, Cobbin, Greene, Gowder, Hampton, Harper, Pleasant, Thomas, and Wal- lace, in order to discourage membership in the Union. 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 the 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. as Cf., F. TV Woolworth Co. v. N. L. R. B , 121 F (2d) 658 (C. C. A 2). ss See Press Co. Inc. v. N. L. R. B.,.118 F. (2d) 937 (A1pp. D. C ), where a finding of discrimination was upheld upon the failure of the respondent to explain the basis of the selection of certain union members for discharge : cf., Sperry Gyroscope Company v. N. L. R. B., 129 F. (2d) 992 (C. C. A 2), \Nhere the couit held that an employer "had the burden" of overcoming a presumption raised by prior acts. - CHICAGO STEEL FOUNDRY COMPANY 119. V. THE REMEDY Since it has been found that the respondent has engaged in unfair labor prac- tices, it will be recommended that it cease and desist therefrom and take'afPirm- ative action designed to effectuate the policies of the Act. Since it has been found that discharging William Sidders on June 26, 1942 and denying him the privilege on May 20, 1942 of repairing the furnace roof at overtime rates were unfair labor practices, it will be recommended that the respondent offer him full and immediate reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, including the privilege of repairing the furnace roof at overtime rates, and make him whole for any loss of pay he may have suffered by such illegal discharge and discrimination, by payment to him of a sum of money equal to the amount he normally would have earned as wages from June 20, 1942, the date of his discharge, to the date of the respondent's offer of reinstate- ment, less his net earnings ` during such period. Since it has been found that the respondent illegally laid off each of the fol- lowing thirteen persons, it will be recommended that the respondent make them whole for any loss of pay they may have suffered during the period of lay off set along side of each name, by payment to each of the sum he would normally have earned as'wages during such period, less his net earnings during such period : John Brown___________________________________ May 20 to August 1, 1942 Frazer Carlton________________________________ May 20 to July 20, 1942 James Cobbin_________________________________ May 20 to July 20, 1942 Clevester Gowder_______________________'_______ May 20 to June 13, 1942 William Greene -------------------------------- May 20 to June 6, 1942 Willie Griffin ----------------------------------- May 20 to August 8, 1942 William Hampton ------------------------------ May 20 to July 25, 1942 James Harper_________________________________ May 20 to June 6, 1942 LeRoy Jackson ---------------------------------- May 20 to June 13, 1942 Lester Peters ---------------------------------- May 20 to July 25, 1942 DeWitt Pleasant_____________________ ------------------------------- May 20 to June 6, 1942 Joe Thomas ------------------------------------ May 21 to June 20, 1942 Ulysses Wallace------------------------------- May 21 to August 15, 1942 Upon the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, C. I. 0, and Local 214 of that Union are each labor organi- zations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure and conditions of employment of William Sidders, John Brown, Frazer Carlton, James Cobbin, "By "net earnings" is meant earnings less expenses , such as for transportation, rcom, and board, incurred by an employee in connection ui itb obtaining work, and working else- where than for the respondent , which would . not bave,been incurred but.for, his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenteis and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440 . Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B. 311 U. S. 7. 120 DEiCISIONS• OF NATIONAL LABOR RE LATIONS BOARD Clevester Gowder, William Greene, Willie Griffin, William Hampton, James Harper, LeRoy Jackson, Lester Peters, DeWitt Pleasant, Joe Thomas, and Ulysses Wallace, and thereby discouraging membership in International Union. United Automobile, Aircraft & Agricultural Implement Workers of America, C. I 0., 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 wilhiu 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. By the discharge of and-refusal to reinstate Alex Christian, the respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act. RECOMMENDAT IONS Upon the basis of the above findings of fact and conclusions of law , the under- signed recommends that the respondent , Chicago Steel Foundry Company, its officers , agents, successors , and assigns shall: 1 Cease and desist from: (a) Discouraging membership in International Union, United Automobile, Aircraft & Agricultural Implement Workers of America , C. I 0, or in any other labor organization of its employees , by discharging any of its employees or in any other manner discriminating in regard to their hire or tenure of employ- ment, or any term or condition of employment. ' (b) In any other manner interfering with , restraining . or coercing its em- ployees in the exercise of their rights to self-organization , to form , join, or assist labor organizations , to bargain collectively with representatives of their own choosing, and to , engage in concerted. activity for the purpose of collective bargaining, or other mutual aid and protection , as gtua ranteed in Section 7 of the Act 2 Take the following , af iruative action , which the undersigned finds will effectuate the policies of the Act: (a) Offer William Sidders numediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other right and privileges;, (b) Make whole William Sidders for any loss of pay he may have suffered by reason of the respondent 's discrimination against him by payment to him of a sum of money equal to that which he Normally would have earned as wages during the period from June 26, 1942 to the date of the respondent's offer to reinstatement, less his net earnings during such period ; (c) Make whole John Brown, `Frazer Carlton, James Cobbin, Clevester Gowder, William Greene, Willie Griffin , William Hampton , James Harper, LeRoy Jackson, Lester Peters, DeWitt Pleasant, Joe Thomas and Ulysses Wallace, for any loss of pay - they may-'have suffeied'by reason of respon'dent's discrimination against them by payment to each of a sum of money which he normally would have earned as wages from the date of his lay-off until the date of his reinstatement, less his net earnings during such period, in accordance with the section herein entitled "The remedy" ; (d) Post immediately in conspicuous places throughout its plant in Chicago, 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 CHICAGO STEEL FOUNDRY COMPANY 121 ' not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a) and (b) of these recommendations; (2) that the respondent will take the affirmative action-set forth in paragraph 2 (a), (b), and (c) of these recommendations; (3) that the respondent's employees are free to become or remain members of International Union, United Automobile, Aircraft & Agri- cultural Implement. Workers of,America, C. I. 0., and that the respondent will not discriminate against any employee because of, membership or activities in said-organization ; (e) 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 respondent has taken to comply herewith. It is further recommended that the complaint be dismissed as to Alex Christian. 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 28, 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, Wash- ington, D.'C., an original and four copies of a statement setting forth such ex- % ceptions to the Intermediate Report or to, any other part of the record or pro- ceeding (including rulings upon all motions or objections) as it 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 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. WILL MASLOW, Trial Eccantiiner Dated January 9, 1943.