American Rolbal Corp.

In the Matter of AMERICAN ROLBAL CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE; AIRCRAFT AND AGRICULTURAL IMPLE- MENT WORKERS OF AMERICA , LOCAL 698, C. I. O. Case No. C-2552Decided May 6,19/x.3' DECISION AND ORDER On March 18, 1943, the Trial Examiner filed his Intermediate Re- port in the above-entitled proceedings, findings that the respondent had engaged in and, was engaging in certain unfair labor practices affecting commerce, and recommending that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act, as set forth in the copy of the Intermediate Report annexed hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a brief in support of the exceptions. Oral argument was held before the Board on April 20, 1943. The-. Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committeed. The rulings are hereby affirmed. The Board has considered the Intermediate Report,- the respondent's brief and exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. - ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, American R'olbal Corpo- ration, Brooklyn, New York, its officers, agents, successors, and as- signs shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 698, C. I. 0., as. the exclusive representative of all employees of the respondent, exclusive of supervisory, office 'and,' clerical employees, foremen, assistant foremen, engineers, the chief 49 N. L. R. B., No. 72. 516 0 .,AMERICAN ROLBAL CORPORATION 517 inspector;, and,the confidential employees : Leibovitz, Grossman, and Tarra, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Discriminating in regard to the hire and tenure and condition of employment of any of its employees because of their membership in or activity on behalf of International Union, United Automobile, Aircraft and Agricultural Implement Workers' of 'America, Local 698, C. I. 0., or because they gave testimony under the Act;. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of self-organization, to form, join, or assist labor organizations to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and pro- tection,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) Upon request, bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 698, C. I. 0., as the exclusive representative of all employees of the respondent, exclusive of supervisory, office and clerical employees, foremen, assistant foremen, engineers, the chief inspector, and the confidential employees : Leibovitz, Grossman, •and Tarra, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Offer to Abraham Friend immediate and full reinstatement to his former or substantially equivalent position occupied by him prior to his transfer from the inspection department, without preju- dice to his seniority and other rights and privileges; (c) Make whole said Abraham Friend 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 the date of his discharge to the date of the respondent's offer of rein- statement, less his net earnings during such period; (d) Post immediately in conspicuous places throughout its plant 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 re- spondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) that the respondent will take the affirmative action set forth in para- graphs 2 (a), (b), and (c) of this Order; and (3) that the respond- ent's employees are free to become or remain members of International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 698, C. I. 0., and that the respondent 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD will not discriminate against any of its employees because of member- ship in or activity on behalf of that' organization ; (e) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. INTERMEDIATE REPORT Mr. Cyril W. O'Gomm-an for the Board. Mr. Gustave B Garfield, of New York City, for the respondent. Mr. Julius Droisen, of New York City, for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on December 17,11942,' by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 698, C I. 0, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City), issued its complaint dated January 26, 1943, against American Rolbal Corporation, Brooklyn, New York, 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), (3), '(4), and (5) of the National Labor Relations Act, 49 Stat 449, herein-called the Act. Copies of the complaint togetherlwith 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 that the respondent: (1) on and after April 18, 1942, vilified, disparaged, and expressed disapproval of the Union, interrogated its employees respecting their union affiliations; and urged, persuaded, threatened, and warned its employees to refrain from assisting, joining, or remaining members of the Union ; (2) of May 13, 1942, transferred Abraham Friend to more arduous or less agreeable work and on June 25, 1942, discharged him because he testified on May 12, 1942, in a representation proceeding conducted by the Board, and because of his union membership and activities, and (3) on and after July 28, 1942, re- fused upon request to bargain collectively with the Union which was at all such tines the exclusive representation of the employees, of the respondent within an appropriate unit. On February 5, 1943, the respondent filed its answer admitting certain of the allegations of the complaint with respect to the nature of its business and denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held at New York City from February 25 to 27, 1943, before the- undersigned, Josef L Ilektoen, the Trial Examiner duly designated by the Chief Trial Examiner Tile Board, the respondent, and the Union were represented by counsel and participated in the hearing Full oppor tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded to all parties On the first day of the hearing, the motion of counsel for the respondent to amend its answer so that it alleged that Friend was transferred "because it became apparent 'from all" of Friend's testimony in a prior Board hearing that he was not an efficient inspector, was allowed by the undersigned without objection At the close of the hearing, the undersigned allowed the !notion of counsel for the Board, in which counsel for the respondent joined, to conform the pleadings to the proof in respect to formal matters; counsel for the Board and for the respondent AMERICAN ROLBAL CORPORATION 519 argued orally before the undersigned, and counsel for the respondent thereafter filed a brief with him. - Upon the entire record in the case, and from his observation of the witness, the undersigned makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The respondent, American Rolbal Corporation, is a' New York corporation having its plant and principal place of business at Brooklyn, New York. It is wholly engaged in the manufacture and sale of anplane and precision parts and related products for use in prosecution of the war effort. During the six months prior to May 11, 1942, it used over 30 tons of metal valued at more than $50,000 all of which was shipped to it from States other than New York. During this salve period, it produced finished products weighing in excess of 5 tons, all of which were shipped to States other than New York' At the time of the Bearing, the volume of its operations, the nature of which remained, unchanged, had substantially increased. The respondent admits that it is engaged in commerce, within the meaning of the Act. II. THE ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 698, is a labor organization affiliated with the Congress of Industrial Organizations. It admits employees of the respondent to mem- bership. III. THE UNFAIR LABOR PRACTICES A. Ch?onology of events On April 14, 1942, the Union requested, and the respondent refused it, recog- nition as the exclusive bargaining representative of the respondent's employees. The Union thereafter filed a petition for investigation and certification of rep- resentatives with the Board. The Board conducted a hearing thereon from May 11 to 14 Employee Abraham Friend testified at the hearing on May 12. On May 13, the respondent transferred him from his position as inspector to another job in its plant. On June 11, the Board issued its decision and direction of election' On June 25, the respondent discharged Friend On July 7, the Board conducted an election by secret ballot among the respondent's,employees. The Union won, receiving 110 of the 116 valid ballots counted.' On July 31, the Board certified the Union as the exclusive representative of the respondent's em- ployees for the purposes of collective bargaining.' B. Interference, restiaint, and coercion During the latter part of April 1942, Production Foreman Leo Cooper, of the day shift, addressed 8 or 10 night shift employees at their 10 p. in. lunch period. As employee Norbert Nussbaum testified, Cooper informed the group which grew to 30 to 40 while he was speaking, that President Leo L. Lowy of the respondent ' See 41 N L. R. B. 907, 908. 241N I, R B 907 121 ballots were cast. 42 N. L. R. B. 1207. 520 DEIIISIONS OF NATIONAL LABOR RELATIONS BOARD would never countenance or consent to an outside union in.the plant but would have no objection to an inside union. Cooper, as he testified, further told the employees that in his opinion "it was wrong for them to join up with the union and that the smartest thing would be if they would form their own union without any affiliations on the outside whatsoever."' ° On May 13, during the lunch period in the plant, employee Friend told 15 to 20 employees of the preceding day's developments in the representation bearing. Saul Weiss, vice president of the respondent, as he himself testified, told those present that he had had disagreeable experiences as a union member and that "the [union] leaders were nothing else but a bunch of racketeers." During the latter part of June, at a time when he knew that an election was ..to be conducted among the employees by the Board, Production. Forema n Cooper, as he testified, drafted a petition to the effect that those signing it did not desire "to be associated with any outside union" and personally circulated it in the plant among 75 percent of the respondent's employees.' 'During July 1942, Nussbaum, who was discussing piece work rates with Lowy, Cooper, and Night Superintendent Freund, informed them that he was a member of the Union. He testified that Freund thereupon left the room, immediately returned with a union application card which he tore up, and told Nussbaum, "That's what I think of the union." He further testified that Lowy told him, "You boys want to form a union . . . I'll take the whole union and all of you fellows and throw them out of here " Lowy denied the statement attributed to him and was not asked regarding the acts ascribed to Freund. Cooper testified that he did not see or hear the acts and statements attributed to Freund and Lowy. Freund was not called as a witness. Lowy, whom the evidence reveals to have been extraordinarily hostile to unions, testified that in 1933, when he was managing another factory, he became incensed at a union representative and "threw out the steward, the union and the whole bunch . . . And I kept the factory closed for three years" Upon the entire record, and the credible testi- mony of Nussbaum, the undersigned concludes and finds that the events transpired as testified by him During the early summer of 1942, Production Manager Gerson Ziltzer, as he -testified, informed 10 or 15 employees who inquired of him respecting the coming election to be conducted by the Board on July 7,' that he "didn't think it advisable for them to join an outside union" and advised them to form their own inside union. The undersigned finds that the respondent by the acts and statements of Cooper, Weiss, Freund, Ziltzer, and Lowy the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 'of the•Act. ' C. The discrimination against Friend Abraham Friend was hired by the respondent as an inspector during February 1942 He began work at 50 cents per hour and during March or April, was raised to 60 cents per hour. At the time he was given the increase in pay, Production Manager Ziltzer, according to Friend's undenied testimony which the undersigned credits, • told him that his work, which took him to all parts of the plant, was Cooper, was one of a group including.Vice President, Saul Weiss and:Production Man- ager Gerson Ziltzer who had been associated with President Lowy for many years. He testified that he expressed Lowy's views respecting unions to the employees on-this occa' sion , but that he did so without Lowy's knowledge O The evidence does not disclose what disposition was made of the petition or the num- ber of employees who signed it I He testified that the employees "discussed with me what was coming, up." The under- signed finds that he had reference to the imminent election. - AME'RICAN' ROLBA'L CORPORATION- - 521' "very satisfactory," that he would thereafter be "more' or less in- charge of the . . . actual inspection work being conducted in the inspection department," and that he might in the future be given the title of chief inspector. Friend joined the Union about April 15, and thereafter actively solicited mem- berships therein among his fellow employees About May 1, Ziltzer told Friend not to engage in union activity on company tune." On May 12, as related above, Friend testified in the representation hearing. The evidence indicates that his testimony, given as a witness for the Union, had to do with the question of the appropriate unit and that he based it upon observations made by him in the course of his work of the tasks performed by various employees in the plant. At 4 p m. the following day, Ziltzer called him to Lowy's office where Lowy, accord- ing to Friend's testimony which the undersigned credits, told him that his testi- mony of the preceding day' had exposed him as the previously unknown (to, Lowy) employee who had been active in the plant on behalf of the Union Lowy further stated that such activity revealed by his testimony constituted grounds for his discharge for cause but that because Lowy did not wish to run afoul of the Board, he would merely transfer Friend, who he characterized as a disturbing "factor" in the plant, to another position rather than dismiss hun Lowy, as he himself testified, thereupon ordered Ziltzer to give Friend a position' where he "would be sitting at the machine all day and has no chance to roam around ,the factory." Friend was thereafter 10 set to work in the bushing department without suffering any diminution in pay, where he performed unskilled work breaking bushing corners by means of emery cloth. The process created dust and exhaust blowers, the only ones in the plant, were used on the machine devoted to it. Friend subsequently suffered a finger injury and was assigned to buffing bushings, a task requiring the use of a polishing paste which splattered the operator. The respondent contends and Lowy testified that Friend's testimony revealed him as being derelict in the performance of his duties as an inspector on vital war materials upon the quality of which the lives of members of the armed forces depended and that he was transferred when this fact was brought to light.ii The evidence reveals, however, that Friend was an efficient inspector. Ziltzer so informed him on the occasion of his raise in pay of some weeks before. Chief Inspector Maurice Braude testified that Friend was "absolutely reliable.". He protested Friend's transfer from the inspection department to Ziltzer, "because it was, very difficult to work without him." Ziltzer replied that, Friend was a "trouble maker," and refused Braude's request that Friend be returned to him. Cooper, who testified that Friend was-an average inspector, also related that at the,time of his transfer, Ziltzer told him that it was caused by Friend's "union activities." ' 8 Ziltzer, in answer to a leading question by counsel for the respondent, testified that he also told Friend to refrain from such activity on company property. The undersigned; upon the entire record in the case, and the credible testimony of Friend, finds that Ziltzer did not so instruct Friend 0 Lowy attended the May 12 hearing - - - - .10, Friend , testified at the evening session of the representation hearing on May 13 ,and was absent from work on May 14 in order ,to, attend the hearing on its final day. He began work at his new task on May 15. 11 The respondent introduced into evidence excerpts from . Friend 's testimony, given May 13, after Lowy had ordered him transferred It also , as related above , amended its answer to allege that he was transferred when it ,became apparent from "all" of Friend 's testimony that be was not performing his duties properly. Because the transfer was clearly predi- cated , solely upon his May 12 testimony , the undersigned does not consider his testimony thereafter given to have bearing on the question of the respondent's motivation in making the change. ,522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear from all of the evidence that Friend was a competent worker. - In the liglit of the respondent's hostility to the Union, its notion that Friend was a "trouble maker," and his transfer immediately following his testimony on May 12, the undersigned is convinced and finds, that the respondent did not transfer -Friend because his activities purportedly indicated inattention to his work, but that it was motivated by his union membership and activities and his giving testimony under the Act in doing so. The undersigned finds that Friend's position as an inspector with its attendant prestige and opportunity for advancement, shown by the nature of his duties and Ziltzer's statement to him that he might be given'the title of chief inspector, was more desirable, less arduous, and far more agreeable than the positions to which he was subsequently assigned. The undersigned finds that by transferring Friend from his job as inspector pn May 13, 1942, the respondent discriminated against him in regard to the condition of his employment, thereby discouraging membership in the Union, and that it also discriminated against him because he gave testimony under the Act. Friend thereafter continued to be active on behalf of the Union As related above, on June 11, 1942, the Board ordered that an election be held among the respondent's employees Counsel for the respondent testified, and the under- signed finds, that the respondent refused to "cooperate" with the Regional Office respecting the election and refused to furnish it the names and addresses of its employees in the appropriate unit found 12 Friend, at the request of the Regional Office thereafter obtained the naives and addresses of a number of the employees in the unit.l3 On June 23, outside the plant, he asked employee Urbie Alafonso for her address, but she refused him the information On June 24 he delivered his list of names and addresses to the Regional Office and was absent from work. On June 25, according to Forelady Ann Abolafia, Alafonso 14 excitedly told her that Friend, had. asked her to join the Union, "or else," that when she refused to divulge her address to him he. had told her, "I'll find out where you live," and that she became apprehensive of her safety because her husband was away. •Abolafia informed Ziltzer of the incident Ziltzer thereafter spoke to Alafonso who told him of Friend's questioning.15 Ziltzer then approached Friend in the plant and according to Friend, threatened "to beat him up" because he had been "intimidating girls to join the union." Friend denied the accusation and stated that he had asked for the addresses of the employees at the request of the Regional Office, and testified that Ziltzer thereafter said he was discharged because he was a "troublemaker" and might cause Ziltzer to lose his temper. Ziltzer denied telling Friend that lie would attack him 1e and denied that Friend told -him-of-,the Board's•request for the,-information he had; gathered: He,fui•-; ther testified that he was greatly excited and demanded of Friend "what the idea was," that Friend replied, "That's my business", and that he thereupon told him, "Well, I'll see to it that you don't have any occasion to scare or intimidate any- body else. . . . You're through." Friend thereafter received his pay and left the plant. 12 The respondent based its refusal, according to'its counsel, upon the ground that by furnishing such information at the, Board's request it might waive its constitutional objec- tions to the entire proceedings. 13 This information was necessary to the Board in order that it might properly conduct the election. 14 Alafonso was no longer employed by the respondent at the time of the hearing and was not available as a witness 15 According to Ziltzer, neither she nor Abolafia mentioned to him the "or else" threat purportedly made by Friend to Alafonso. is". . . but it wasn't because I wasn't mad enough to tell him that." AME'R'ICAN ROLBAL CORPORATION 523 The evidence reveals that Ziltzer, after talking to Abolafla and Alafonso, but before speaking to Friend, ordered the littler's pay to be made up by the office. Ziltzer is thus shown to have determined to discharge Friend before speaking to him or giving him opportunity to defend himself against the reports of Alafonso to Abolafla and Ziltzer. Accordingly, the undersigned credits Friend's testimony respecting his conversation with Ziltzer on the day of his discharge. It is clear from the entire record that while the respondent desired to avoid difficulty with the Board in May and therefore transferred Frieiid rather than then discharging him, it nevertheless was merely awaiting a suitable occasion on which to rid itself of hunt His continued union partisanship indulged in in the face of the respondent's extremely hostile attitude toward the Union, and its earlier discrimination against him convince the undersigned that the respondent seized upon the Alafonso incident as a pretext to dismiss him. The undersigned finds that it discharged Friend not because he allegedly intimidated Alafonso, but because of his union membership and activity and because he gave testimony under the Act. D. The refusal to bargain 1 The appropriate unit On June 11, 1942, the Board found a. unit consisting of all employees of the respondent, excluding supervisory, office and clerical employees, foremen, assist- ant foremen, engineers, the chief inspector," and the confidential employees : Leibovitz, Grossman, and Tarra, to be appropriate for the purposes of collective bargaining is The undersigned finds that all employees of the respondent, excluding super- visory, office, and clerical employees, foremen, assistant foremen, engineers, the chief inspector, and the confidential employees : Leibovitz, Grossman, and Tarra, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages; hours of employment, or other conditions of employment, and that said unit 17 The unit alleged to be appropriate in the complaint was identical to that found by the Boaid with the exception that in place of tlie voids "chief inspecLoi" appealed the words "chief engineer " The undersigned finds the deviation from the unit found by the Board to have been an inadvertent error corrected by the motion of counsel for the Board to conform the pleadings to the proof which was duly allowed "The respondent in its answer denied the appropi lateness of the unit and that the Union represented the majority of the employees therein, but admitted that it refused to bargain collectively with the Union as the representative of the respondent's employees The respondent based its contentions as to the unit and iepicscntation-questions on the ground that it was denied opportunity to aigue orally before the Boaid in support of its contentions respecting the appropuate unit and that since it was thereby deprived of due process, the Board's subsequent decision and direction of election, the election, and the certification of representatives "were and are void and of no binding effect upon the re- spondent" - The evidence shows that on May 16, 1942, counsel Poi the respondent re- quested permission of the Boaid in writing to file briefs and present oral argument before it. On May 21, the Board, basing its action upon "the substantial increase in the number of representation cases and the crowded state of its docket", informed him that' it re- gretted its inability to grant his request for oral argument, but granted him leave to file a brief On May 26, counsel for the respondent wrote the Boa) d enclosing copies of his brief and urged the Board s denial of oral argument to him as a deprivation of due process The Board's Rules and Regulations-Series 2, as amended-effective September 6, 1941, and in force at the times in question, did not provide for oral argument before the Board in representation cases as a matter of right As the Board stated in its decision of'June 11, 1942 (41 N L. R. B. 907) " . . . the Company filed a brief which the Boaid has con- sidered " There is no showing that the respondent was deprived of due process in the representation proceeding and the undersigned accordingly finds the respondent's conten- tion to be without merit. ,T524 DECISIONS OF NATIONAL LABOR RELATJONIS BOARD insures to employees' of the respondent the full benefit of. their right to self- organization and to collective bargaining and otherwise effectuates the policies of the Act. ' 2. Representation by the Union of the majority of the employees within the appropriate unit On July 7, 1942, the Board conducted an election by secret ballot among the respondent's employees. As related above, the Union received 110 of the 116 valid ballots counted and on July 31, 1942, was certified by the Board as the exclusive 'representative of the respondent's employees in the °appropriate unit for the purposes of collective bargaining.19 The undersigned finds that on and at all times after July 7, 1942, the Union was the duly designated representative of the majority of the employees in the appropriate unit and that, by, virtue of Section 9 (a) of the Act, the Union was at all times material herein, and now is the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. 3. The refusal to bargain The complaint alleged and the answer admitted that the respondent on July 28, 1942, and, at all times thereafter refused to bargain collectively with the Union upon request. The undersigned finds that the respondent on July 28, 1942, and at all times thereafter, has refused to bargain collectively with the Union as the exclusive bargaining representative of its employees in an appropriate unit, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connectiog with the operations of the respondent set forth 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 ob- strucing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged' in and is engaging in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of-the Act. It has been found that the respondent has refused to bargain collectively with the Union. It will therefore be recommended that the respondent, upon request, bargain collectively with the Union as the exclusive representative of its employees within the appropriate unit. It has been found that the respondent has discriminated in regard to the hire and tenure and condition of employment of Abraham Friend because of his union membership and activities, and because he gave testimony under the Act. The undersigned will therefore recommend that the respondent offer him imme- diate and full reinstatment to his former or substantially equivalent position oc- 's See footnote 18, above. I AMERICAN ROLBAL CORPORATION 525 ,cupied by him before his transfer from the ' inspection department, without prejudice to his seniority and other rights and privileges . The undersigned will further recommend that the respondent make him whole for any loss of 'pay he may have suffered by"reason of the respondents discriminatorily discharging him by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of such discrimination against-him to the date of the offer of reinstatement , less his net earnings '0 during said period. 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. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, Local 698, C. I. 0., is a labor organization, within the meaning of Section 2 (5) of the Act. - 2. All employees of the respondent, exclusive of supervisory, office, and clerical employees, foremen, assistant foremen, engineers, the chief inspector, and the confidential employees : Leibovitz, Grossman, and Tarra, constitute a unit appro- priate for the purpose of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, Local 698, C. I. 0., was on July 7, 1942, and at all times thereafter has been the exclusive representative of all employees of the respondent in such unit for the purpose of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing on July 28, 1942, and at all times thereafter, to bargain collec- tively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 698, C. I. 0, as the exclusive representative r •of its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure, and condition of employ- ment of Abraham Friend, thereby discouraging membership in the Union, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act.' 6. By discriminating against and discharging Abraham Friend because he gave testimony under the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (4) of the Act. 7. 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. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 20 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 the respondent's discrimination against him and the consequent necessity of his seeking employment else- where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R B 440. Monies received for work performed upon Federal. State, county, municipal, or other work- ielief projects shall be considered as earnings. See Republic Steel Corporation v. N. L R B , 311 U. S. 7. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, American Rolbal Corporation, Brooklyn, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, Local 698, C. I 0., as the exclusive representative of all employees of the respondent, exclusive of supervisory, office, and clerical employees, foremen, assistant foremen, engineers, the chief inspector, and the confidential employees : Leibovitz, Gross- man, and Tarra, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Discriminating in regard to the hire and tenure, and condition of employ- ment of any of its employees because of their membership in or activity on behalf of International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 698, C I. 0., or because they give testi- mony under the Act; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join,-or assist labor organizations, to bargain collectively through representatives of their own.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 the undersigned finds will effectuate the policies of the Act : (a) Upon request bargain collectively with International. Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, Local 698, C. I. 0, as. the exclusive representative of all employees of the respondent, exclusive of supervisory, office, and clerical employees, foremen, assistant foremen, engineers, the chief inspector, and the confidential employees : Leibovitz, Gross- man, and Tai . a, with respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Offer to Abraham Friend immediate and full reinstatement to his former or substantially equivalent position occupied by him prior to his transfer from the inspection department, without prejudice to his seniority and other rights' and privileges; (c) Make whole said Abraham Friend for any loss of pay he may have suffered by reason of the respondent's discriminatorily dmschaiging him, in the manner set forth in the Section entitled "The remedy" above, less his net earnings 21 during said period ; (d) Post immediately in conspicuous places throughout its plant and maintain for a period of at least sixty (60) consecutive days from the dale of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct, from which it is recommended that it cease and desist in paragraphs 1 (a), (b), and (c) hereof;' (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a), (b), and (c) hereof; and (3) that the respondent's employees are free to become and remain members of International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 698, C. I 0., and that the respondent will not discriminate against any of its employees because of membership in or activity on behalf of that organization ; . 21 See footnote 20, above. AMERICAN ROLBAL CORPORATION 527 (e) Notify the Regional Director for the Second 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 therewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report the respondent notifies said Regional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. i 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 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; togetlfer 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. JOSEF L. IIEI{TOEN, Trial Examiner. Dated March 18, 1943.