Heat Transfer Products, Inc.

In the Matter of HEAT TRANSFER PRODUCTS, INO. and INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRONWORKERS, A. F. of L. Case No. C-2672.-Decided August 28, 194,3 DECISION AND ORDER On July 12,1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had en- gaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist from the unfair labor practices found and take certain affirmative action, as set out in the copy of the Intermediate Report attached hereto, and that the complaint be dis- missed as to the remaining allegations. Thereafter the respondent filed exceptions to the Intermediate Report and a supporting brief. Oral argument was held before the Board in Washington, D. C., on August 12, 1943. The Board has considered the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were com- mitted. 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, con- clusions, and recommendations of the Trial Examiner, with the addi- tions noted below : 1. In its oral argument before the Board, the respondent stressed its contention, advanced at the hearing herein, that the employees named in the complaint were discharged because they were inefficient. After a careful consideration of the record, we, like the Trial Exam- iner, are convinced and find that the asserted grounds of inefficiency were mere pretexts for the discharge of these employees and that the real reason was their union membership and activities. In mak- ing this finding we are particularly persuaded by the testimony of employees Gentile, Nepa, Pavelchak, and Symonies that their im- mediate superior, Night Foreman Robinson, told them on the evening of March 30 that the seven employees listed in the discharge notice were among the best of his workers. We also regard as significant 52 N. L. R. B., No. 36. 241 242 D'E1CDSQ,ONS OF NATIONAL LABOR RELATIONS B04RD the respondent's conduct at the time of the discharges. Thus, while Robinson and General Foreman Scull pleaded ignorance of the reasons for the discharges when first approached by the employees that evening, Plant Manager Mathews gave as the reason for their discharge alleged reports from Robinson to the effect that they had not been "producing," an accusation which the employees vigorously disputed. Upon the employees' departure from Mathews' office, he summoned Robinson in order, according to Mathews' testimony, "to substantiate the fact that these men were not working." Immediately thereafter the employees were recalled to the office, where Robinson presented each one with specific instances of his alleged deficiencies. 2. The Trial Examiner found that there is not sufficient evidence to support the allegation in the complaint that the respondent discriminatorily discharged Raymond J. Thomas. Although the case is not entirely free from doubt, the failure of the Union to except to this finding prompts us to agree with the Trial Examiner. We there- fore shall order that the complaint be dismissed insofar as it relates to Thomas. 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, Heat Transfer Products, Inc., Simpson, Pennsylvania, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Association of Bridge, Structural & Ornamental Iron Workers, affiliated with the American Federation of Labor, or in, any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Chris J. Gentile, Anthony S. Mancuso, Leo Nepa, John Para, Theodore Pavelchak, and John Symonies immediate and full reinstatement to their former or substantially equivalent positions, FEAT TRANSFER PRODUCTS, ETC. 243 without prejudice to their seniority or other rights and privileges; (b) Make whole Chris J. Gentile, Anthony S. Mancuso, Leo Nepa, John Para, Theodore Pavelchak, and John Symonies for any loss of pay they have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period from March 30, 1943, to the date of the respondent's offer of reinstatement, less his net earnings during said period; (c) Post immediately in conspicuous places throughout its plant at Simpson, Pennsylvania, 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) and (b) of this Order; and (3) that the respondent's employees are free to become and remain members of International Association of Bridge, Structural & Ornamental Iron Workers, affiliated with the American Federation of Labor, and that the respondent will not discriminate against any employee because of his membership or activity in that organization; (d) Notify the Regional Director for the Fourth Region in writing, 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 , insofar as it alleges that the respondent engaged in surveillance, advised employees that it was in possession of a list of union members, and discriminatorily terminated the employment of Raymond J. Thomas, be, and it hereby is, dismissed. CHAIRMtAN M1LLIS took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Geoff? ey J. Cunni ff, for the Board Bedford, Waller, Jones & Darling by Messrs. Charles B. Waller and B. R. Jones of Wilkes-Barre, Pa., and O'Conner & Farber of New York City, for the respondent. STATEMENT OF THE CASE Upon an amended charge duly filed on May 28, 1943, by International Associa- tion of Bridge, Structural & Ornamental Iron Workers, affiliated with the Ameri- can Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Fourth Region (Philadelphia, Pennsylvania ), issued its complaint dated June 11, 1943, against Heat Transfer Products, Inc., New York, New York, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor 549875-44-vol 52-17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 on the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance : (1) that since January, 1943, the respondent has interfered with, restrained and coerced its employees in the exercise of rights guaranteed in the Act by, (a) threatening employees and their relatives that employees would be dismissed if they did not cease their organizational efforts at the respondent's Simpson, Pennsylvania, plant, (b) questioning employees with respect to their union mem- bership and threatening them if they persisted in their efforts to organize the Union, (c) advising certain employees that it possessed a list of union members, all of whom would be discharged if the Union organized the respondent's plant, (d) urging and advising its employees not to join the Union and to cease activi- ties in its behalf under threat of loss of their jobs, (e) warning employees that if the Union organized the respondent's plant it would move its equipment, (f) engaging in surveillance of employees who were attending a union meeting held in Carbondale, Pennsylvania, (g) causing to be circulated a petition among the employees for the purpose of ascertaining which employees were opposed to the Union, urging them to sign the petition and threatening them with loss of em- ployment for refusal to do so, (h) making derogatory remarks about the officers and organizers of the Union and stating that the Union would not be permitted to, organize the respondent's employees and if it was successful that the re- spondent would move its Simpson plant, (i) urging union members to reveal the names of union leaders and, (j) advising certain employees with the inten- tion of discouraging membership in the Union that the respondent was aware of union meetings that had been held; (2) that the respondent on or about March 30, 1943, did terminate the employment of Raymond J. Thomas, Anthony S. Mancuso, Chris J. Gentile, Leo F. Nepa, Theodore Pavelchak, John A. Symonies and John J. Para and has since that date refused to reinstate said individuals because of their membership and activity on behalf of the Union, thereby dis- criminating in regard to their hire and tenure of employment, and (3) that by these acts the respondent interfered with, restrained, and coerced its employees in the exercise of their rights as guaranteed in Section 7 of the Act. The respondent filed its answer dated June 23, 1943, wherein it admitted the jurisdictional allegations of the complaint, denied the commission of the alleged unfair labor practices and averred that it terminated the employment of the individuals named above "because such employees had respectively been guilty of absenteeism, inattention to duties, interference with production and other actions. . . ." Pursuant to notice, a hearing was held on June 24 and 25, 1943, at Wilkes- Barre, Pennsylvania, before Mortimer Riemer, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all the parties. At the close of the hearing the Board moved to amend all pleadings to con-, form to the proof insofar as it related to matters of form. The motion was granted without objection All parties were granted but waived the opportunity to argue orally before the examiner. The respondent alone filed a brief with the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: HEAT TRANSFER PRODUCTS, INC. FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 245 The respondent herein, Heat Transfer Products, Inc., is a Pennsylvania corpora- tion with its principal office in New York, New York. It maintains and operates three plants located at Merchantville, New Jersey, Pottstown, and Simpson, Pennsylvania. The present proceeding is concerned only with the Simpson plant where the respondent is engaged in the manufacture, sale and distribution of heat exchangers, evaporating units and condensers. At its Simpson plant the respondent, during the first 6 months of 1943, pur- chased raw materials valued in excess of $350,000 of which approximately 30 percent was purchased in States of the United States other than the State of Pennsylvania and was shipped and transported into the State'of Pennsylvania from States of the United States other than the State of Pennsylvania. During the same period, the respondent manufactured at the Simpson plant finished prod- ucts valued in excess of $500,000, approximately all of which were shipped and transported from the Simpson plant to and through States of the United States other than the State of Pennsylvania. At the time of the hearing the respondent was exclusively engaged in war production' At the time of the commission of the alleged unfair labor practices the respondent employed approximately 140 em- ployees. II. THE ORGANIZATION INVOLVED International Association of Bridge, Structural & Ornamental Iron Workers, is a labor organization affiliated with the American Federation of Labor, admit- ting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In September 1942, the respondent took over an abandoned plant in Simpson, Pennsylvania and engaged a force of laborers to prepare it for manufacturing operations. By December 7, 1942, the respondent was able to start production with a group of some 12 to 15 employees and by January 1942, its personnel had increased to about 140 employees Labor was recruited locally and only about 30 percent of the total working force had mechanical experience in the re- spondent's manufacturing operations - - The Union started to organize the respondent's employees in the first part of January 1943, and rumors of the Union's presence and its efforts in that con- nection were current in the plant. Sometime in the same month Vito Nepa, one of the first employees hired in September 1942, had a conversation with Joseph R. Mathews, the respondent's plant manager. Vito Nepa's testimony concerning this conversation with Mathews is as follows : That was the day right after the boy [Leo Nepa, his son] got laid off-No; in January was when they got caught the first time; he [Mathews] said they tried to make a union. He says, "Mr. Nepa, I give your boy the job; he tried to go against me" I said, "Mr. Mathews, I don't think so; tile boy never gone out of the house, I think somebody else turned him in." i These findings respecting the business of the respondent are based upon a stipulation entered into at the hearing by counsel for the Board and counsel for the respondent. 246 DR'CLSIIONS OF NATIONAL LABOR RELATIONS BOARD Vito told his son of this conversation . with Mathews and shortly thereafter Leo Nepa spoke to Mathews. The following is his account of the conversation : I,says, "Mr. Mathews, my dad told me that you say I am trying to organize a union up here." He says, "Your name was reported " I says, "That is not so." I says, "I am a family man." I says , "My wife is sick ; I have five children ; I need the job ; and I don't like to cause trouble." He says, "As long as you stay out of trouble we will forget about it." Mathews admitted that he had a conversation with Vito Nepa.' He was not questioned concerning his alleged conversation with Leo Nepa and hence the latter's testimony, as set forth above, stands uncontradicted hr the record. Both Nepas were credible and convincing witnesses, particularly' Leo Nepa. The undersigned credits their testimony and finds that Mathews made the statements thus attributed to him and that the respondent is accountable therefor.' During the same month of January 1943, Mathews called a meeting in his office of about 12 employees representing a cross-section of the working per- sonnel. At the meeting the respondent was represented by Mathews and by W. 0. Evans, plant superintendent. According to the testimony of Anthony S. Mancuso, then employed as a painter , who attended the meeting, Mathews stated to the assembled group that he heard that the employees were "fooling around with a union" and they would be "wise to keep away from it." Man- cuso testified further that Mathews said he would remove any union organ- izers that entered the plant and if the Union succeeded in organizing the employees, the respondent- would be required to put them on three 8-hour shifts instead of the existing system of two 10-hour shifts and that the em- ployees would earn "but $30 a week." Mancuso's testimony is corroborated in its tenor by that of Fred Miller, a welder employed by the respondent. Miller testified he was the last employee to arrive at the meeting ; that in his presence employees were asked by Mathews if they had attended any union meetings ; and that Miller replied for himself that he "wasn't guilty of attending any meeting ." Mathews stated that his information concerning attendance at meetings came from "Somebody on the outside." Miller testified further, that although Mathews stated that he personally was not opposed to the Union, his superiors "might object to having a union up there" and that it was possible "that they would pack the machinery out of there." Evans and Mathews testified on the respondent's behalf concerning this meet- ing. Evans testified that there were rumors of dissatisfaction among the em- ployees ; that the men had asked for wage increases and that it was agreed between Mathews and him that a representative group of employees from both the day and night shifts should be selected and the matter discussed with them. Evans acknowledged that there was discussion at the meeting 2 According to Mathews' version Nepa asked him for a raise and in the course of convei sation mentioned his son Leo . Thereupon Mathews told Vito that Leo was, an unsatisfactory employee and would probably have to be laid off He denied mentioning the Union in the conversation with Vito Nepa. The undersigned does not credit Mathews' testimony 3 The finding above that Leo Nepa' s testimony is not contradicted is subject to this qualification . Mathews, as did all of the respondent's supervisors, denied generally en- gaging in any violations of the Act by answering in the negative all questions framed upon the allegations of the complaint which alleged in detail that the respondent had violated Section 8 (1) and ( 3) of the Act. These general denials are not convincing, have little or no probative value in the undersigned 's opinion and are rejected in the face of specific and trustworthy evidence to the contrary. HEAT TRANSFER PRODUCTS, ii C. 247 about unions and that it was stated that if the employees were organized into a union, the respondent would have to place them on three 8-hour shifts which would result in a pay reduction for the individual employee . It is impossible to tell from Evans' testimony who made these statements because of his use of the pronouns "we" and "they" in relating what was said. He admitted for example that, "We didn't want to have trouble that might change any de- cisions" that had been made by the respondent to move machinery from its Merchantville, New Jersey, plant to the, Simpson plant. Mathews denied asking Miller if he had attended a union meeting and stating that the respondent would remove its machinery if the employees organized. However, he acknowledged that he said something to the "effect" that if a union was formed or if labor difficulties occurred it was possible that the plant machinery would be removed from Simpson and that he did say that if the respondent "had labor troubles that it might happen that the company would decide to do mos£ of their work at the other plants." Although Mathews denied telling any of the employees that they must keep away from union meetings or stating that if the Union organized the employees that their wages would be reduced, he admitted that he remarked that if the Union succeeded in organizing the plant the respondent "would probably" have to work three shifts, thereby reducing the overtime pay of the employees. He testified that this latter statement was not made with any intention of discouraging mem- bership in the Union. From the testimony outlined above and the significant admissions of Mathews and Evans, it is clear that, regardless of the respondent's initial purpose in calling the meeting, it could have had no other effect than to discourage the union activity of the employees. Mathews' suggestion that the respondent might be forced to discontinue its operations if labor trouble arose was a major threat of the use of strong economic compulsion to stop unionization of em- ployees. Even assuming, as Mathews testified, that he had no intention of discouraging union activities, in the absence of specific statements by him to that effect, his relation of labor trouble to union activities, was sufficient to warn the employees that the respondent would not tolerate their concerted activity. In addition, the association of the advent of the Union by Mathews with a pay reduction, and his assertion that unionization would force the respondent to operate three 8-hour shifts was again a warning of the severe economic conse- quences which would follow organization of the plant. The undersigned credits the testimony of Mancuso and Miller and finds that Mathews, the respondent's chief executive at Simpson, made the statements substantially as attributed to him and that the respondent is responsible therefor. John Symonies was hired by the respondent in late November or December 1942, and worked thereafter on the night shift under the supervision of Keith Robinson, the night foreman. Symonies testified that early in March 1943, Robinson said to him, ". . . if there was any union in here Mr. Mathews and the rest of the fellows would get together and they would have five or six trailers come in and move the place away." The undersigned credits Symonies' testimony despite the denial of Robinson and finds that Robinson made these remarks. On the afternoon of March 30, 1943, some of the respondent's employees were invited to meet with union organizers, Joseph L. Downs and Eugene B. Car- roll, at the American Hotel in Carbondale. Among the employees who ac- cepted this invitation were Leo Nepa and Chris Gentile. These two were the last to leave the meeting at about 4: 30 p. in. that afternoon. As they did so 248 DEE'CZSggONS OF N.AxIONAL LABOR RELATIONS BOARD they were seen in the lobby of the hotel by Mathews 4 That_ evening the em- ployment of Gentile, Nepa, and Symonies , who had attended the meeting, and four other employees was terminated.6 The net day, March 31, 1943, James A. Coggins , who had joined the Union on March 27, and attended the American Hotel meeting on March 30, had a conver- sation with Mathews. Mathews remarked that he had heard that Coggins was "doing a lot of talking . .. concerning union." Coggins stated that Mathews' informant was lying and asked who had furnished this information. Mathews declined to reveal its source and then added that the respondent did not "want to have any trouble with labor unions," and if it did experience difficulty, it would "pack up and move out." 6 The undersigned finds that Mathews thereby again indicated the anti-union bias of the respondent. On March 30, 1943, Mathews told the discharged employees that he would grant them a hearing on Friday, April 2.T On this day Gentile, Mancuso, Nepa, and Theodore Pavelchak returned for interviews Mathews sent word to the mem- through the watchman that he would see them individually but not in a group. The men refused to be interviewed individually and left. On the morning of April 3, however, the men returned singly to see Mathews to ask for reinstate- ment to their positions or to obtain some commitment from him as to when they might expect reinstatement . Mathews told Nepa to look for another job and that there was no point in awaiting recall since he could not guarantee him his job. Gentile asked if he would be reinstated after the respondent's alleged shortage of materials had been overcome and was told that no answer could be given to him Pavelchak was told that he might expect reinstatement in a month or two but was given no definite assurance of recall. On the same morning of April 3, union organizers Downs and Carroll met with Mathews and W. D. Pethick the respondent's works manager, at the American Hotel in Carbondale. Based upon the credible and uncontradicted testimony of Carroll concerning this meeting , the undersigned finds that the union represen- tatives demanded reinstatement of the discharged employees and that Pethick told Downs and Carroll that if the respondent had to reinstate the employees it would move its machinery from Simpson and sub-contract its work. When asked if the respondent would recognize the Union if it proved that it represented 51 percent of the employees, Pethick replied that the respondent would not recog- nize any union and that, as far as he was concerned , the discharged employees were not going back to work "and that that was finished business." Pethick did not testify, although present at the hearing ; the undersigned finds that these statements were made by Pethick and are attributable to the respondent. Early in April 1943 Mathews met John Para, who had been discharged on March 30, in a beer garden nearby the latter's home.' During the course of the 4 The complaint alleges that the respondent engaged in surveillance of employees who attended this meeting This issue will be separately consideied hereinafter These seven employees are alleged in the complaint to have been discharged dis- criminatorily. Their cases are discussed below 6 Mathews denied that he told Coggins that he was "doing a lot of talking about unions" but admitted that he said that the respondent 's president did not want any labor trouble . When asked if he told Coggins that the respondent would "pack up and move" 'in the event of labor trouble , Mathews replied , "Not at that time " ° Hereinafter the undersigned discusses the question whether the employees were laid off or dischaiged and for the reasons therein expressed finds that they were discharged. 8 Mathews explained his admitted presence in the beer garden as fortuitous and that while there he was told by Para 's brother that John Para wished to speak tq him and that Mathews agreed to do so Para testified that Mathews sent Para 's brother for him with the request that Para meet with Mathews A resolution of this conflict, i e, whether the conversation was held at the instigation of Mathews of whether it was held in response to Para's request for the meeting is unnecessary in detei'minuig the effect of Mathews' acknowledged statements at the meeting. HEAT TRANSFER PRODUCTS, INC. 249 conversation, Mathews asked Para if any "organizers had approached" him: Para gave a negative response and was then 'told by Mathews to come down to the plant in the morning and that he would be returned to work on the day shift instead of the night shift. The next morning Para went to the plant and the following is an account of his conversation with Mathews at that time : A. I walked in his office and Mr Evans was also there ; and I says, "Before you do any talking, Mr. Mathews," I says, "I want to tell you something :" I says, "Yesterday when you asked me if I had any affiliation with the union and I says, 'No'-but I want to tell you today that I do have, so I wouldn't make a goat out of anybody, if I was to get the job," I says-"if I was to get the job," I says-"if I was to get it back." Q. What did he say? A He says, "That is bad." Q. Well, did you get your job back? A. No. The undersigned finds that by questioning Para concerning union organizers and by refusing reinstatement to Para because of his membership in the Union, the respondent through Mathews again expressed its continuing opposition to the Union. In the week following March 30, 1943, Dana Baer, a machinist employed on the day shift, started the circulation of an anti-union petition in the plant. The petition was not produced at the hearing but all witnesses agreed that its legend asked the respondent's employees to indicate by their signatures that they were opposed to membership in a union. Coggins testified that Robinson, the night foreman, asked him to sign the petition and that it was available in the store- room for signature of those who did not want a union in the plant. Coggins told Robinson that he did not want to sign the petition. Coggins testified further that later that evening Robinson told him that he. was foolish for not signing because if all of the men on the night shift did not sign the petition, "the chances were that the night shift would be laid off " Coggins testified that Fern Weed, assistant night foreman, also told him that he was foolish not to sign the petition. Fred Miller gave testimony on behalf of the Board substantially in accord with that of Coggins. For example, he stated that Robinson asked him to sign the petition and stated that all of the men on the day shift had signed it on the pre- vious day. Miller testified that he was also asked by Weed to sign the petition and that, finally, Robinson said that 10 p. in. was the "dead line" to sign the petition ; that Mr. Evans would call for the petition ; that those who had not signed it by that time would be taken off the night shift and that those who had signed it would be placed on the day shift With respect to the petition Evans testified that he heard about it one after- noon and that he later saw it. He made no effort to suppress its circulation. He testified that the next night Miller told him that he did not sign the peti- tion because he was a member of the A F. of L., whereupon Evans abruptly ended the conversation. Evans denied that he asked any employee to sign the petition although neither Miller nor Coggins testified that Evans had asked them to sign the petition. Robinson admitted that he knew the petition was ,being circulated, that Coggins told him that he did not want to sign and that he replied that it was a matter for Coggins to decide. He denied the rest 0 9 Mathews admitted that he did ask Para if union organizers had approached him and told Para that if he came to the plant he would check Para's case and reinstate him if there was an opening He testified further that he may have told Para that it was too bad that he belonged to the Union. His explanation of this remark at the hearing was that Organizer Downs had told him that all of the employees would have to be reinstated as a group and therefore he could not reinstate Para 250 DiEICbSILONS OF NATIONAL LABOR RELATIONS BOARD e of Coggins' testimony indicated above. Robinson testified further that he told Miller that it' made no difference to him or to the respondent whether Miller did nor did not sign the petition. Weed denied that he had anything to do with the circulation of the petition or that he advised or urged any employee to sign it. Neither Robinson nor Weed made any effort to stop the petition's circu- lation. Mathews first learned of the petition when he found it on his desk, evidently on the morning of the day after its first circulation. At that time it bore the signatures of about 100 employees. Mathews showed the petition to Evans and at a later date returned it to Baer, the employee who had originally started its circulation. With respect to the testimony concerning the circulation of this petition, the undersigned concludes and finds that Coggins and Miller were asked by Robin- son and Weed to sign a petition ; that the respondent utilized the petition to as- certain union sympathy among its employees and regarded the failure or refusal by an employee to sign the petition as indicative of an employee's attitude to- ward the Union ; that none of the respondent's supervisory employees under- took in any way to stop its circulation and thereby sanctioned and condoned, not only its circulation, but the expression of anti-union views contained therein and, that finally, by the respondent's failure to take any steps to dissipate the effects of its circulation among the employees, the respondent further and un- mistakably indicated to its employees its antipathy toward the Union. Despite the definite rejection of the applications for reinstatement of the various employees, Gentile, nevertheless, returned to see Mathews on'April 10, 1943. Mathews said that the matter of reinstatement was not up to him, but that he would talk to Robinson and Evans and let Gentile know the outcome of his discussion in a few days. During the course of the conversation Mathews also said, "You fellows aren't fair to the company ; you are getting after this too fast ; this company just started. We are really giving you a break ; if you work around this territory ; you know we could just as well pick up and move down to one of their other shops. You fellows will all be out of a job.s 10 Gentile and Leo Nepa then called upon Robinson, anticipating that if they spoke to Robinson before Mathews did, Robinson would be more receptive when Mathews inquired concerning the possibilities of reinstatement. Both men testified in substance that they told Robinson that Gentile had seen Mathews who had indicated that the question of their reinstatement was up to Robinson and Evans. They testified further that Robinson said that he then knew that the men had been "laid off" because they tried 'to organize a union and "went at it in the wrong way" and that they should have been more-secretive about their activities. They then told Robinson that they were not the ring-leaders in the Union's efforts to organize the plant and that they had received a "raw deal." They further testified that Robinson then suggested that if the men dis- closed the names of the true ringleaders in union activities they would be re- instate. They refused to disclose names of the union leaders whereupon, ac- cording to the testimony of both men, Robinson suggested that he would name a leader in the Union and that Nepa or Gentile should name another leader. Nepa and Gentile declined this suggestion. Respecting this conversation of April 10, Robinson testified that Nepa and Gentile came to his home on the afternoon of April 10, and that he invited them to enter. Robinson denied all other testimony of Nepa and Gentile. Since Robinson denied that he made the statements attributed to him by Nepa and Gentile during this conversation but did not offer any testimony of his own to indicate what the conversation was otherwise about, the record thus indicated 10 The above findings are based upon Gentile's uncontradicted testimony. Mathews acknowledged that he met and talked to Gentile on April 10 , 1943. - ,HEAT TRANSFER PRODUCTS, MNC.- 251 a detailed version of a conversation presented by witnesses for the Board and a denial without more of these statements by Robinson. There. is no, indication. from his testimony of what the men did discuss. His testimony was neither persuasive nor convincing and in the absence of any further detail, the under- signed credits the testimony of Nepa and Gentile. The undersigned finds that their testimony presents a substantially accurate account of conversations held with Mathews and Robinson on April 10, 1943. The undersigned finds that, by the statements and conduct of Mathews, Evans, Robinson, Pethick and Weed, the respondent interfered with; restrained, and coerced' its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Alleged intei ference, restraint, and coercion The complaint alleged that the respondent in and about January 1943, advised certain of its employees that it was in possession of a list of union members and that all such members would be discharged if the Union attempted to organize respondent's employees. This allegation is supported by the testimony of Man- cuso who testified that at the January meeting called by Mathews, adverted to above, Mathews "had a slip of paper with so many fellows' names on it who already joined the union." Mancuso did not testify that he saw this alleged list and Miller, the only other Board witness attending the meeting, did not testify concerning it. Mathews denied Mancuso's testimony that he possessed such a list of employees. In the absence of more explicit and compelling evi- dence concerning a list of union members, the undersigned is not persuaded by Mancuso's testimony and will recommend hereinafter that this allegation of the complaint be dismissed. - The complaint also alleged that in and about March 1943, the respondent en- gaged in surveillance of a number of its employees who were attending a union meeting at the American Hotel in Carbondale. This allegation is supported by the testimony of Leo Nepa and Chris Gentile, who testified that when they left the meeting sometime after 4 o'clock on the afternoon of March 30, they ob- served Mathews seated in the lobby of the hotel in such a position as to observe them. Gentile testified that the chair in which Mathews sat was dislodged from its accustomed position and so placed as to afford Mathews an opportunity to observe those who descended the stairs into the lobby. With respect to this issue of surveillance and his presence in the lobby, Mathews testified that he went to the hotel at about 3 o'clock on the afternoon of March 30, and remained there until 4:30 waiting for a man named Bazu, an inspector of the American Bureau of Shipping, who was in Carbondale to inspect some of the respondent's completed products. Mathews further testified that he had called for Bazu that morning, taken him to the plant to complete a test and that he called for Bazu at the hotel in the afternoon to return him to the plant for the completion of another test. Mathews admitted that he saw Nepa and Gentile in the hotel and that he sat in the chair facing the stairs. He denied that the chair in which he sat was intentionally placed for purposes of observation ; that he knew that a meeting was being held ; and that he had any intention of spying upon the activities of the employees. The circumstances of Mathews' presence for such an extended period in the lobby in connection with the discharge a few hours later of two of the employees, Nepa and Gentile, that he had observed in the hotel, arouse suspicion that the events were connected, and it might be inferred that the discharges of these two at least, did in fact arise in part out of Mathews' observance of them. The undersigned is not persuaded, however, that Mathews was present in the lobby of the hotel for the purpose of engaging in surveillance of the employees who 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD , attended the meeting. Therefore, it will be recommended hereinafter that the allegation of surveillance be dismissed. C. Discrhnination with respect to hire and tenure of employment The complaint alleges that the respondent, on or about March 30, 1943, ter- minated the employment of Chris J. Gentile, Anthony S. Mancuso, Leo F. Nepa, John J. Para, Theodore Pavelchak, John A. Symonies and Raymond J. Thomas, and at all times thereafter refused to reinstate said employees, thereby dis- criminating in regard to their hire and tenure of employment. In its answer the respondent averred that it terminated the employment of the above in- dividuals "for reasons both economic and personal to the individuals named," and that those individuals were `selected because they had been guilty of absenteeism, inattention to duties, and interference with production. The employees on the night shift start work at about 5:30 p. in. Around C p. in., on the afternoon of March 30, their attention was called to a notice which had been posted sometime between 5:30 and 6 p. in. on the bulletin board. This notice stated, in effect, that due to a shortage of materials it was necessary for the respondent to effect a lay-off of certain employees and thereafter were listed only the names of the seven employees herein involved, including Leo Nepa, Gentile and Symonies who had previously on that afternoon attended the union meeting at the American Hotel. This public message was the first notice given to the employees that their services were to be terminated. . There is substantial agreement in the testimony concerning the events that. immediately transpired after this notice was posted All of the employees named in the notice were union members having joined at various dates be- tween March 27 and March 30, 1943. They asked Ray Scull, • the general fore- man, why they had been laid off when men with less seniority were retained. ss Scull pleaded ignorance as to the cause of the lay-off and told them to con- sult Robinson, the night foreman. Thereupon Gentile, Nepa, Para, Pavel- chak and Symonies, went to see Robinson. According, to their testimony, which is summarized, Robinson told them that he knew nothing about the cause of the lay-off, that he had been given the notice to post and that he was "dumbfounded" because the seven men named thereon were among the best of his workers. 12 Robinson told the men to return to see Scull. Para, incensed by Robinson's inability to clarify the reasons for the lay-off stated that he could not work under such circumstances and went home. The remaining four then returned to see Scull who had in the interim left the plant. Robinson directed the men to remain at work and stated that Mathews and Evans would be in the plant later that evening to explain the reasons for the lay-off. About 8 o'clock the four men saw Mathews in the prescence of Evans and Scull. They asked the reasons for their lay-off and were told that their employment was terminated due to shortage of materials and because it had been reported to Mathews that the seven named employees were not "producing." Each of the four em- ployees present disputed Mathew's assertions concerning his ability as a worker and sought to prove affirmatively that he was in fact an efficient workman. Thereafter they left Mathews' office and returned to their work. Shortly after the men left Mathews' office, Scull was observed beckoning to Robinson and both men then returned to Mathews' office. Immediately there-, after, Robinson called the four men into Mathews' office and on the way into ]l Mancuso and Thomas did not work on March 30, and were not in the group which spoke with Scull. -' Robinson denied that he said he was "dumbfounded" or that the discharged employees were among the best of his workers. The undersigned rejects his denial. HEAT TRANSFER PRODUCTS, INC. 253 Mathews' office , • according to the testimony of Nepa, Gentile , Pavelchak and Symonies , Robinson stated that this was an occasion where he was going to be "made the goat." Robinson's denial that he made any such remark is not credited and the undersigned finds that he made the remark. In Mathews' office the men were told that Robinson was now present to con- front them with definite charges of their failures as workmen and that Mathews' present contentions were based on the reports given to him by Robinson. The men hotly contested the statements of Mathews and Robinson and insisted they could not be criticized for their deficiencies as employees ." In this second meeting with Mathews, each of the men were presented with specific instances of their alleged individual deficiencies. There is agreement among all of the witnesses that the posted notice of March 30, 1943, stated that the men would be laid off. Apparently nothing was said thereafter in the talks with Mathews, Evans and Robinson on that night to indicate that the men were discharged . However, it is clear from findings heretofore made respecting the efforts of certain of the employees to secure reinstatement and from the testimony of Evans concerning a conversation that he had with Gentile and Leo Nepa some time after March 30, wherein he told both men that they were "fired" for cause, that the respondent's decision to terminate their employment was in fact a discharge and not a lay-off. The undersigned so finds. Preliminarily to a consideration of each discharge , attention is again called to the fact that -the , discharged employees, had joined the Union between March 27 and March 30, 1943. It is to be further noted from Mathews' conversations with the Nepas, early in January of 1943 and from the statements of Robinson to Nepa and Gentile after the discharge of the seven employees that the respondent was well aware of the union activity and interest of the employees selected for discharge 14 and the undersigned so finds. - The employees selected for discharge were workers of no particular skill who had been recruited locally by the respondent for its manufacturing opera- tions. Each had been employed from various dates beginning in December of 1942, and remained thereafter in continuous employment down to March 30, 1943 The record is abundantly clear that none had been previously laid off due to shortage of materials. Theretofore, when the respondent was faced with material shortages it had always placed its employees upon makeshift work projects such as cleaning, sweeping floors, and excavating an abandoned canal bed adjacent to the plant The discharge of March 30, 1943, was the first time therefore that the respondent had used a material shortage as an occasion for laying off or discharging employees. At the hearing the respondent urged as reasons for the discharges, the fact that production had slowed down, that it had completed one large job and did not have on hand sufficient material to start a second job , and it was decided to select for discharge those individuals who were not efficient workers. Mathews testified that the seven men named in the complaint were selected "because of the fact that reports had been turned in consistently from their foreman." He testified further that on the morning of March 30, 1943, selection was narrowed down to the seven employees and that there was no antiunion motive in their selection. It is significant to point out that in selecting these seven men Mathews 13 Symonies was so disturbed by Robinson 's accusations that he called him "a God-damn liar." 14 As found above, Mathews, in substance told the elder Nepa that "they tried" to organize a union and warned Leo Nepa to refrain from engaging in organizational activity and Robin- son told Leo Nepa and Gentile that the men had been discharged for organizing "a union." c 254 DEICLSLONS' OF NATIONAL LABOR RELATIONS BOARD relied for his judgment on the verbal reports given to him by Robinson and Evans. The respondent does not keep production records and no documentary evidence was presented to corroborate the alleged production failures of the discharged employees. The undersigned turns therefore to a consideration of the individual, cases and the specific instances cited by the respondent's witnesses to justify the selection of these individuals. Leo F. Nepa Nepa was hired by the respondent on December 17, 1942, as a laborer. He was placed in the respondent's stockroom and was later transferred to work in the assembly department. Nepa joined the Union on March 30, at the, American Hotel and, as heretofore found, had been subject to Mathews' anti- union remarks. Nepa testified that his conduct had never been the subject of. criticism or discipline and at least insofar as lay-off or discharge is concerned, the record substantiates his testimony. It appears that on the second night of Nepa's employment in December 1942, he fell asleep on the job. He was not disciplined but instead was transferred to the assembly department. At the hearing Evans and Robinson sought to justify Nepa's discharge by testifying to those matters which had been previously mentioned by Mathews to Nepa on March 30 They charged Nepa, in addition to falling asleep in December, with an instance where he inserted a rubber gasket instead of an asbestos gasket on a distiller and' with "general things along those lines." -Robinson's'testimony was similar in nature; and he testified that Nepa installed wrong gaskets and that he' had been warned about this on several occasions. Weed admitted, however, that he did not see the mistakes made. Chris J. Gentile Gentile was first employed by the respondent on January 11. 1943, and worked continuously thereafter on the night shift until March 30. He testified that previous to his discharge he was never criticized or disciplined because of the calibre or quantity of his work. Gentile joined the Union on March 30, at the American Hotel. On the evening of March 30, Gentile was told, and at the hearing the respond- ent's witnesses testified, that he was "a slow-motion man" and that on one occasion Gentile incorrectly installed certain "spuds" necessitating that this work be done over again. There is dispute in the record between the testimony of Evans that Gentile installed "spuds" in an improper fashion on 3 or 4 nights and Gentile's own testimony that this occurred on only one occasion, the first night that he was employed. Robinson testified that Gentile installed "spuds" on only one night and improperly adjusted certain coils on other occasions. With respect to Gentile's work on the coils, Robinson testified that after he spoke to Gentile about his work he, Robinson, "Would find one loose every once in awhile." According to Weed, Gentile was slow but he did not experience "too much" difficulty with his work. Gentile acknowledged that on the night of March 30 there was a shortage of tubes in his department John J. Para Para was hired by the respondent on January 8, 1943, and worked continuously thereafter until his discharge on March 30. He testified that there had never been any criticism about his work as an assembler on the night shift. Para joined the Union on March 29, 1943. After receiving notice of his "lay off" and his inability to obtain a satisfactory answer from Robinson as to the reasons HEAT TRANSII'ER PRODUCTS, C. 255 therefor, he left the plant on the night of March 30. Hence, he was- not present during the conversation with Mathews and apparently no effort was ever made to justify his discharge prior to the hearing. Following his dis- charge, Para was asked by Mathews whether he had been approached by any "organizers" and when he disclosed his union affiliation was refused rein- statement. ,At the hearing the respondent asserted that Para was selected for discharge because when first employed he was put to work in the tool room and taken off this job because he did not like it and that it was thereafter reported that Para was never satisfied with his work Robinson testified that although he- had no fault to find with Para's work, he was selected for discharge because of his refusal on or about March 15, 1943, to carry a door weighing about 90 pounds.. Robinson testified further that Para after first refusing to carry the door there- after did so. Para in explanation of his refusal testified that the department floor was crowded with material and there was a crane available for that partic- ular purpose. He admitted that employees carried doors but "not under the conditions that was there that night." It is clear that Para was not disciplined or punished for his act of refusal. Weed testified that he never experienced any difficulty with Para except that "only one night when he [Para] was supposed to be helping his man he stayed over by a machine the biggest half of the time while another fellow helped his man." Para acknowledged that there was a shortage of tanks "and all different stuffs" in his particular department on March 30. Theodore Pavelchak Pavelchak was hired by the respondent on December 9, 1942, and worked continuously thereafter until his discharge on March 30, 1943. He testified, as did other Board witnesses, that he was never criticized about his work. He. further testified that on one occasion Weed asked him to increase his produc- tion of filters and that Pavelchak replied he would try to do so. Pavelchak worked as a team with employee Cample, who was hired the same day as Pavelchak but not discharged on March 30. Pavelchak joined the Union on March 27, 1943. On the night of March 30, Pavelchak was told and at the hearing the respond- ent's witnesses testified that Pavelchak was selected for discharge because, although he and his co-worker, Cample, were supposed to assemble some 8 to 10 filters in an evening, Pavelchak's work dropped approximately 50 percent a few nights prior to March 30. Pavelchak was also criticized at the hearing by Evans for talking too much. Weed testified that on March 28, he instructed Pai elchak to step up his production and that on another occasion Pavelchak was a member of a quartet that sang on company time. Robinson testified that Pavelchak's production dropped "especially two nights before he was laid off' and that Cample when given a new helper, increased the production of the team to eight filters a night. It is impossible to tell whether Pavelchak or Cample was responsible for the drop in production The respondent offered no docu- mentary evidence to substantiate its contention that production of this 2-man, crew dropped approximately 50 percent 2 nights before Pavelchak's discharge and then rose to no normal figure when Cample was teamed with another employee. , John A. Symonies Symonies was hired by the respondent in late November or, early December- 1942. Some 4 or 5 weeks after he was first employed he assumed charge of a, group of men in the assembly department. There is no contention that Symon-- 256 DIEC1€IIONS OF NATIONAL LABOR RELATIONS BOARD les was in charge of a group of men. None the less it is clear by the reference of the respondent's witnesses to Symonies' "group" that he assumed the limited responsibilities of a leader of a small group of men. On the night of March 30, Symonies was told by Mathews that he was "laying down on the job and wasn't doing the work." He testified that when he later asked Robinson if it was true that he was not producing, Robinson replied that he was doing his work to the best of his ability 15 Evans testified that on one occasion Symonies' work had to be reassembled and that he was in the habit of spending a good deal of his working time at the coca-cola dispenser. Robinson testified with regard to Symonies that he never saw Symonies do anything wrong but that after Robinson "sort of asked him to keep his eye on the other men, why he sort of lagged back I mean he wasn't producing as he was before I told him that." Robinson testified further that as time passed he "figured"" that Symonies should have shown greater improvement in his work Weed's only criticism of Symonies was that he spent too much time drinking coca-cola. Weed spoke to Robinson about this but not to Symonies. At the hearing, the respondent's witnesses also testified that Symonies failed to report for work on Sunday night, March 28, 1943, without informing the respondent. It is not clear whether Symonies' failure to work on Sunday, March 28. 1943, was utilized as a reason for his subsequent discharge and so considered by Mathews on March 30, or whether it was first advanced at the hearing as another reason to justify the respondent's actions. Symonies did report for work on Monday, March 29, and nothing was said to him at that time about his failure to work the previous day. Although in its answer the respondent raises the defense of absenteeism as a justification for its action, there is nothing in the record to indicate that the respondent had a rule which it enforced by meting out discipline to employees who failed to come to work without reporting their ab- sences The undersigned is of the opinion that Symonies' absence from work on March 28, inexcusable as it may have been in a defense plant, was not the real reason for his discharge and that the event was cited to him at the meeting with Mathews on March 30 and testified to at the hearing in an effort to justify his discharge In this connection it is significant that employee Walter Jacobs, who likewise did not work on Sunday, March 28, without reporting his proposed ab- sence, was not discharged. Anthonp Mancuso Mancuso was hired by the respondent on December 10, 1942, and discharged on March 30, 1943. When first employed, Mancuso worked as a painter and was thereafter transferred to the assembly department Mancuso joined the Union on March 27, 1943. Mancuso worked on Friday, March 26. At about 6 p. in. on Saturday, March 27, he reported to Weed that -he would be absent "a couple of (lays" because of his sister's illness. On the day of his return he was notified by his father that he had been laid off and the following day Nepa told him of the notice that had been posted. On April 2, 1943, Mancuso went to the plant to pick up his check and then for the first time saw the notice. Evans testified that Mancuso was inefficient as a painter and was transferred to the assembly department for the reason that Robinson land Weed reported that Mancuso was responsible for the bad painting of the paint gang. Robinson testified that Mancuso was a fast painter but not a good painter. Both Evans and Robinson testified that Mancuso's'work in the assembly department -was is On the evening of March 30, Symonies called Robinson "a God damn liar." This can- not be considered as a justification for Symonies ' selection for discharge, since the remark was made subsequent to the time the respondent had decided to discharge Symonies. HEAT TRANSFER PRODUCIS, 111DTc. 257 defective, the latter testifying that Mancuso did not roll tubes tightly enough. Weed testified that Mancuso was not a good workman and spent too much time at the coca-cola dispenser. The undersigned is not persuaded by the vague and indefinite testimony of Evans that Mancuso was the one-personally responsible for any inferior work of the paint, gang. In the absence of more accurate testimony or some system by which the individual work of the employees is recorded, it is impossible, upon the basis of this record, to find that Mancuso, of all the painters, was individually responsible for inferior painting. The vague testimony concerning his work in the assembly department is equally unconvincing. The respondent also asserts that Mancuso absented himself from work without reporting it. With respect to this claim as a justification for his discharge, the undersigned is satisfied and finds despite the denial of Weed, that Mancuso did acquaint him with the fact that he would be absent from work for "a couple of days," and that therefore his absence from employment was properly accounted for. CONCLUSIONS The undersigned has found that the respondent engaged in antiunion activity prior to March 30, 1943, and was aware of the Union interests and activities of its employees as early as January 1943 . There is ample evidence in the record to warrant the conclusion and the undersigned has found that the respondent was vigorously opposed to the organization of its plant by the Union. The respondent's personnel is not a highly skilled or trained -group of em- ployees. - Complaint about the work of the employees is not infrequent and it is clear from the record that no methods were evolved, except as could be provided by time and experience, to train the personnel The undersigned is satisfied that the employees herein involved did make errors in their work. If the testi- mony of Mathews and Evans is to be believed , Robinson made oral reports on these individuals over a period of several months to Evans who in turn verbally relayed these reports to Mathews but nothing was done nor was any disciplinary action ever taken upon these reports The undersigned therefore believes it to be clear that the individual reasons assigned for the lay off are at best extremely vague, indefinite, and insubstantial , and of a nature that can be commonly assigned to any worker in the course of his employment. When in the past the respondent was faced with shortages of material every effort was made to provide temporary work for the employees and expedients were utilized to keep employees on the pay roll. On March 30, 1943, according to the respondent, it was faced with a shortage of material and it thereupon elected to sever from its pay roll those employees whom it felt were least qualified to perform their work . This was the first time that employees were discharged on the occasion of a shortage of materials and in view of the recognized scarcity of manpower, the undersigned does not believe that the respondent , which is engaged in war work, would have discharged men for this reason alone, but rather that it would have continued its system of the past and continued the men on the pay roll until the temporary material shortage was relieved.18 The vagueness of the assigned reasons, when considered in connection with the respondent's expressed hostility to the Union ; Mathews' rejection of Para's application for reinstatement when the latter admitted he had joined the Union ; 19 The respondent explained this practice , giving as a reason for the retention of em- ployees In the face of shortages of materials , that It was more desirable to keep men who had acquired some training than to hire new men after the shortage ceased. However, in the present case, the respondent gave no reason or explanation for failing to follow its past practice in this regard 258 D'ECLSfLONS . Off' NATIONAL LABOR RELATIONS BOARD Pethick's outright rejection of the employees' applications and his statement that the respondent would consider moving its plant before reinstating the men or recognizing the Union ; and Robinson's disclosure that the men, had been dis- charged because they tried to organize a union lead inexorably to the conclusion that these men where selected for discharge because of their known or supposed union interest and membership The undersigned is of the opinion, moreover, that the material shortage and the various reasons assigned in each case for the individual selections were not the true reasons but were rather pretexts for the discharges of the proponents of the Union. The undersigned is of the opinion, based upon the totality of the evidence herein, and therefore finds that the respondent discharged Gentile, Mancuso, Leo Nepa, Para, Pavelchak, and Symonies because of their union sympathies and membership and thereby dis- criminated in regard to their hire and tenure of employment, discouraged mem- bership in the Union, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. Alleged discrimination with respect to hire and tenure of employment Raymond J. Thomas is the other individual named in the complaint. Thomas did not appear at the hearing. He was identified as a union member by other witnesses. There is no testimony in the record concerning his employment history. Thomas did not work on March 30, 1943, and was not present at any of the conversations. held between the discharged employees and. the respondent's supervisors on that night. At the hearing Evans testified that ,Thomas was selected for discharge because of defective workmanship and because he drank intoxicating liquor and appeared for work on more than one occasion in an unfit condition. Evans testified further that he spoke to Thomas about his drinking habits and warned him about the matter. Evans first learned of this conduct on the part of Thomas about March 1, 1943, but took no action to discipline him. Robinson sent Thomas home on one occasion when he was unfit to work because of an excessive consumption of liquor and on another occasion when he discovered Thomas asleep in the plant. Although there is a clear pattern of union hostility in this case and the under- signed is convinced that the discharges were dictated by reason of this hostility and opposition to the Union, nevertheless there is substantial uncontradicted and undenied testimony that Thomas was not a proper workman. The under- signed is of the opinion that the Board has not proved, even by the strength of other evidence and the entire record herein, that Thomas was discharged because of his union membership or concerted activities. It will be recommended here- after that the allegation of the complaint that Thomas' employment was dis- criminatorily terminated, be dismissed , 11 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The undersigned finds that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act and PLEA TRANSFER PRODUCTS, ffN,C. 259 restore as nearly as possible the status quo existing prior to the commission of the unfair labor practices. The undersigned has found that the respondent discriminated in regard to the hire and tenure of employment of Chris J. Gentile, Anthony S Mancuso, Leo F. Nepa, John J. Para, Theodore Pavalchak, and John A. Symonies, because of their union membership and activity. To effectuate the policies of the Act, the undersigned will recommend that the respondent offer the said employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and 'privileges. The undersigned will recommend further that the respondent make payment to the said individuals of an amount of money equal to that which each would have earned as wages during the period from March 30, 1943, to the date of the offer of reinstatement, less his net earnings" 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 Association of Bridge, Structural & Ornamental Iron Workers, affiliated with the American Federation of Labor, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Chris J. Gentile, Anthony S. Mancuso, Leo Nepa, John Para, Theodore Pavelchak, and John Symonies, thereby discouraging membership in the International Associa- tion of Bridge, Structural & Ornamental Iron Workers, affiliated with the -American Federation of Labor, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices within the mean- ing of Section 8 (1) of the Act, by engaging in surveillance or by possession of a list of union members, or within the meaning of Section 8 (3) of the Act, by terminating the employment of Raymond J. Thomas. RECOMMENDATIONS 0 Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, Heat Transfer Products, Inc., Simpson, Pennsylvania, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Association of Bridge, Struc- tural & Ornamental Iron Workers, affiliated with the American Federation of Labor, or in any other labor organization of its employees, by discriminating with regard to their hire and tenure of employment, or any term or condition of employment ; 17 By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 549875-44-vol. 52-18 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection as guaranteed in Section 7 of the Act. 2.. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Chris J. Gentile, Anthony S. Mancuso, Leo Nepa, John Para, Theodore Pavelchak, and John Symonies immediate and full reinstatment to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges ; (b) Make whole Chris J. Gentile, Anthony S. Mancuso, Leo Nepa, John Para, Theodore Pavelchak, and John Symonies for any loss of pay.each may have suffered by reason of the respondent's discrimination against him in regard to his hire and tenure of employment in the manner set forth in the Section entitled "The remedy"; (c) Post immediately in conspicuous places throughout its plant at Simpson, Pennsylvania, 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 recommended that it cease and desist in paragraphs 1 (a) and (b) of these recommendations; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) and (b) of these recommendations; and (3) that the respondent's employees are free to become or remain members of the International Association of Bridge, Structural & Ornamental Iron Workers, affiliated with the American Federation of Labor, and that the respondent will not discriminate against any employees because of membership or activity in that or any other labor organization ; (d) Notify the Regional, Director for the Fourth, Region in writing within ten (10) days from the date of this Intermediate Report, what steps the respondent has taken to comply herewith It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is further %recommended that the complaint be dismissed insofar as it alleges that the respondent engaged in surveillance, advised employees that it was in possession of a list of union members, and discriminatorily terminated the employment of Raymond J. Thomas. 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, Rochambeau Building, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as it relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. MoRrrMER Rixin, Trial Examiner. Dated July 12, 1943.