The S. K. Wellman Co.

In the Matter of THE S. K. WELLMAN Co. and UNrrED STEELwoRBERs of AMERICA (CIO) Case No. C-2675 (8-C-1496) .Decided October 29, 1943 DECISION AND ORDER On July 17, 1943, the Trial Examiner issued his Intermediate Re- port in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a brief in support of its exceptions, and re- quested permission to present oral argument before the Board. On August 19, 1943, pursuant to notice served upon all the parties, a hearing for the purpose of oral argument was held before the Board at Washington, D. C. The respondent and the Union appeared and participated therein. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the, findings, conclusions and recom- mendations made by the Trial Examiner, with the additions noted below. On August 9,1942, the respondent entered into a collective bargain- ing contract with the MESA, covering the production and maintenance employees of its only plant in Cleveland, Ohio. In November 1942, the respondent began operations at a second plant in Cleveland. On March 23, 1943, the contract covering the employees of the first plant was extended to cover Plant 2. In December 1942, prior to this extension of the contract, the maintenance department employees of Plant 2 gathered together in the plant to ask for pay increases. A discussion developed between the employees and Carl Spagnola, a MESA steward. Arthur Dalitz, one of the employees present, testi- fied that Spagnola told the employees in the presence of their fore- 53 N. L. R. B., No. 45. 214 THE S. K. WELLMAN CO. 215 man, George Stillwagon, that they would have to join the MESA or be out of their jobs; that another employee then asked Stillwagon if they had to join the Union; and that Stillwagon replied, "Well, it looks like it, but, it is up to you fellows. I don't have anything to do with it. I am not a member of the Union so I can't tell you to join or not to join. That is up to you." Stillwagon denied hearing Spagnola's threats, and further denied making the above-quoted statement. In March 1943, the Union began organizing the employees in Plant 2. Dalitz testified that in the following month, while the organizational campaign was still in its early stages, Stillwagon told him that "if the C. 1. 0. got in the plant, it would be fulla negroes." Sol Lewis, another employee, testified that Stillwagon made a similar statement to him. Stillwagop denied making either of the above statements. Dalitz joined the Union in April 1943, and, with the knowledge of Foreman Stillwagon and Plant Engineer Ober, solicited members and attended C. I. O. meetings. On April 17, Dalitz was a member of a committee representing the Union at a conference in the Board's Re- gional Office at which the Union's petition- for an election was dis- cussed. Dalitz testified that on April 20, Ober came to him and sug- gested that the Union delay its organizational drive until shortly before the expiration of the existing MESA contract, stating that, if the Union represented Plant 2 and the MESA Plant 1, there would be friction between the unions, and the respondent would be unable to transfer employees from one plant to the other. Dalitz refused to comply with the request. Dalitz testified further that on the following day Ober said to him, "after the build-up I gave you and Joe Joyce, all of a sudden you appear down before the National Labor Relations Board on a committee, and what a black eye that give me." Ober denied making these statements. The next day Dalitz was discharged, the respondent asserting the reason to be that he was too slow and had improperly wired two jobs. In finding that Dalitz's discharge was discriminatory, the Trial Examiner relied in part upon the foregoing statements found by him to have been made by Stillwagon and Ober, which show that the respondent was opposed to the Union's attempt to organize Plant 2 because of the difficulties which would arise if different organizations represented the employees of the two plants, that the respondent unsuccessfully tried to avert such a situation by requesting Dalitz to postpone the Union's drive, and that the respondent was displeased with Dalitz's continued efforts on behalf of the Union. The Trial Examiner further relied upon the respondent's failure to warn Dalitz of his alleged faults prior to his discharge, despite its policy to issue warning slips ; and upon the refutation of the respondent's claim of general incompetence which was implicit in the fact that Dalitz, who had had 20 years' experience as an electrician, had been promoted I 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recently by the respondent and had been commended for his work. The respondent attacks the Trial Examiner's resolution of conflict- ing testimony in crediting Dalitz's and Lewis' testimony that Still- wagon had stated that the plant would be filled with Negroes if the C.J. 0. organized it. It is urged that, since the complaint fails to allege this statement as a specific violation of Section 8 (1) of the Act, the statement must therefore not have been disclosed by the Board's investigation of the case, and consequently must have been a fabrica- tion of Dalitz while on the witness stand, obligingly corroborated by Lewis, who heard Dalitz testify. The respondent's contention is not persuasive. The absence from the complaint of a specific statement attributed to a respondent is by no means a conclusive indication that evidence of such a statement was not disclosed by the Board's investi- gation. In any event, it does not follow that, because a statement has not previously been disclosed on investigation, testimony as, to the statement should not be credited. The Trial Examiner was in a posi- tion to observe the demeanor of the witnesses, and, in view of this and the entire record in the case, we believe that his crediting the testimony of Dalitz and Lewis on this point was justified. The respondent also contends that, even if Stillwagon made the statement attributed to him on the occasion when Spagnola, the MESA steward, warned the men in Stillwagon's presence that they would have to join the MESA or lose their jobs, such a statement was not a violation of Section 8 (1) of the Act. The respondent urges that Stillwagon's reply, "Well, it looks like it . . .," is merely to be taken as meaning that it looked as if the MESA would "make it miserable" for the employees if they did not join. We do not think this interpre- tation of Stillwagon's statement represents the natural intendment of the phrase. When an employee asks a foreman if the employees must join a union, after a union steward has told them in the presence of the foreman that they must do so or lose their jobs, and the foreman replies, "Well, it looks like it ...... such a remark would naturally be taken as an indorsement of the steward's statement. As such, it is clearly coercive. The respondent likewise attacks the Trial Examiner's use of certain subsidiary findings in arriving at the conclusion that Dalitz was dis- criminatorily discharged. Thus, the respondent contends that no significance should'be attached to the fact that Dalitz received a pro- motion to a higher hourly rating, in view of testimony of the respond- ent's witnesses that he received this only because it had been promised to him at the time of hiring, and not for merit. In our opinion, a promise of a future wage increase made at the time of hiring is implic- itly conditioned upon the performance of satisfactory service, and we cannot believe that a probationary employee would be given such THE S. K. WELLMAN CO. 217 an increase if his service had not proved satisfactory. We likewise note that, although Dalitz was promised the increase after 30 days, it was actually nearer 60 days when his promotion became effective, and that, although an identical promise was made to Lewis, who was hired at the same time as Dalitz, Lewis did not receive an increase. , Under these circumstances, the respondent's contention is not persuasive. The Trial Examiner found that no warning slip was issued to Dalitz prior to his discharge, although warning slips were ordinarily used where employees' services were unsatisfactory, and used this fact in support of his finding of discrimination. The respondent asserts that the system of warning slips was not in use at Plant 2 until after Dalitz's discharge. This contention is not supported by the record. Foreman Stillwagon testified that "a couple of men" received warning slips "a few days before Mr. Dalitz's discharge." The record shows that Dalitz was under the impression, in his con- versations with Ober, that Ober favored the Union as against the MESA. The respondent argues therefrom that Ober did favor the Union, and that therefore the record does not support the conclusion that Ober discharged Dalitz for activity on behalf of the Union. This argument ignores the time element. Although the record may indi- cate that prior to Dalitz's discharge Ober intimated that he would prefer the Union to the MESA after the expiration of the MESA con- tract which covered both plants, the record clearly shows that Ober did not want Plant 2 organized by the Union before the expiration of the MESA contract, because of the difficulties which the respondent antici- pated in the transfer of employees if the employees of the two plants were not represented by the same union. Thus,,Ober requested Dalitz to postpone the Union's organizational work until the MESA contract expired, and then to organize both plants. Dalitz's refusal to com- ply with Ober's request to delay the Union's organizing efforts fits into the chain of events, as summarized by the Trial Examiner, which led to the discharge of Dalitz. The respondent finally urges that Dalitz should have taken up his discharge under the grievance procedure provided in the collective bargaining contract with the MESA, and that, because of his failure to pursue and exhaust this remedy, the Board should withhold action, citing a decision of the National War Labor Board, Matter of Briggs Manufacturing Company, 11 L. R. R. 561. The National War Labor Board's decisions are not controlling under our Act, and, in any event, the case cited is clearly distinguishable from the instant case., There the War Labor Board refused to consider the request of a 1 The instant case is likewise clearly distinguishable from Matter of Consolidated Aircraft Corporation, 47 N. L. R. B. 694, for the reasons stated by the Trial Examiner in rejecting the contention that Dalitz should have exhausted the grievance procedure under the MESA contract before coming to the Board. 218 DECISIONS OF, NATIONAL LABORS RELATIONS BOARD minority union for the reinstatement of seven employees discharged for violation of plant rules, on the ground that the employees should have taken up their grievances under the grievance procedure pro- vided in the existing exclusive bargaining contract with the majority union. The question before the War Labor Board was what union should properly represent the discharged employees in presenting grievances. No question of discrimination appears to have been there involved, as here. Furthermore, as provided in Section 10 (a) of the Act, "The Board is empowered . . . to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. This power shall be. exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise." ORDER Upon the basis of the above findings of fact and 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, The S. K. Wellman Co., Cleveland, Ohio, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America (CIO) or in any other labor organization of its employees, by dis- charging any of its employees or in any other manner discriminating in regard to their hire or tenure of employment, or any term or con- dition 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 Arthur Dalitz immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (b) Make whole Arthur Dalitz for any loss of pay he has suffered by reason of the respondent's discrimination against him, by pay- ment to him of a sum of money equal to that which he normally would have earned as wages from the date of the respondent's dis- crimination against him to the date of the respondent's offer of rein- statement, less his net earnings during said period; (c) Immediately post in conspicuous places in and about its Plant 2, at Cleveland, Ohio, and maintain for a period of at least sixty THE S . K. WELLMAN Co. 219 (60) consecutive days from the date of posting, notices to its em- ployees 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 United Steelworkers of America (CIO), and are free to engage in concerted activities within the meaning of the Act, and that the respondent will not discriminate against any employee because of membership in or activity on behalf of such organiza- tion ; (d) Notify the Regional Director for the Eighth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. CHAIRMAN MILLis took no part in the consideration of the above Decision, and Order. INTERMEDIATE REPORT Mr. John R. Hill, for the Board. McAfee, Grossman, Hanning cE Newcomer, by Mr. Maurice F. Hanning, of Cleveland, Ohio, for the respondent. Mr. James Hart, of Cleveland, Ohio, for the Union. STATEMENT OF THE CASE Upon a charge duly filed on April 23, 1943, by United Steelworkers of Amer- ica (CIO), herein called the Union and the C. I. 0., the National Labor Relations Board, herein called the Board , by its Regional Director for the Eighth Region ( Cleveland, Ohio ), issued its complaint , dated June 5, 1943, against The S. K. Wellman Co., Cleveland, Ohio, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and the Union. With respect to the unfair labor practices , the complaint alleged, in substance that the respondent : (1) interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act , by (a) inform- ing certain of its employees in or about February , 1943 that they would have to become members of Mechanics Educational Society of America, Local No. 19, herein called MESA in order to remain in respondent 's employ ; ( b) by advising one of its employees about April 20, 1943 , that the employees should wait until a few weeks before the expiration of its contract with the MESA before changing to the Union ; (c) by telling one of its employees on April 20, 1943 that it would not be permitted to transfer employees from its Plant 1 to Plant 2, and vice versa, if the Union was in one and the MESA was in the other plant; (d) by 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criticizing on April 21, 1943, one of its employees for having represented the Union at a joint conference held on April 17, 1943, in the Board's Regional Office in Cleveland, Ohio,; (e) by advising, in April 1943, certain.of its employees that all the employees in its Plant 2 would be negroes if the Union organized that plant; and (2) on or about April 22, 1943 discharged Arthur Dalitz because of his union membership and activities. On June 15, 1943, the respondent filed an answer denying the alleged unfair labor practices, and admitting that it is engaged in interstate commerce within the meaning of the Act. Pursuant to notice, a hearing was held on June 17, 18 and 19, 1943 at Cleve- land, Ohio, before Max G. Baron, the undersigned Trial Examiner, duly desig- nated by the Chief Trial Examiner. The, Board and the respondent were represented by counsel, and the Union by its representative, and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the beginning of the hearing counsel for the Board moved to amend paragraph 4 of the complaint. The motion was granted without objection., Counsel for the respondent then moved to amend paragraph 4 of the answer, which motion was granted without objection 1 During the hearing counsel for the Board moved to amend paragraph 5 of the complaint. The motion was granted over the respondent's objection.' At the close of the Board's case, counsel for the Board moved to amend the complaint to conform to the proof as to formal matters. The motion was granted without objection. Counsel for the respondent then moved to dismiss specified paragraphs of the com- plaint for lack of'proof. The motion was denied. At the close of the hearing counsel for the respondent moved that the complaint be dismissed for lack of proof, which motion was taken under advisement. This motion is now denied. Although afforded an opportunity to do so, none of the parties argued orally before the undersigned at the close of the case, and none filed any briefs. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The S. R. Wellman Co. is an Ohio corporation engaged at its plants in Cleveland, Ohio, sometimes referred to as Plants 1 and 2,' in the manufacture of bi-metallic friction materials for clutch and brake application. During the year 1942, the respondent purchased raw materials of a value in excess of $200,000, of which approximately 20 percent were purchased from points out- side the State of Ohio. During the same period, approximately 28 percent of the finished products sold by the respondent, valued in excess of $200,000, were shipped by it to points outside the State of Ohio.` The respondent admits that it is engaged in interstate commerce within the meaning of the Act. 1 The allegation was added that Mechanics' Educational Society of America, Local No. 19, is a labor organization within the meaning of the Act. 2 The amendment admitted that Mechanics' Educational Society of America, Local No. 19, was a labor organization-within the meaning of the Act. 8 The allegation was added that Foreman Stillwagon in or about April 1943, advised certain'of respondent's employees that all the employees in its Plant 2 would be Negroes if the Union organized that plant. 6 Plant 2, the one here involved, was also referred to by respondent as "Section 6." Admitted by the respondent in its answer and by stipulation. I THE S. K. WELLMAN CO. II. THE OROANI2ATIONS INVOLVED 221 United Steelworkers of America (CIO), and Mechanics' Educational Society of America, Local No. 19, are labor organizations within the meaning of the Act, admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background On August 9, 1942, the respondent entered into a collective bargaining con- tract with the Mechanics' Educational Society of America, Local No. 19, cover- ing production and maintenance employees in Plant 1, effective for a period of one year from the date of approval thereof by the War Labor Board. On September 2, 1942, the War Labor Board approved the contract. In November 1942, respondent put into operation Plant 2. On March 23, 1943, the contract was extended by agreement to also cover that plant.° B. Interference, restraint and coercion In December, 1942, shortly before Christmas, a meeting of tha maintenance department employees was held in the plant during working hours, attended by their foreman, George Stillwagon. During the meeting, Carl Spagnola, the MESA shop steward, said to the employees in the presence of Stillwagon, that they would have to join the MESA if they wanted to hold their jobs. Later in the meeting Stillwagon in answer to the question by an employee, "Do we have to join the, union," replied, "Well, it looks like it, but, it is up to you fellows. I don't have anything to do with it. I am not a member of the union so I can't tell you to join or not to join. That is strictly up to you." Sol Lewis, another employee, testified that on another occasion he told Stillwagon that Spagnola solicited his membership saying that he would have to sign up or be out of a job, whereupon Stillwagon answered that he had talked with Spagnola and Spagnola said Lewis would have to join or be out of a job. Stillwagon's failure to deny or challenge Spagnola's threat, made in his presence, not only gave color of authority to it, but clearly indicates that he approved of it by his statement made at the meeting. Shortly after the meeting Dalitz and several of the other maintenance employees joined the MESA.? ° The contract provided • (1) a procedure for the adjustment of grievances of employees, including claims for wrongful discharge The employee or his representative had to first take up his grievance with his immediate superior; failing adjustment he could appeal in turn to the superintendent, then to the president of the company. If not adjusted to the mutual satisfaction of the union and the company the services, of the U. S. Labor Conciliation Service were to be used. Still failing a settlement both parties to the contract were to have the dispute certified to the War Labor Board; (2) membership to the MESA was not made a condition of employment; (3) all new employees were hired on a 6 months probationary period without seniority; (4) the company reserved the right to suspend, or discharge for cause, or transfer or lay off for lack of work, any employee, without unjust discrimination. 7 Spagnola's statement to the employees that they would have to join the MESA if they wanted to hold their jobs was testified to by Dalitz. Spagnola admitted that he had addressed the meeting and solicited membership but denied the threat. Both Spagnola and Stillwagon admitted that the question was discussed at the meeting as to whether the employees were required to join the MESA. In view of Lewis' testimony, not specifi- cally denied by Spagnola or Stillwagon, as to the making' of the statement by Spagnola on another occasion to the effect that Lewis would have to sign up or be out of a job, Dalitz's testimony as to the making of the statement by Spagnola at the meeting in the presence of Stillwagon is credited. Dalitz's statement that Stillwagon said it looked as though the employees would have to join the MESA was denied by Stillwagon. Still- wagon was not impressive as a witness, whereas Dalitz testified in a straightforward and candid manner. His testimony is accordingly credited. 559015-44-vol. 53-16 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In March 1943, Union activity started in Plant 2. The C. I. O. distributed literature to the employees going to work. In February 1943, Dalitz quit the MESA." On April 1, Dalitz joined the Union at a meeting of maintenance employees held at the home of employee John Cannon. Among those present besides Cannon were Dalitz, Joseph Joyce, William Lanehan, Sol Lewis, a woman worker known as Stella, James Hart, international representative of the C. I. O. and two or three others. The merits of various unions were discussed and it was finally decided to join the C. I. O. Thereafter, Dalitz, Lewis and Joyce became active in the Union, and with the knowledge of Foreman Stillwagon and Plant Engineer Howard Ober solicited members,° and attended C. I. O. meetii gs. On April 1, the Union filed a petition for investigation and certification of representatives with the Regional Office of the Board, of which action the respondent was informed. In April 1943, during the early union activities in the plant, Stillwagon ap- proached Dalitz stating that "if the CIO got in the plant, it would be fulla negroes." On another occasion that month Stillwagon said to Lewis that if the C. I O. was brought into the plant, they would have a lot of negroes in the plant. The undersigned finds, despite the denial of Stillwagon, that Still- wagon made these statements. From the evidence and in view of all the circumstances the undersigned is convinced and, accordingly, finds that the respondent, by the statements and conduct of George Stillwagon, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discriminatory discharge of Arthur Dalitz Dalitz commenced working for the respondent on October 24, 1942, as a main- tenance man, second-class, in Plant 2, at the rate of $1.05 an hour. He had about 20 years experience and training as an electrician. Dalitz was com- mended for his work on several occasions by his foreman, George Stillwagon and Plant Engineer Howard Ober, the latter as late as about April 15, 1943, a week before Dalitz's discharge. About the latter part of December 1942, Dalitz, on t11e recommendation of Stillwagon, was promoted to maintenance man, first- class, at the highest rate of pay, $1.15 an hour, and was told by Stillwagon that he was being considered for promotion to assistant foreman. At no time had any of Dalitz's supervisors complained to him about his work or conduct 10 On April 17, 1943, a meeting was held in the Regional Office of the Board in Cleveland, Ohio, at which the Union's petition for an election was discussed. The respondent was represented by Ray LaFrance, its General Superintendent, a Mr. Heiser, and Maurice F. Hanning, its counsel ; the MESA by Pauli, its national representative, and Coken, its secretary ; the Union by Dalitz, Joyce, 8 Dalitz stopped paying dues in February 1943, and about the middle of March he told Joseph Joyce, the then MESA shop steward , that he no longer considered himself a member of MESA. 9 Stillwagon when asked, "Did you know whether they had any of them actually obtained applicants for membership in the United Steel Workers of America Union in the plant during working hours?" replied, "Well, I realize that a couple of them were active in that matter." Q. Which couple of them were active? A. "Well, I-the two I recall would be Mr. Dalitz and Mr. Lewis." Stillwagon later added Joyce's name Joyce testified that there was a great deal of C. I. O. activity in the plant and that by April 20, 145 out of about 180 employees signed up for the C. I. O. These findings are based on the testimony of Ober, Stillwagon, Dalitz, Joyce and Worcek. 10 These findings are based on Dalitz 's testimony and corroborated by Frederick Kling, respondent's Personnel Director, Stillwagon, Ober and Sol Lewis. THE S. K. WELLMAN CO . 223 Cannon and Anne Gryzelecki, and James Hart and Jerry Horan, its international representatives. When Dalitz entered the Board's office LaFrance looked up with great surprise. At this meeting Dalitz for the first time learned that the respondent had signed a contract with MESA and on March 23, 1943, had extended it to Plant No. 2.11 On April 20, Howard Ober, Stillwagon's and Dalitz's superior, came to Dalitz in the plant and suggested that Dalitz and his fellow C. I. O. members in the plant wait until a couple of weeks before the expiration of the respondent's contract with MESA and then organize both plants. Dalitz replied that all he could do was to talk to the other men, but that if it involved weakening the position of the C. I. O. he would rather quit his job than do that, whereupon Ober said that the respondent had in mind an increase for the skilled help to $1.40 an hour, and that he had Dalitz in mind for a promotion. Ober went on further to state that in the event the C. I. O. did get into Plant 2, and MESA remained in Plant 1, there would be considerable friction between the two unions and the company would be unable to transfer employees from one plant to the other. On April 21, Ober again talked to Dalitz saying, "after the build-up I gave you and Joe Joyce, all of a sudden you appear down before the National Labor Relations Board on a committee and what a black eye that give me." Ober denied making these statements to Dalitz. He testified that some friction arose in the plant the last week in March or the first part of April. Ober had the impression that the C. I. O. was actively soliciting memberships, and testified that he had received a complaint from one of the girl employees that the C. I. O. was putting too much pressure on her to sign up. He denied discussing with Dalitz the difficulty of transferring employees from one plant to another, but admitted that he did discuss it with Nurney, vice president and general manager, because the respondent might not be able to make transfers since it appeared that the C. I. O. might get into Plant 2. That this was a matter of grave importance to the respondent is evident from Ober's testimony that if this occurred it would require the employment of more men in the plant. This is further corroborated by the fact that up to April 1943, 10 percent of the employees in Plant 2 were transferred from Plant 1, and since then the ratio has increased to from 40 to 50 percent. From the evidence and in view of all the circumstances, the undersigned is convinced, and accordingly finds, that Ober did make the statements attributed to him by Dalitz. On April 21, Dalitz received by registered United States mail a letter dated April 20, 1943, from MESA notifying him to appear at its meeting on April 26, and answer the charge of "disruption" placed against him. A similar letter was sent to Joyce, Lanehan and Cannon. That Dalitz, who had quit the MESA in February, and Lanehan, who had never been a member of MESA should be called upon to answer charges, was in keeping with the discharge of Dalitz the follow- ing day. On April 22, Dalitz was called into Ober's office, and in the presence of Loomis, plant manager, Kling, personnel director, Stillwagon and Worcek, the MESA shop steward, was told that his 6 months probation period (under the MESA contract) was about up ; that he was too slow ; " "that he had done two jobs wrong," and he was, therefore, being discharged. The reason stated to Dalitz for his discharge, as testified to by Stillwagon on direct examination, was that he had done two wiring jobs improperly. It was 11 This finding is based on the testimony of Dalitz and corroborated by Joyce. On several occasions Stillwagon had told Dalitz and other employees that he would rather have them take more time and do the job right than try and speed it up and have to do it over. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD developed at the hearing that one of those jobs, which was performed on April IN concerned the wiring of a piece of apparatus called a rectiplater. Dalitz, upon being instructed by Ober to wire it in a certain manner, called the latter's attention to the fact that according to a diagram which accompanied the appa- ratus the wiring should be done in a different manner. After a short discussion Dalitz wired the apparatus in accordance with Ober's oral instructions, upon the latter's assuming responsibility. Stillwagon testified that' Ober_ had stated to Dalitz at the time of the discharge that Dalitz had argued with him about the method of wiring the rectiplater. Ober, however, testified that he "forgot" about the incident, and admitted specifically that it was not sufficient ground for discharge. The other job was performed about the last week in March, when Dalitz ran power and light wires through the same conduit in an apparatus called a spreader. The spreader functioned, and no complaint was made about it until Dalitz's discharge in Ober's office. Foreman Stillwagon admitted that no instructions had been furnished to Dalitz concerning the method of installing the power and light wires. Dalitz testified that the reason assigned to him for his discharge was slowness, and during cross-examination, Stillwagon stated that the discharge was for that reason. Ober testified, to a still different reason for the discharge, namely, complete lack of experience, in addition to leaving a switch open. On Dalitz's separation notice appeared the words, "dismissed incompetent." Ober, Stillwagon, and Kling all testified that a system of warning slips had been adopted and warnings were given to employees whose work or conduct was not satisfactory. Yet, no such warning was ever given Dalitz. None of the reasons advanced by either Stillwagon or Ober adequately explain the discharge. Had the only charges against Dalitz been slowness, it is highly improbable that he would not have been first admonished to speed up his work, especially at a time when, as Kling, the respondent's personnel director, admitted, the respondent was trying to hold its employees. Ober himself admitted that the incident involving the rectiplater was not an adequate ground. The reason advanced by Ober, general incompetence, is refuted not only by Dalitz's pro- motion to maintenance man, Grade A, with a 10-cent increase, in December 1942, but by Stillwagon's repeated commendations of his work 'during February and March 1943, according to the credible testimony of Sol Lewis. Nor does Dalitz's running both power and light wires through the same conduit appear as an adequate basis for his discharge especially since the spreader functioned properly despite Stillwagon's failure to instruct Dalitz as to the method of installation. It is also significant that no complaint about the spreader was made until the very moment of Dalitz's discharge by Ober. The proximity in time of the occurrence of the following incidents casts light upon the respondent's true motive in discharging Dalitz. On April 1, Dalitz joined the,Union. Thereafter he was one of the three most active Union organ- izers among the respondent's employees. On April 17, Dalitz attended the joint meeting at the Board's Regional Office. On April 20, Ober suggested to Dalitz that the Union postpone its membership campaign. On April 21, Ober complained to Dalitz that his appearance before the Board on a Union committee gave Ober a "black eye." On the same day Dalitz received a letter from the MESA direct- ing him to account for his C. I. O. activity. On April 22, Dalitz was discharged by Ober without previous warning. It is quite evident that Dalitz was not discharged for the reasons assigned by the respondent. It is clear that the respondent wanted free rein to transfer employees from one plant to the other. To have one union in one plant and another union in the other would make it difficult to effect transfers. The sim- THE S. K. WELLMAN CO . 225 plest expedient to avoid this situation would be to have the same union in both plants. As early as December 1942, the respondent attempted to accomplish this purpose by trying to persuade its employees to join the MESA, pointing out that if the C. I. 0. got into the plant, the employees would be replaced by negroes. This having failed, the C. I. 0. having obtained 145 members out of 180 employees in the plant, and having filed a petition with the Board for an election, Ober undertook to persuade Dalitz to delay the Union's organization until shortly before the expiration of respondent's contract with MESA. Being unable to sway Dalitz from his course, Ober determined on quick action, and 2 days later, discharged him. On the basis of the entire record, the undersigned is convinced and finds that the respondent discharged Arthur Dalitz because of his membership in and activ- ities on behalf of the Union, thus discriminating against him in,regard to his hire and tenure of employment, thereby discouraging membership in the Union, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act 18 The undersigned further finds that Ober's statements to Dalitz on April 20 and 21, were also violative 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 connection 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged 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. The undersigned has found that the respondent has discriminated against Arthur Dalitz in regard to his hire and tenure of employment. The under- signed will recommend, therefore, that the respondent offer immediate and full reinstatement to Dalitz to his former or substantially equivalent position, with- out prejudice to his seniority and other rights and privileges, and that the respondent make him whole for any loss of pay he has suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to that which he would have earned as wages from the date of such discharge to the date of the offer of reinstatement, less his net earnings " dur- ing said period. 18 The respondent urges that Dalltz should have followed first the grievance procedure provided in its contract with MESA before coming to the Board. This is clearly untenable under the facts in this case. First, this proceeding was instituted by an outside union not a party to the contract Second, Dalitz was not a member of MESA when the contract was extended to Plant 2. Third, there is no showing that MESA was the collective bar- gaining agent designated by a majority of an appropriate unit. Fourth, Dalitz was engaged in activity against MESA, and it would have been a useless gesture to invoke its repre- sentation in his behalf and expect impartial consideration. 14 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company, etc., 8 N. L. it. B. 440. ' Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earnings . See Republac Steel Corporation v. N. L. R. B., 311 U. S. 7. I I 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. United Steelworkers of America (CIO) and Mechanics Educational Society of America , Local No. 19, are labor organizations within the meaning of Sec tion 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Arthur Dalitz and thereby discouraging membership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices , within *he meaning of Section 8 (3) of the Act. 3. By interfering with , restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices , within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce , within the meaning of Section 2 (6) and ( 7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the un- dersigned recommends that the respondent , The S. K. Wellman Co., Cleveland, Ohio, and its officers , agents, successors, and assigns shall : 1. Cease and desist from: (a) Discouraging membership in United Steelworkers of America (010) or any other labor organization of its employees , by discharging or otherwise dis- criminating in regard to their hire or tenure of employment , or any term or con- dition of employment ; (b) In any other manner interfering with, restraining , or coercing its em- ployees 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 purposes 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 ef- fectuate the policies of the Act : (a) Offer to Arthur Dalitz immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges ; (b) Make whole Arthur Dalitz for any loss of pay he has 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 from the date of discrimination to the date of the respondent's offer of reinstatement less his net earnings16 during said period; (c) Immediately post in conspicuous places in and about its plant No. 2, at Cleveland , Ohio, and maintain for a period of at least sixty (60) consecutive days from the date of posting, - notices to its employees stating: (1) thht the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a) and ( b) of these recommendations ; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) and (b) of these recommendations ; and (3 ) that the respondent's employees are free to become or remain members of United Steelworkers of America (CIO), or 25 See footnote 14, supra. THE S . K. WELLMAN CO . 227 any other labor organization, and are free to engage in concerted activities within the meaning of the Act, and that the respondent will not discriminate against any employee because of membership in or activity on behalf of such organization. (d) Notify the Regional Director for the Eighth 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 with the foregoing recommendations. It is further recommended that unless on or before ten (10) days from the re- ceipt 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. 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, 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 he 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. MAx G. BARON, Trial Examiner. Dated July 17, 1943. e