Greenville Steel Car Co.

In the Matter of GREENvILLE STEEL CAR COMPANY and UNITED STEEL WORKERS OF AMERICA, LOCAL UNION No. 2440 (C. I. 0.) Case No. C-2639 (6-C-656).-Decided January 15,1944 Mr. T. Lowry Whittaker, for the Board. Reed, Smith., Shaw, and McClay, by Messrs. John C. Bane, Jr., and Nicholas Unkovic, of Pittsburgh, Pa., and Mr. T. C. Whiteman, of Greenville, Pa., for the respondent. Messrs. John W. Grajciar and Ross Atwell, of Sharon, Pa., for the Union. Mr. Donovan H. Henry, of Greenville, Pa., for the Association. Mr. Herman J. DeKoven, of counsel to the Board. DECISION AND .ORDER STATEMENT OF THE CASE Upon charges duly filed by United Steelworkers of America, Local Union No. 2440 (C. I.O.) , herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixth Region (Pittsburgh, Pennsylvania), issued its complaint, dated January 16,1943, against Greenville Steel Car Company, Green- ville, Pennsylvania, herein called the respondent, alleging that the re- spondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), 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, together with notice of hearing thereon, were duly served upon the respondent and the Union. In respect to the unfair labor practices, the complaint alleged in substance that the respondent: (1) since on or about April 1937, has made statements tending to discourage activities by its employees for the purpose of collective bargaining and other mutual aid'and pro- tection, has disparaged and discredited the Union, has advised, ex- United Steelworkers of America , Local Union No. 2440 ( C. I. 0.), was formerly known as Steel Workers Organizing Committee, Local Union No. 2440 (C. I. 0.). The term Union , as used herein , is descriptive of both organizations. 54 N. L R. B., No. 88. 608 GREENVILLE STEEL CAR COMPANY ' 609 horted, and threatened its employees to cease agitation for and mem- bership in the Union, has questioned its employees concerning their membership and activities in the Union, and has threatened to dis- charge them for such membership and activities; (2) from approxi- mately 1934 to about, June 1937, 'dominated and interfered with the' formation and administration of, and contributed support to, a labor organization among its employees known as the Shop Committee, and since approximately June 1937 has dominated and interfered with the formation and administration of, and has contributed support to, a labor organization among its employees known as The Greenville Car Builders Association, herein called the Association; (3) discharged, and thereafter refused to reinstate, Earl Powell and Dewey Hovis because of their membership and activities in the Union; and (4) by the foregoing acts interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. In its answer, as amended, the respondent denied that it had engaged in any unfair labor practices. Pursuant to notice, a hearing was held in Greenville, Pennsylvania, from February 1 to March 20, 1943, before Carl C. Wheaton, the Trial Examiner duly designated by the Chief Trial Examiner. At the commencement of the hearing, the Trial Examiner granted a motion by the Association to intervene. The Board, the respondent, the Union, and the Association were represented 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. During the course of the hearing, various motions to dismiss the complaint were made by the respondent and the Association. These motions were denied by the Trial Examiner. At the close of the hearing, counsel for the Board, and respondent, moved that the pleadings be conformed to the proof. These motions were granted by the Trial Examiner. Various rulings were made by the Trial Examiner during the course of the hearing on other motions and on objections to the admission of evidence. The- Board has reviewed the rulings of the Trial Examiner and finds that no preju- dicial error was committed. The rulings are hereby affirmed. After the hearing, the respondent filed a brief with the Trial Examiner. On June 9, 1943, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1), (2), and (3), and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Thereafter, the respond- 567900-44-vol. 54-40 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent and the Association filed exceptions to the Intermediate Report and briefs in support of their exceptions. Oral argument was held before the Board in Wasington, D. C., on August 12, 1943. The Board has considered the exceptions and' briefs filed by the respondent and the Association, and finds the exceptions to be without merit insofar as they are inconsistent with the findings, conclusions, and order set forth below. On August 2, 1943, the respondent filed a motion for. the issuance by the Board of an order to show cause why, in view of a certain provision in the National Labor Relations Board Appropriation Act, 1944,2 dealing with the use of funds by the Board for the current fiscal year, the complaint should not be dismissed. Briefs in support of such motion were filed by the respondent and the Association. The Union filed a (brief in opposition to such motion, and the respond- ent filed an answer thereto. On November 3, 1943, the Board issued an order upon the parties to show cause why, on the basis of the afore-mentioned provision in the Appropriation Act, and the opinion of the Comptroller General of the United States referred to below, the proceeding herein, in whole or in part, should or should not be dismissed. Thereafter, the respondent, the Association, and the Union filed answers to such order, and the respondent and the Association filed requests for oral argument on the issues raised by such order.3 The Comptroller General of the United States, by letter ' dated October 21, 1943 4 interpreting the afore-mentioned provision of the Appropriation Act, has ruled that "the current appropriation of the Board is not available for use in connection with a complaint case under Section 8 (2) of the National Labor Relations Act where there is involved an agreement between management and labor which has been in existence for three months or longer without charges being filed with the Board." The instant case involves an existing agree- ment between the respondent and the Association, which was entered into 3 months or more prior to the filing of charges with the Board. Under the circumstances herein, and without passing on their merits, we shall dismiss the allegations of the complaint that the respondent violated Section 8 (2) of the Act. 2 Public Law 135 of the 78th Congress , Chapter 221-1st Session, Title IV. The provision in question reads as follows : No part of the funds appropriated in this title shall be used in any way in con- nection with a complaint case arising over an agreement between management and labor which has been in existence for three months or longer without complaint being filed. Provided, That, hereafter , notice of such agreement shall have been posted in the plant affected for said period of three months , said notice containing information as to the location at an accessible place of such agreement where said agreement shall be open for inspection by any interested persons. B Since the contentions of the parties on the question raised by such order have been fully set forth in their motions, briefs, and answers, we believe that no useful purpose would be served in hearing oral argument on such question Accordingly, the requests of the respondent and the Association for oral argument are hereby denied. 4 See 13 L. R. R. 236. GREENVILLE STEEL CAR COMPANY 611 The respondent and the Association also contend that the provision of the Appropriation Act, discussed above, requires the Board to dis- miss the complaint in its entirety. We find this contention to be without merit. The complaint alleges violations by the respondent of Section 8 (1) and (3), as well as of Section 8 (2), of the Act. The finding hereinafter made that the respondent violated Section 8 (1) of the Act is based upon the activity of supervisory employees in dis- paraging and expressing hostility toward and disapproval of the Union, inquiring of employees as to their union membership, and threatening them with economic reprisals for their union affiliation. This is the type of activity upon which we customarily predicate a finding of independent violation of Section 8 (1). Also, the respond- ent's violations of Section 8 (3), found below, consist of its discharge of two employees, and its failure thereafter to reinstate them, because of their union membership and activities, which is the usual type of discrimination upon which we base findings of violation of Section 8 (3). The respondent's violations of Section 8 (1) and (3) are not dependent upon or materially affected by, and are distinct and severable from, the alleged unfair labor practices under Section 8 (2) of the Act, and are in nowise related to the contract between the respondent and the Association, and we so find. Plainly, therefore, insofar as the complaint embraces unfair labor practices within the meaning of Section 8 (1) and (3) of the Act, it is not "a complaint case arising over an agreement between management and labor," and we conse- quently see no reason why we should not proceed with these portions of the complaint. The contention of the, respondent and the Association could be sus- tained only by interpreting the Appropriation Act to mean that, where charges are filed alleging that an employer has engaged in violations of other Sections of the Act in addition to Section 8 (2), and the Board is barred under the terms of the Appropriation Act from proceeding with the latter charge, it is also precluded from proceeding with the charges that the employer has violated the other Sections of the Act, merely because they happen to be joined in one charge and complaint, and despite the fact that they are entirely independent of the alleged violation of Section 8 (2). We do not believe that such a result could have been intended by Congress. The legislative history of the measure discloses that it was enacted for the "stated purpose of ac- complishing stabilization of labor relations" 5 during the war. The method selected was to freeze agreements between management and labor which have been in existence for a period of 3 months or more without a charge being filed. The Comptroller General has ruled that 6 Opinion of the Comptroller General of the United States, October 21, 1043, 13 L. R. R. 236. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Congress intended to that extent "to inhibit the Board from exercising its authority to determine the validity of agreements with company unions," and that the Board is accordingly prohibited from using its current appropriation in connection with "a complaint case under Section 8 (2) of the National Labor Relations Act where there is involved an agreement between management and labor which has been in existence for 3 months or longer without charges being filed with the Board." 6 There is nothing in the measure itself, or in its legislative history, however, which discloses a purpose to license an employer who has made an agreement with a company union which, but for the measure, would be the subject of proceedings under Section 8 (2) of the Act, to commit unfair labor practices under other Sections of the Act, or a purpose to absolve the employer from responsibility for the commission of such other unfair labor practices. On the con- trary, such an interpretation would inevitably defeat the "stabiliza- tion of labor relations" which Congress sought to achieve in enacting the measure in question, since it would necessarily restore "recognized sources of industrial strife and unrest" which Congress stated in Section 1 of the National Labor Relations Act it was its policy to eliminate. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Greenville Steel Car Company is a Pennsylvania corporation having its principal office and place of business in Greenville, Pennsylvania, where it is engaged in the manufacture of special equipment for the United States Army and Navy, and in the manufacture and repair of freight cars. During 1942, the respondent purchased materials valued in excess of $3,000,000 at least 20 percent of which was shipped from points outside the State of Pennsylvania. During the same year, the re- spondent manufactured products valued in excess of $3,000,000, approximately 80 percent of which was shipped to points outside the State of Pennsylvania. The respondent admits that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Steelworkers of America, Local Union No. 2440, formerly known as Steel Workers Organizing Committee, Local Union No. 2440 (C. I. 0), is a labor organization affiliated with the Congress of Industrial Organizations and admits to membership employees of the respondent. 0 Ibid. GREENVILLE STEEL CAR COMPANY 613 III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In July 1937, the Union commenced an organizational campaign among employees at the respondent's plant, which lasted approxi- mately 6 weeks.' The Union renewed its organizational efforts in June 1940, and discontinued its activities in November of that year. In April 1941, and continuing thereafter, the Union again attempted to organize the employees. The various attempts of the Union to organize met with opposition by the respondent. In June 1937, on the eve of the Union's first mem- bership drive, Fred Babcock, general foreman of the punch room, told Charles Quay, an employee, that the respondent desired to keep the Union out of the plant. Around July 1940, Babcock asked Quay, who was assisting the Union in its second organizational attempt, whether Quay was "making lots of money organizing the C. I. 0." The respondent's hostility toward the Union manifested itself more strongly during the Union's third organizational campaign, in 1941. Thus, in the latter part of May 1941, Babcock asked Quay what the C. I. O. could give the employees that they did not already have. Quay was again approached by Babcock in July 1941 with an inquiry as to whether Francis Wright, Quay's helper, "belonged to the C. 1. 0." When Quay replied that he did not know, Babcock said, "You are a God damned liar, I know that he does." Also, on or about June 12, 1941, Babcock asked Virgil Mowery, an employee and treasurer of the Union, what the C. 1. 0. could obtain for the employees that "they" could not, and when Mowery replied, "Lots of things," Babcock said, "Well, I would like to know what those things are, and maybe I can- get them for you," and added, "If you get the C. I. O. in, it will be tough on you and better for me." Around the middle of June 1941, Babcock told Earl Powell, who worked in Babcock's department, that several persons were angry at Powell about the "God damn C. I. O.," and that he should "keep his mouth shut" about that organization., Babcock, during the same month, asked employee Oscar Saylor what the employees wanted with the C. I. O. Babcock was not the only representative of the respondent who expressed an antipathy to the Union. Around August 1941, Harold Leonard, a supervisory employee's asked Quay where he had obtained ' One of the reasons for the short-lived nature of that drive was the difficulty ex- perienced by the Union in obtaining a suitable meeting place . In this connection, it was contended at the hearing that the respondent was instrumental in preventing the renting of a certain hall to the Union. While there was local opposition to the Union's renting of the hall, the record does not establish that the respondent was in any way responsible tberefor, and we so find , as did the Trial Examiner. 8 Leonard, who was characterized as a "foreman" by various employees who testified, instructs the machine operators under him in their work, does no work himself as an operator, and has authority to recommend discharges of employees . We find him, as did the Trial Examiner, to be a supervisory employee. 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the C. I. 0. button which Quay was wearing, and when Quay replied that someone had given it to him, Leonard, with a "kinda disgusted" expression, raised his hands above his head, said "Jesus Christ," and "down the shop he went." During that same month, Perry Williams, another supervisory employee,' told employee Charles Kelly that he did not understand why Kelly wanted the C. I. 0., and that he could not see "where it would do" the employees "any more good than what they had." In September 1941, David Gruver, chief of the respondent's police and a representative of the respondent,10 told em- ployee Warren Reinhart, a member of the Union, upon Reinhart's return to the plant after a period of unemployment, that "If it wouldn't have been for the C. I. 0., you would have been working right along." About a month later, John Weaver, a supervisory employee,1' made the following remark to employee Benjamin Saylor : "Why should we let Sam Consiglio [an employee who was then an officer of the Union] and them run us; we would be fools to let them." 12 It is clear, and we find, that the foregoing statements and acts of the respondent's supervisory employees, as well as the discharge of em- ployees Earl Powell and Dewey Hovis because of their union mem- bership and activities, as found below, were integral parts of a course of conduct by the respondent designed to discourage membership in and activity on behalf of the Union. We further find that by such conduct, which included threats of, as well as actual, economic re- prisals for union membership and activity, the respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Williams has from 15 to 28 machine operators under his supervision and performs no work himself as an operator . He was variously referred to in the testimony by some of the employees as "foreman " and "supervisor." The respondent admitted that in 1941 his duties were wholly supervisory . We find, as did the Trial Examiner, that he is a supervisory employee. l° Gruver, who was at times referred to at the heating as Gruber , was chief of the respondent 's police and had authority to instruct the men on his staff as to their duties. One of the respondent's employees, in his testimony , referred to Gruver as a "supervisor " In August 1941, when Gruver assumed the position as chief of police, he resigned his office as president of the Association , a labor organization among the respondent's em- ployees, becauke of his new position As found below, it was Gruver who , on November 10, 1941, refused to give employee Dewey Hovis, upon his discharge , the money due him from the respondent unless •Hovis signed a certain document indicating that Hovis was voluntarily quitting the respondent 's employ. Upon the entire record, we find, as did the Trial Examiner, that Gruver represented management. "Weaver was foreman of approximately 45 men who operated machines in the punch room on the night shift. He inspected their operations and instructed them in their work He did no work himself as a machine operator . We find him, as did the Trial Examiner, to be a supervisory employee. 12 The foregoing findings with respect to the statements of Fred Babcock and the other supervisory employees are based upon the uncontradicted testimony of the employees to whom they were made, which we credit, as did the Trial Examiner. I GREENVILLE STEEL CAR COMPANY 615 B. The discrimiinato'j discharge of Powell Prior to his discharge in September 1941, Earl Powell had been in the respondent's employ for approximately 16 years, and for some time prior to his discharge worked as'a press operator in the punch room. He was regarded by the respondent as a competent worker. Powell was elected vice president of the Union on May 29, 1941, was very active in the Union's 1941 organizational campaign at the plant, and was the Union's chief representative in the punch room is On September 8, 1941, Powell advised the respondent that he was "laying off" from work because of his wife's illness. Upon her re- covery a few days later, Powell, through his son Carl, notified Fred Babcock, general foreman of the punch room, that he. would return to work on September 15. Babcock then informed Carl that his father was not returning to the respondent's employ, and-Carl com- municated Babcock's advice to his father on or about September 14. On September 18, Earl Powell called on Roy Young, the respondent's personnel manager, and Young confirmed the fact that he had been discharged. Thereafter, Powell twice requested the respondent to reinstate him, but at no time did the respondent offer to do so. Powell was not granted a hearing on his discharge, and was never advised of the reason for such action or the respondent's failure to reinstate him. The respondent was suffering from a manpower shortage, and discharges and suspensions of employees at the plant were exceedingly rare. The reason assigned by the Respondent for Powell's discharge 14 is that he "laid off" from work excessively. We do not believe that this was the operative reason for the discharge. Powell's work record for the year preceding his discharge discloses that for approxi- mately 23 days during that year he did not work while the other employees, as a whole, did. However, the reason for such absences is not disclosed, and there is no showing that they were without good Is It is clear , and we find, as did the Trial Examiner, that the respondent had knowledge of Powell 's union membership and activities . Powell was actively engaged in soliciting employees at the plant to become members of the Union, and we find, upon the entire rec- ord, that the respondent had knowledge of such solicitation . Also, Powell wore his union button while at work. In June 1941, Fred Babcock, general foreman of the department in which Powell was employed , complained to Powell about his union activities. That Babcock knew who the Union's officers were is evidenced by the remark made by him in June 1941 to Oscar Saylor, the Union' s financial secretary , that "a big officer like [Saylor]" should have knowledge of the Union's meetings , and by another statement made by Babcock at about the same time to Virgil Mowery, the Union's treasurer , that he understood that Mowery was "pretty high up in the C. I. 0." "The respondent's Employment Change Record for Powell , dated September 16, 1941, gives his status as "suspended," and the respondent contends that he was indefinitely sus- pended rather than discharged However, we find that he was in fact discharged , and that, In any event, such suspension was equivalent to discharge. Babcock in effect told 'Powell's son that Powell was discharged , and this fact was confirmed by the respondent's personnel manager. Also, notwithstanding two requests by Powell, the respondent never offered him reinstatement. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause. Moreover, for a number of months immediately preceding his discharge, Powell failed to work on only two or three occasions when the other employees, as a whole, did. Nor was Powell ever reprimanded by the respondent for any of his absences. Further, the record discloses that other employees laid off repeatedly for sub- stantial periods and yet apparently were not discharged or suspended. That Powell was not discharged for excessive absences is further evidenced by the fact that when Vice-President Dietrich discussed Powell's discharge with Fred Babcock, who was responsible therefor, Babcock did not give excessive absences as a reason for the discharge. Also, in its answer, as amended, to the complaint, the respondent, in explaining. the circumstances surrounding the termination of Powell's employment, made no mention of excessive absences. Fur- ther evidence of the falsity of the respondent's assertion that Powell was discharged for cause is seen in the explanation, in part, of his discharge, contained in the respondent's Employment Change Record for Powell-namely, that Powell "reported at gate office to return to work September 15, but failed to appear, due . . . to his dissatis- faction in the management." Yet it is clear, and we find, that Powell's failure to return to work on September 15 was due, not to any alleged "dissatisfaction in the management," but rather to the fact that the respondent had prior thereto advised Powell, through his son, that he was discharged. The respondent contends that Powell has been denied reemploy- ment because of the conversion at the plant from car-building, which was the type of work performed during Powell's period of employ- ment, to boat building. We find no merit in this contention. It was not until approximately 8 months after his discharge that the con- version took place. Moreover, it is clear, and we find, that Powell was qualified for and could have been employed in the new type of work 15 Upon the basis of the entire record, we are convinced that the motivating cause of Powell's discharge and the respondent's failure to reinstate him, was his union membership and activities. This is evidenced not only by the inadequacy of the reasons assigned by the respondent for its conduct with respect to Powell, but also by the following circumstances: (1) the respondent was suffering from a manpower shortage and only on rare occasions discharged or sus- 15 Vice-President Dietrich conceded that the conversion did not require a change in per- sonnel, and the record discloses that, while no new press operators were hired between the date of the conversion and March 1943 , press operators with less seniority than Powell, who was No. 3 press operator on the respondent 's seniority roster, were retained during that period . Moreover, and without determining whether work as a fitter is substantially equivalent to that of a press operator, we note that Powell was No. 14 fitter on the senior- ity roster , that 54 fitters were hired between September 1941 and March 1943, and that Powell was not offered a position as a fitter. GREENVILLE STEEL CAR COMPANY 617 pended employees; (2) Powell was not granted a hearing on his discharge and was never advised of the reason for such action or the respondent's failure to reinstate him; (3) Powell had been employed by the respondent for approximately 16 years and was regarded as a competent worker; (4) the respondent, and particularly General Foreman Fred Babcock, who was directly responsible for Powell's discharge, was plainly hostile toward the Union, as evidenced by the anti-union conduct of Babcock and other of the respondent's super- visory employees, as found above; (5) Powell was vice president of the Union and one of the most active employees at the plant on behalf of the Union; and (6) General Foreman Babcock, some time prior to Powell's discharge, complained to him about his union activities and told him to "keep his mouth shut" about the "C. I. 0." We find, as did the Trial Examiner, that by discharging Powell, and thereafter failing to reinstate him, the respondent has discriminated against him in regard to the hire and tenure of his 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. C. The discriminatory discharge of Hovis Dewey Hovis, prior to November 8, 1941, had been employed by the respondent for approximately 23 years. For some time prior to November 8, 1941, he worked as a riveter in the car department, and Vice-President Dietrich, as well as Thomas Babcock, assistant general foreman of the car department, admitted that Hovis was one of the, respondent's best riveters. Hovis was elected president of the Union on May 29, 1941, was very active at the plant in securing the signatures of employees to union application cards during the Union's organiza- tional efforts in 1941, and was the Union's chief representative in the car department 16 On the afternoon of November 8, 1941, after completing their opera- tions on a certain car and before commencing work on a new one, the 24 men on the position 17 to which Hovis was attached, engaged in a discussion, which was initiated by Hovis, concerning a certain written statement 18 by Vice-President Dietrich which was posted at the plant. lU We find, as did the Trial Examiner , that the respondent was aware of Hovis' union membership and activities He solicited union memberships from approximately 25 em- ployees at the plant, and we find, upon the entire record, that the respondent had knowledge of such solicitation . Hovis also wore a union button while at work. Further , as already indicated, the respondent , through General Foreman Fred Babcock, knew who the Union's officers were. 11 These men , including Hovis , were working on a "production line" track on which freight cars were constructed, and the different locations on the track at which the various operations on the cars were performed were called "positions." ie In this statement, Dietrich condemned employees who did not work steadily and indi- cated that during the last war they had been called "slackers." 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As Thomas Babcock approached, many of the men commenced to work on the new car. Hovis was unable to resume work because Sam Con- siglio, who was the bucker in Hovis' crew,19 had left shortly prior there- to and had not returned. When Babcock asked Hovis why Hovis was "holding up the track," he replied that he did not like Dietrich' s afore- mentioned statement. Babcock then told Hovis that he should either "go to work or go home," whereupon Hovis left the plant and failed to return to work that day.20 On the moring of November 10, Hovis' next work day, Fred Artman, Hovis' stepson, at Hovis' request, advised Thomas Babcock that Hovis was ill and would be unable to work that day. Babcock replied that Hovis need not "report off," and that Artman should advise Hovis to come to the plant for his "check." 21 Upon being so advised, by Art- man, Hovis immediately proceeded to the plant and asked David Gruver, the respondent's chief of police and, as found above, a repre- sentative of management, for his check. Gruver handed him a docu- ment which read : "I, this 8th day of November, demand my money in full," and told him that he could not obtain his check unless he signed that document. Hovis refused to sign it, and consequently did not receive his check at that time.22 Later that day, Hovis asked Thomas Babcock if Babcock wanted him to return to work. Babcock replied that he had "nothing for [Hovis] now" and left without advising Hovis when he would have work available for him. There- after; Hovis, on four different occasions,Y3,requested the respondent to reemploy him, but the respondent failed to do so. On the last of such occasions, Hovis addressed his request for reemployment to Lawrence Bacher, general foreman of the car department and Thomas Babcock's superior. -Bather referred Hovis to George Meeker, then president of the Association. Meeker was thus designated as an agent of ' the respondent, with authority to speak for it concerning Hovis' reemploy- ment. According to Hovis' uncontradicted testimony, which we credit, as did the Trial Examiner, in the discussion a day or two later with Meeker on the matter of Hovis' reemployment, Meeker said the following, among other things, to Hovis : He (Meeker) said, "Do you still belong to that across the street?" I , - 10 The men on the position to which Hovis was attached operated in crews, each of which was composed of a few employees 20 Babcock testified that during the course of that conversation , Hovis stated that he was "going to quit" the respondent's employ. Hovis denied making that statement. We find Hovis to , be the more trustworthy witness, and we find, as did the Trial Examiner, that such statement was not made by him. 21 Babcock testified that he had no recollection of seeing Artman on the morning of No- vember 10. We credit Artman 's testimony that he had engaged in the foregoing conversa- tion with Babcock at that time. 22 Hovis did not receive his check until the next regular pay day. 23 In the middle of November 1941, in December 1941 and in January and February 1942. GREENVILLE STEEL CAR COMPANY 619 I said, "You mean the C. I. 0., George?" He said, "Yes." I said, "Yes, sir," I said, "I do." Well, now," he said, "I ain't telling you to, but," he said, "if I was you," he said, "I would lay off of it." And I said, "Did Mr. Bacher tell you to tell me that, or did he say anything to you about it?" "Now," he said, "Dewey," he said, "I ain't saying, but if I was you, I would lay off it over there." Also, shortly after the termination of Dewey Hovis' employment with the respondent, David Gruver told Earl Hovis, Dewey's brother, that if Dewey had been "on the right side of the fence," Dewey "would have had a job with [Gruver.]."- We find that by "the right side of the fence," Gruver meant non-affiliation with the Union24 The respondent contends that Hovis was not discharged, but that he voluntarily quit his employment on the afternoon of November 8 when he left the plant after Thomas Babcock told him that he should either "go to work or go home." Hovis testified that since he had no bucker he was unable to resume his work and, therefore, when, Babcock instructed him to work or go home, he had no alter- native but to leave the plant. While we are not convinced that this was the impelling reason for Hovis' action'25 we are equally not persuaded that Hovis quit his employment on the occasion in question. Rather, the evidence as a whole indicates, and we find, that Hovis merely "laid off" for the balance of the afternoon of November 8, and that the respondent itself did not believe that Hovis had quit 26 We further find, on the basis of the various events which took place on November 10, Hovis' next work day, and thereafter, as set forth above, that Hovis was discharged on November 10. Even if it were conceded that Hovis had quit his employment on November 8, no adequate reason has been advanced by the respondent' 4 Earl Hovis testified that he so interpreted Gruver's remark. That this interpretation was a reasonable one is evidenced by the respondent's antipathy to the Union, as well as by the fact that Gruver had been president of a labor organization among the employees at the plant other than the Union. as We believe that Hovis seized upon Babcock's remark as an excuse for leaving early that afternoon. Had Hovis been anxious to work the balance of the day, he could easily have asked Babcock for a bucker during the course of their conversation. 21 Thus, on November 10, his next work day, Hovis notified the respondent that be would be unable to work that day because of illness. Later that day, he refused to sign a docu- ment submitted to him by the respondent stating that "he was demanding [his] money," and also made efforts to return to work. Thereafter, he made several other attempts to obtain employment with the respondent. Also, Hovis, as well as other employees, had on various occasions left the plant before quitting time without permission, and the respondent had not treated them as though they had quit their employment. Further, the fact that the respondent, on November 10, attempted to obtain Hovis' signature to a document stat- ing that he was demanding "his money in full," strongly suggests that the respondent did not believe that he had in fact quit his employment, but was seeking to obtain evidence on the basis of which it could claim that he had done so 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for its failure to reemploy him on November 10 and thereafter, when he asked for work. Apparently in an effort to explain its failure in this regard, the respondent, in its answer, as amended, to the com- plaint, makes the utterly false assertion that, after leaving on Novem- ber 8, Hovis never again reported for work or made application for further employment. Thomas Babcock admitted at the hearing that he knew of no reason why Hovis has not been reemployed. The respondent reemployed other persons who had quit. Hovis was admittedly one of the respondent's best riveters, the respondent was suffering from a shortage of skilled labor, and there have been work opportunities at the plant for Hovis.27 Upon all the evidence, we find that the operative cause of the respondent's discharge of Hovis and its failure to reemploy him was his union membership and. activities. No cogent reason has been advanced by the respondent for its conduct with respect to Hovis. Further, as already indicated, the respondent was suffering from a manpower shortage, and discharges at the plant were rare. Hovis had been in the respondent's employ for approximately 23 years, and he was considered by the respondent as exceedingly competent. Hovis was never advised by the respondent as to the reason for his discharge or its failure to reemploy him. The respondent had a strong antip- athy to the Union, and Hovis was one of the Union's most active protagonists, as well as its president. That a discriminatory motive underlay the respondent's treatment of Hovis is further evidenced by the condition imposed by the respondent, through George Meeker, to Hovis' reemployment-namely, that he abandon his affiliation "with the Union ,28 as well as by David Gruver's statement to the effect that if Hovis had not associated himself with the Union, he would have been employed at the plant. We find, as did the Trial Examiner, that by discharging Hovis, and by failing thereafter to reemploy him, the respondent has dis- criminated against him in regard to the hire and tenure of his employ- ment, 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. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find 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 27 Thus, Hovis was No. 9 riveter on the respondent 's seniority roster, and the respondent hired 12 new riveters between November 24, 1941. and May 18, 1942. 28The imposition of such a condition to Hovis' reemployment was in itself a plain viola- tion of Section 8 (3) of the Act, and we so find. GREENVILLE STEEL CAR COMPANY 621 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 unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondent discriminated in regard to the hire and tenure of employment of Earl Powell and Dewey Hovis. We shall, therefore, order the respondent to offer them immediate and full reinstatement to their -former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privi- leges. With regard to their back pay, the respondent contends that Powell and Hovis wilfully incurred losses of earnings subsequent to their discharge, for which they should not be reimbursed.29 This matter will be considered below. Powell did not make any effort to seek other employment until approximately 4 weeks after his discharge, at which time he obtained a position with the General American Transportation Company in Masury, Ohio. Powell was then approximately 58 years old. He testified that he did not apply for a position during those 4 weeks because of a practice in plants in and around Greenville, where Powell resided, of not hiring persons who were over 45 years of age. Powell's testimony regarding such practice was uncontradicted, and was supported by his further testimony that in the latter part of 1941 or early part of 1942, he was refused employment with a certain company located near Greenville because of his age. Also, it appears that during the afore-mentioned 4-week period, a union representa- tive was attempting to negotiate with the respondent for Powell's reinstatement; and, Powell believed that he might be reinstated. In view of all the foregoing, we are of the opinion, and we find, that Powell was not guilty of a wilful incurrence of a loss of earnings during the 4-week period following his discharge. Powell left the employ of the General American Transportation Company 'after working there for 3 weeks. According to his testi- mony, which we credit, he did so because of a transportation problem. This company was located approximately 21 miles from Greenville, and during the 3 weeks of his employment, Powell rode to and from work in the automobile of another person. After 3 weeks, he was no longer able to ride with this person, and he found no other means of transportation. There was no showing by the respondent that other means of transportation were in fact available. Under these 29 See Phelps Dodge Corp . V. N. L. R. B., 313 U. S. 177. 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances, we believe that Powell did not leave his employment with the General American Transportation Company without good cause, and we so find. For some time during the period from the early part of November 1941, when Powell left the employ of the General American Trans- portation Company, to May 13, 1942, when he commenced to work for the Fraser-Brace Engineering Company, where he was employed on the date of the hearing herein, Powell was-unemployed. However, he did secure some employment during that period' 30 and also made effort to obtain other employment 31 He also attempted to register at a United States Employment Service office. Upon all the evidence, we find that Powell did not wilfully incur any loss of earnings dur- ing this period. Hovis was apparently unemployed for some time during the period' between his discharge on November 10, 1941, and July 14, 1942, the date on which he secured the position occupied by him on the date of the hearing herein. However, during that period he made applica- tion for employment- with five companies located in and around Greenville,' where he resided. Also, he made a number of attempts to obtain reemployment with the respondent, and on some of these occasions was led by the respondent to believe that he might be re- employed. Under these circumstances, we believe that Hovis was not guilty of a wilful incurrence of a loss 'of earnings, and we so find. The respondent contends that the complaint, insofar as it alleges that it discriminated against Hovis, should be dismissed because of the Union's delay in filing a charge with respect to such discrimina- tion. An allegation concerning such discrimination first appears in the Union's second amended charge filed on April 10, 1942, approx- imately 5 months subsequent to Hovis' discharge. While we do not believe that the allegations of the complaint concerning such discrim- ination should be dismissed because of this delay, a question is raised as to whether Hovis should be denied back pay for the period of the delay. The record discloses and we find, that during that 5-month period, the Union was attempting to,negotiate with the respondent, as well as with the respondent's parent company with which the Union had contractual relations, for Hovis' reinstatement. Further, as already indicated, during this period Hovis made attempts to obtain reemployment, and the respondent led Hovis to believe that he might be reemployed. Under these circumstances, we believe that denial of-back pay for the period in question because of the afore-mentioned delay would be unwarranted, and we so find. s0 Thus, he performed some services for the Union for which be received $150, and did some work one day in April 1942 for a certain individual. a Thus, some time during the winter of 1941-1942, he made an unsuccessful attempt to secure a position with the company with which he is now employed. - GREENVILLE STEEL CAR COMPANY 623 Having found the contentions• advanced for denying Powell and Hovis back pay to be without merit, we shall order the respondent to make each of them whole for any loss of pay he has suffered because of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge 32 to the date of the respondent's offer of reinstatement, less his net earnings 33 during such period. Upon the basis of the foregoing findings of fact, and upon the en- tire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Steelworkers of America, Local Union No. 2440 (C. I. 0.), formerly known as Steel Workers Organizing Committee, Local Union No. 2440 (C. I. 0.), is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Earl Powell and Dewey Hovis, thereby discouraging mem- bership in United Steelworkers of America, Local, Union No. 2440 (C. I. 0.), the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, 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. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Greenville Steel Car Company, Greenville, Pennsylvania, and its of- ficers, agents, successors,'and assigns, shall: 1. Cease and desist from : while Powell was in fact discharged on September 13, 1941, when Fred Babcock advised Powell's son, Carl , that Powell would no longer be employed by the respondent, we find that since Powell did not intend to return to work until September 15, Powell's back pay should not commence to run until September 15. Hovis' back pay will commence to run on November 10, which is the date on which he was discharged , as well as the first date on which , on the theory that he had quit his employment , he was discriminatorily denied reemployment. 03 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 unlawtul discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company, S 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. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Discouraging membership in. United Steelworkers of America, Local Union No. 2440, affiliated with the Congress of Industrial Or- ganizations, or in any other labor organization of its employees, by discharging or refusing to reinstate or reemploy any of its employees, or in any other manner discriminating 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 ac- tivities 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 Earl Powell and Dewey Hovis immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges; (b) Make whole Earl Powell and Dewey Hovis for any loss of pay they have suffered because 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 from the date of his discharge 34 to the date of the respondent's offer of reinstatement, less his net earnings 35 during such period. (c) Post immediately in conspicuous places at its plant at Green- ville, Pennsylvania, and maintain for a period of not less than sixty (60) consecutive clays 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 United Steelworkers of America, Local Union No. 2440, affiliated with the Congress of Industrial Organizations, and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization; (d) Notify the Regional Director for the Sixth Region in writing within ten (10) 'days from the date of this Order what steps the re- spondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint, insofar as it al- leges that the respondent violated Section 8 (2) of the Act, be, and it hereby is, dismissed. MR. GIRD D. REILLY took no part in the consideration of the above Decision and Order. a' See footnote 32, supra. 35 See footnote 33, supra.