The General Fireproofing Co.

In the Matter of THE GENERAL FIREPROOFING COMPANY and UNITED STEELWORKERS OF AMERICA (CIO) Case No. 8-C-1574.-Decided November 20, 1944 DECISION AND ORDER Upon a complaint issued pursuant to charges filed by United Steel- workers of America (CIO), herein called the Union, against The General Fireproofing Company, Youngstown, Ohio, herein called the respondent, a hearing was held before a Trial Examiner in Youngs- town, Ohio, from February 24 to March 9, 1944, in which the Board, the respondent, and the Union participated by their representatives. The Board has reviewed the Trial Examiner's rulings on motions and on objections to the admission of evidence, and finds that no prejudicial error was committed. The rulings are hereby affirmed. On May 2, 1944, the Trial Examiner issued his Intermediate Report, a copy of which is attached hereto, in which he found that the re- spondent had engaged in unfair labor practices. Thereafter, the respondent filed Exceptions to the Intermediate Report and a brief in support of its exceptions. Oral argument was held before the Board at Washington, D. C., on July 11, 1944. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, except insofar as they are inconsistent with our findings and order hereinafter set forth. 1. We agree with the findings of the Trial Examiner with respect to the violations of Section 8 (1) of the Act committed by the re- spondent both before and after the 'settlement agreement of Septem- ber 9, 1943.1 Assistant Employment Manager Morgan, to whom 1 With respect to the anti-union remarks attributed to Employment Manager Forman by Wetberill on the occasion, in November 1942, when the latter applied for a position at the respondent's plant , while they manifest the respondent's anti-union attitude , we make no finding of unfair labor practices based upon such remarks, since they were made prior to the period covered by the complaint. Also, in finding that the respondent violated Section 8 (1) of the Act, we do not rely upon its alleged action in falsely accusing employees of soliciting for the Union on company time, since it appears that the respondent had some reason to believe that they had in fact engaged in such conduct. Nor do we agree with the 59 N. L. R. B., No. 80. 375 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD numerous anti-union statements and inquiries concerning the Union were attributed by witnesses for the Board, denied making such statements and inquiries. We do not credit his denials. Morgan did not impress us as a forthright and credible witness. On the other hand, the persons 2 who testified regarding the questions and statements which were addressed to them by Morgan, did impress us as trustworthy witnesses. We likewise discredit the denial' of Stephen Stanislav 3 that in April- 1943, -while union organizers were distributing union leaflets at the employees' entrance to the respond- ent's plant, he stood near the gate, advised employees not to accept the leaflets, and called the union organizers racketeers. Trafzer, who testified to this occurrence, was a candid witness, and her testimony impressed us as being more credible than that given by Stanislav. Nor do we credit Employment Manager Forman's denials concerning the acts and statements in February and June 1943 attributed to him by employee Collins, the latter having impressed us as the more trust- worthy witness. 2. We agree with the Trial Examiner that the respondent's' dis- charge of Markovich was discriminatory. In addition to the cir- cumstances set forth by the Trial Examiner in support of that con- clusion, we note that Markovich denied Leadman Bentley's testis mony that prior to Markovich's discharge he had criticized Marko- vich for poor workmanship. Upon the entire record, including the fact that Markovich impressed us a more trustworthy witness than Bentley, we credit Markovich's denial. 3. We agree e with the Trial 'Examiner that employee Marjorie Trafzer was discharged by the respondent on May 4, .1943, because of her union membership and activities. The respondent contends that it discharged Trafzer because on May 1, 3, and 4, 1943, she was absent from work without ' permission and without notifying the respondent .4 Trafzer's foreman testified that prior to the afore- mentioned absence, Trafzer had "laid off three times . . . without reporting off and that was why I discharged her." The record re- futes these contentions, as is demonstrated by the following: (1) The finding of the Trial Examiner that sometime after Fabrazio entered the respondent 's employ, a fellow employee asked him to join the Union , and that Fabrazio refused to do so , giving as his reason the fact that Morgan had advised him against joining the Union. The record does not establish to our satisfaction that on the occasion in question , Fabrazio was asked' to loin the Union ; rather it indicates, though the testimony with respect thereto is not entirely clear, that Fabrazio merely repeated to his fellow employee the conversation which he had had with Morgan. 2 Among these was William Jacobson , whose testimony Morgan denied. 3 We find that Stanislav exercises supervisory functions , and is identified by the respond- ent's employees with management . The record reveals that , as part of his functions, Stanislav instructs the respondent's plant guards as to their duties, and oversees their work. Also, Stanislav wears an identification badge of a distinctive color which is worn only by foremen and other supervisors. 4 May 2 fell on a Sunday , on which day the plant is closed. THE GENERAL FIREPROOFING COMPANY 377' respondent's own records disclose that prior to May 1, Trafzer had been absent, without reporting, on only one occasion.5 (2) Trafzer's testimony, which was corroborated by that of a neighbor of hers, and which we credit, was to the effect that her absence from May 1 to 4 was caused by illness which was reported on May 1 by telephone to, the respondent's personnel ofice.° (3) Trafzer's foreman admitted that the respondent had no specific policy with respect to its treat- ment of employees who absented themselves from work; and that Trafzer was the only employee he had ever discharged for that; cause. (4) Other employees had admittedly been absent without permission or notification, - without' being discharged or otherwise disciplined therefor. The circumstances upon which we rely in finding that Trafzer's discharge was discriminatory are as follows: (1) The inadequacy of the reason advanced by the respondent for her discharge, as sum marized above. (2) Trafzer joined the Union about 41/2 weeks before her discharge, and thereafter spoke on behalf of the Union to some of her fellow employees coming to and going from work. (3) About a week prior to her discharge, Trafzer was asked by Assistant Per- sonliel Manager Morgan, whether or not, before entering the plant that day, she had stopped to talk to a "CIO guy" who was dis-' tributing union literature. When Trafzer admitted that she had, Morgan asked her if she belonged to the Union, and she replied iA the affirmative. Morgan thereupon asked her to give him her clock number and the name of her foreman, which she did. (4) The re-' spondent's other acts of discrimination, as well as its general anti-; union conduct. 4. For the reasons set forth below, we agree with the Trial Exam- iner's conclusion that the respondent's refusal to employ Quinn on the production line, for which employment Quinn had made application, was discriminatory. The respondent urges that its refusal in this re- gard was justified, since it offered him two other positions, namely; 6 From February 10, 1943, the date on which Trafzer was hired by the respondent, to May 1, she had been absent from work only three times-twice with permission (March 27 and April 10), and once without notifying the respondent (March 26 ). Trafzer's foreman testified that on one occasion prior to May 1, he warned Trafzer that she would be dis- charged if she absented herself from work without permission , or without notifying the respondent. Trafzer, who impressed us as being the more credible witness , denied that' she had been so warned . We credit her denial. 6 When Trafzer was unable to go to work on May 1, because of illness, she requested the above-mentioned neighbor to notify the respondent of that fact The neighbor testified that on May 1, she telephoned the respondent's personnel department, and reported that Trafzer was ill and would be unable to work for several days . Though Trafzer, in an affidavit sworn to on May 12, 1943 , averred that her request of the neighbor to call was made on May 3, she testified at the hearing that this request was made on the first day of her absence. The respondent introduced no evidence showing that such a telephone call, had not been made to its personnel office some time prior to May 4, the date of Trafzer's discharge. We find that Trafzer's illness was reported to the respondent by her neighbor on May 1 and, in any event, prior to the time Trafzer was discharged. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office work, and a position as a tool and die maker apprentice, both of which he rejected, and it was under no obligation to employ him in any particular position. In effect, the respondent's contentiQn is that it offered Quinn the type of work 'for which it. believed he was best fitted, and that it had no discriminatory motive in refusing to employ him on the production line. This contention is refuted by the combina- tion of the following circumstances: (1) During the 3-month period immediately following the respondent's refusal to employ Quinn as a production worker, it employed about 330 new employees in the pro- duction department. (2) The respondent makes no claim and adduced no evidence to show that Quinn was unfitted for work on the produc- tion line. (3) The record discloses that only 2 months before Quinn applied for work, another applicant for employment rejected the respond'ent's' offer of an office position on the ground that"she preferred to work "in the plant," and that 2 weeks following this rejection she was given employment in the plant. (4) During the period in ques- tion, the Union was attempting to organize the employees on the pro- duction line, and the respondent admittedly knew that Quinn was the son of the district director of the Union. The positions which the respondent did offer to Quinn were one in the office, which the Union was not seeking to organize, and one as a tool and die maker apprentice, which, because of its undesirable aspects, the respondent had reason to believe Quinn -would reject 7 (5) The respondent's anti-union attitude and conduct, as disclosed by the record as a whole, lends weight to the inference, which we draw, that, because of Quinn's close relation to an official of the Union, it was unwilling to employ Quinn in that,part of its plant which the Union was then attempting to organize. Remedy We are of the opinion that since Trafzer, Curotla, and Markovich were discriminatorily discharged by the respondent, they should be awarded back pay from the date of the discrimination against them to the date of the respondent's offer of reinstatement to them, which was made pursuant to the settlement agreement entered into between the respondent and the Union in September 1943. The agreement is clearly no bar to such a back-pay award. We have consistently refused to give effect to a settlement or compromise of unfair labor practices "where [the] employer violates it or continues a course of unfair labor * We find it unnecessary to determine precisely when the offer of the office position was made to Quinn, or whether Assistant Employment Manager Morgan , at some point during his interviews with Quinn, had expressed an eagerness to place Quinn on the production line. ,It is sufcient that the respondent , through Morgan , admitted having knowledge of Quinn's relation to the district director of the Union , and that the "respondent refused"` to employ Quinn on the production line. THE GENERAL FIREPROOFING COMPANY 379 practices." 8 In the instant case, it is clear that the respondent com- mitted unfair labor practices subsequent to the settlement agreement. It is further to be noted that, as part of that agreement, the Union Specifically reserved the right to "reenter [its] charges in case of any further violations" of the Act by the respondent, and that, in view of such further violations by the respondent, the Union did reenter its charges against' it in the instant case. In view of the foregoing,,we have refused to honor the settlement agreement and have made find- ings of unfair labor practices, including discriminatory discharges of the afore-mentioned employees, covering the period prior to ( as well as after) the execution of the agreement. Under these circumstances, we see no reason for not applying our normal remedy with respect to the unfair labor practices committed prior to the agreement, including an award of back pay for the employees who were discriminatorily dis- charged.' Only through such remedy will the effects of the respond- ent's unfair labor practices be entirely dissipated and the policies of the Act be fully effectuated. As found above, in view of the respondent's commission of unfair labor practices subsequent to the settlement agreement, we do not consider that agreement a bar to a determination of unfair labor prac- tices committed by the respondent prior thereto and the application of our usual remedies in order to dissipate the effects of such unfair labor practices. Nevertheless, we recognize that the agreement was valid when made. Under the terms of the settlement, which were mutually agreed upon by the respondent and the Union, the respondent was to offer reinstatement, without back pay, to Trafzer, Curotla, and Marko- vich. The first two accepted that offer and returned to work. Marko- vich, however, rejected the offer of reinstatement on the ground that it was not accompanied by back pay. Since the offer of reinstatement was made to Markovich pursuant to an agreement which was entered into on his behalf by the Union, his duly designated representative, and since the agreement was not invalid at that time, it was incumbent upon Markovich to accept the offer on the terms which had been agreed upon. Having rejected an offer of reinstatement which was valid when made, we shall not require the respondent to renew its offer of reinstatement to Markovich or to grant him back pay for the period follo'cding the date of its afore-mentioned offer. We do not agree with the Trial Examiner that the discrimination against Quinn occurred on October 26, 1943. The record reveals that it was not until November 23 that the respondent definitely <r,•efused 8 Matter of Armour Fertilizer Works, Inc, 46 N . L. R B 629, 656; Matter of American Cyanamid Co., 37 N L R. B. 579; Matter of Taylor-Colquttt Co , 47 N. L. R. B. 225, 242, enf'd, 140 F ( 2d) 92 (C. C A. 4). e As for our usual remedy of reinstatement , we note that Trafzer and Curotla have already been reinstated pursuant to the terms of the settlement agreement . The case of Markovich in this regard is discussed below. `^$Q DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quinn employment on the production line. Since, almost immedi- ately after November 23, Quinn was referred by the United States Employment Service to a position in another plant located in Youngs- town, Ohio, and Quinii failed to take any action in response to that referral, we shall not order back pay for Quinn?° ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relation's Act, the National Labor Relations Board hereby orders that the respondent, The General Fireproofing Company, Youngstown, Ohio, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Steelworkers of America,. affiliated with the Congress of Industrial Organizations, or in any other labor organization' of its employees, by discharging or refusing to reinstate any of its employees, or by refusing to hire applicants for employment, or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment; (b) In any other manner interfering with,, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose 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) Make whole Michael Markovich, Marjorie Trafzer, and James Curotla for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he or she normally would have earned as wages from the date of the respondent's discrimination against him or her, to the date on which the respondent offered rein- statement to him or her, less his or her net earnings during such period; (b) Offer to James P. Quinn immediate employment on the pro- duction line, or in a substantially equivalent position, with such senior- ity and other rights and privileges as he would have enjoyed had he not been discriminatorily denied employment; 10 See Matter of The Ohio Public Service Company, 52 N. L. R. B. 725. THE GENERAL FIREPROOFING COMPANY 381 (c) Post immediately in conspicuous places at its plant in Youngs- town, Ohio, and maintain for a period of at least sixty ( 60) consecu , tive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and (3) that the respond- ent's employees are free to become and remain members of United Steelworkers of America, affiliated with the Congress of Industrial Organizations, and that the respondent will not discriminate against any employee or any applicant for employment because of member- ship or activity in that organization; (d) Notify the Regional Director for the Eighth Region in writing, within ten (10) days from the date of this Order, what'steps the re- spondent has taken to comply herewith. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Frank L Danello, for ,the Board. Messrs Harrtngton, Huxley, & Smith, of Youngstown, Ohio, by Mr. Normal A. Emery and Mr. Harry S. Manchester, for the respondent. Mr. James P. Griffin, of Youngstown, Ohio, for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed'on February 2, 1944, by United Steel- workers of America, affiliated with the Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eighth Region ( Cleveland, Ohio ), issued its complaint on February 8, 1944, against The General Fireproofing Company, Youngstown, 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 the second amended charge, with 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) from on or about January 1, 1943, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by (a) interrogating its employees concerning their union affiliations , ( b) advising, urging, and warning its employees to refrain from assisting, joining, becoming, or remaining members of the Union , ( c) vilifying and disparaging the Union, its members, and its leaders , ( d) interfering with and restraining the Union and its leaders in the distribution of union leaflets and literature'on the public streets near the respondent's plant, ( e) observing and noting the employees who took union leaflets and literature during the public distribution thereof, and (f) communicating to its employees warnings in order to discourage and prevent them from engaging in concerted activities for their 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mutual aid and protection; (2) discharged Michael Markovich on or about March 20, 1943, Marjorie Trafzer on or about April 30, 1943, and James Curotla on or about June 11, 1943, for the reason that they, and each of them, had joined and assisted the Union and had engaged in concerted activities with their fellow employees for the purpose of collective bargaining and other mutual aid and pro- tection; and (3) since on or about October 26, 1943, refused to employ James P. Quinn because he had joined and assisted the Union. On February 24, 1944, the respondent filed an aswer admitting, in effect, all the allegations of the complaint pertaining to the existence of the respondent and the nature, character, and extent of the business transacted by it, as well as the allegations that the Union was a labor organization within the meaning of the Act. The answer denied, however, all the allegations of any unfair labor prac- tices. The answer also averred, in effect, (1) that on or about September 9, 1943, a certain agreement was entered into by and between the respondent and the Union, which agreement received the approval or acquiescence of the Regional Director for the Eighth Region, and (2) that since the respondent has performed all the terms and conditions of the said agreement on its part to be performed, the complaint should be dismissed, especially those allegations respecting the alleged unfair labor practices which occurred prior to the entering into of the said agreement. Pursuant to notice, a hearing was held from February 24 to March 9, 1944, at Youngstown, Ohio, before Howard Myers, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, the Union by a representative. All parties partici- pated in the hearing and full opportunity was afforded them to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the beginning of the hearing, on the notion of the respondent, all prospective witnesses were excluded from the hearing room until their turn to testify. At the conclusion of the taking of testimony, counsel for the Board moved to conform the pleadings to the proof. The motion was granted wothout objec- tion. The respondent's counsel then moved to dismiss the complaint for lack of proof. Decision thereon was -reserved. The motion is hereby denied. Oral argument, in which all parties participated, was heard at the conclusion of the taking of the evidence and is part of the record. The parties stated that they did not desire to file briefs with the undersigned and none has been received by him. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes, in addition to the above, the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT' The General Fireproofing Company, an Ohio corporation, has its principal offices and place of business at Youngstown, Ohio, where it is engaged in the manufac- ture, sale and distribution of aircraft parts for the United States Government. During 1943, the respondent purchased raw materials, principally aluminum, valued in excess of $5,000,000 of which amount more than 90 percent was shipped to its plant from points outside the State of Ohio. During the same year, the respondent sold finished products valued in excess of $1,000.000, of which more than 00 percent were shipped to points outside the State of Ohio. 1 The findings in this section are based upon a stipulation entered into by counsel for the Board and the respondent. THE GENERAL FIREPROOFING COMPANY 383 II, THE ORGANIZATION INVOLVED United Steelworkers of America is a labor organization affiliated with the Congress of Industrial Organizations and admits to membership employees of the respondent. III THE UNFAIR LA130R PRACTICES A. Interference, restraint and goercion 1. Conduct of the respondent's officials and sponsors For at least 23 years prior to September 1943, the respondent's printed em- ployee application blanks contained, among others, the following question : "What labor organization do you belong to?" All applicants for work were required to answer this question. After the blank had been filled out and signed, the ap- plicant was then interviewed by the Employment Manager, or by one of his assistants, who orally asked the applicant if he belonged to any labor organ- ization 2 The oral reply then would be checked against the answer on the blank. Walter Forman testified that he has been the respondent's employment manager for approximately 20 years ; that at the time he assumed that office the respondent was engaged to a great extent in contract work on public buildings ; that one of the first tasks he did as employment manager was to prepare a new application blank; and that the question regarding the applicants' union affilia- tion was put on the blank in order to enable the respondent to place union men on the jobs that called for union labor. Whatever may have been the merit of Forman's reason for querying an applicant regarding his union affiliation prior to the fall of 1942, when the respondent converted its plant for the manufacture of aircraft parts for the United States Government, the record is clear that the respondent continued thereafter to interrogate the applicants regarding their union affiliation for the sole purpose of defeating the Union's renewed organiza- tional drive.' Thus, according to the credible testimony of former employee Wetherill, some time in November 1942 he applied to Forman, whom he had known for several years, for a job and was asked by Furman whether he be- longed to a labor union. When Wetherill informed Forman that he had at one time had belonged to the A F. of L Bartenders' Union but had secured a with- drawal card, Forman replied, "Well, that's all right. We don't stand for Union here." Forman did not deny making the statement attributed to him by Wetherill. He admitted knowing Wetherill for several years but stated, how- ever, that he did not believe that he interviewed him. The undersigned finds that Forman interviewed Wetherill when the latter applied for a job in November 1942, and that Forman made the statement attributed to him by Wetherill. As shown below, Forman was hostile to the Union and plainly exhibited this hostility to the employees. In February, 1943, Bertha Collins applied for a job- at the plant According to her testimony the following, in part, took place during her interview with Forman : A. I was called into his (Forian's) office, and he looked over my applica- tion and then asked me where-he looked over my application and saw that 2 Since the early part of September 1943, this question has been "blanked out" on the application form or deleted entirely. This was done pursuant to an oral settlement entered into by the respondent and the Union, with the approval or acquiescence of the Regional Director for the Eighth Region, of a certain charge then pending before the Board. This settlement is discussed at length below . The respondent , however , did not discontinue verbally to ask that question of new applicants 3 The record discloses that since 1937, the Union, from time to time, attempted to organize the respondent's employees. 618683-45-vol. 59-26 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I hadn't signed at this particular place, at this particular place where it stated, "Do you belong to any labor organization?" He asked me if I- did belong to any labor organization and I said no. He said, "You might as well tell me because I will find out anyway." By BoARw's CouNsEL: Q. Who was saying this? A. Mr. Forman. And I said, "Yes, I did belong to the Union when I worked at McKenzie Muffler Company and Goodyear Aircraft Company in Akron. And he said, "Are you active in the Union?" And I said, "No. I am con- sidered an honorary member." ° He said, "Well, we don't want any Union in here. We have never had one. And we don't want any." Forman admitted that he interviewed Collins and that she did not answer the question, which appeared on her application blank, regarding her union affilia- tions. He denied, however, that he asked her if she belonged to a labor organiza- tion. He also denied that he told her that the respondent did not want a labor organization in the plant. The undersigned is unable to give any credence to Forman's denials First of all Collins was an honest and forthright witness. Forman was not. Secondly, just prior to testifying about his interview with Collins, Forman admitted that before September 1943, it was the respondent's policy to interrogate each new applicant regarding his or her union affiliation, even though the applicant had answered that question on the application blank. Furthermore, Jane Ram and,Byron Morgan' both testified that upon instructions from Forman, they asked new applicants, prior to September 1, 1943, regarding their union affiliation, even though the applicants had stated upon their applica- tion blank that they were or were not members of a union. Forman was not the only official of the respondent who made anti-union state- ments to the employees. The record contains abundant credible evidence that Morgan and Ram made derogatory statements to prospective employees during their initial interviews. Thus, according to the undenied credible testimony of John Matijasic, Morgan said to him and four or five other applicants who were standing at Morgan's desk, after Morgan had interviewed them, that the respond- ent did not want any union in the plant because "the union is just a bunch of trouble and causes strikes." When Roy Davis applied for a job in April 1943, he was interviewed by Morgan. According to Davis the following took place at that interview with respect to unions: He (Morgan) asked me if I belonged to any [union] and I told him no. And he said, "Well, we don't have anything to do with them labor organiza- tions out here. We run one nice, big healthy family out here and we don't get into any trouble and you don't need to pay any money to these racketeers, and you just have to-be nice in the shop. If you ever have any trouble of any kind just come up to see us We are just a big happy family here. We don't have any trouble whatsoever. And I will see that you are taken good care of. Everything will be all right." Regarding this conversation Morgan testified as follows : ' Collins explained that by "honorary member" she meant that after,she,left the Goodyear Aircraft Company she was carried on the' CIO books as a non-dues paying member until she was again employed in a plant which had - a contract with the CIO 5 The record is clear that both Ram and Morgan are supervisors within the meaning of the Act The former testified that she is Forman's secretary, that she is an interviewer of new female applicants, that she has charge of all the clerical work in the employment office, and that she supervises the work of the seven girls employed in that office . Morgan is the respondents assistant employment manager. THE GENERAL FIREPROOFING COMPANY 385 By RESPONDENT'S COUNSEL: Q. What is the fact as to whether or not, at the time you interviewed him, [Davis] you asked him whether or not he belonged to any labor organization? A. I asked all questions, including that. Q. What is the fact as to whether or not you said to him, in words or substance : Well, we don't have anything to do with them labor organizations out here. We run one nice, big, healthy family out here and we don't get into any trouble, and you don't have to be nice in the shop If you ever have any trouble of any kind, just come up to see us. We are just a big, happy family here ; we don't have any trouble whatsoever. And I will see that you a're taken good care of. Everything will be all right. A. I asked nothing other than what labor organization he belonged to. The undersigned finds that Davis' version of this interview is substantially ac- curate. The undersigned is unable to credit any of Morgan's testimony, except where corroborated by credible evidence As noted more fully hereinafter, par- ticularly in the cases of Curotla and Quinn, Morgan was outspoken in his antip- athy toward the Union, and frequently engaged in conduct designed to discour- age membership therein. According to the credible testimony of Anthony Fusillo, he applied for a job .in May 1943,° and during his interview with Morgan the latter told him not to join the CIO which "was trying to get into the plant." Morgan elicited a promise from Fusillo that he would not join and they shook hands upon it. Morgan denied making the statements attributed to him by Fusillo or shaking hands with him at that interview. For the reasons set forth above, the undersigned does not accept Morgan's denials as true and finds Fusillo's testimony to be substantially in accord with the facts. In June 1943, Carl Delvic applied for a job and was interviewed by Morgan. As a witness Delvic thus described what took place with respect to unions during that interview : He (Morgan) looked my application over. He says-he told me how much I would expect to make out there and he says, "I see you used to belong to the Union, AFL." I says, "Yes." He says, "Well, that's all right." He says, "but the CIO," he says, "what do you think of that?" I said, "I don't know anything about it." He says, "You lived in this town all your life."' He says, "You don't have to belong to an organization like that to work out here." Morgan denied having the conversation as testified by Delvic. The under- signed rejects Morgan's denial and finds the conversation was substantially as related by Delvic. Dorothy Jackson testified that she. was first employed by the respondent in the latter part of April 1943; that she was interviewed by Ram ; ° that during the interview Ram asked her if she belonged to any labor organization ; that she replied in the negative ; and that Ram then said, 1"You know, we don't be- lieve in any unions out here." When Ram was questioned by respondent's ° The respondent's employment records show that 'Fusillo applied for a job in June 1943. Evidently Fusillo was mistaken as to the date of his interview with Morgan. The undersigned finds that the interview took place in June 1943. 4 Jackson could not recall the name of the person who interviewed her. Ram was called as a witness by the respondent and admitted that she interviewed Jackson before the latter was hired. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counsel as to whether the above quoted statement was true Ram testified "No, sir. We were not permitted to say that." The undersigned finds that Ram made the above quoted statement. Ram was anxious, like Forman and Mor- gan, to forestall the union's organizational drive. This finding is buttressed by the undisputed credible testimony of Paul Harahuc who testified that sometime in the Fall of 1943, Ram called him into the employment office and asked him whether or not the females in Harahuc's department were joining the Union. On June 16, 1943, the Regional Director for the Board's Eighth ,Region wrote the respondent a letter stating that the ' Union had that day filed a charge alleging that the respondent had violated Section 8 (1) and (3) of the Act by, among other things, discriminatorily discharging Martin Schindler,' Michael Markovich, Marjorie Trafzer, and James Curotla on stated dates. Pursuant to the request contained in that letter, Bender, the vice president in charge of operations, on June 19, wrote the Regional Director setting forth the re- spondent's reasons for discharging the four named persons. Shortly thereafter Bender and a Field Examiner of the Board conferred. On July 3, the Field Examiner mailed a proposed settlement agreement to Bender. On July 12 and on August 26, Bender and Harry A. Manchester, one of the respondent's at- torneys, conferred with the Regional Director at the Board's offices in Cleve- land, where the parties discussed the proposed settlement agreement .9 Accord- ing to the undenied credible testimony of Manchester, he and Bender left the Regional Office on August 26, with the understanding that the respondent would immediately submit to the Union for its approval the proposed settle- ment discussed with the Regional Director which provided that the respondent delete from the application blank the question regarding the applicant's union affiliation, to post the usual notice regarding the employees' rights under the Act, and to reinstate, without back pay, Markovich, Trafzer and Curotla, and if the Union and the respondent settled the matter, either on the terms as outlined above or on some other terms which the Union might submit to the respondent and which were acceptable to the respondent, the Regional Director would allow the Union to withdraw the pending charge ; that on August 30, he conferred with the Union's representatives and they orally accepted the re- spondent's terms ; that on or about September 1, the respondent "blanked out" and later deleted entirely, from its application blank the question regarding the applicant's union affiliation and posted on the various bulletin boards located in the plant a notice to its employees stating that the respondent would not in any manner interfere with the employees' right to self-organization or discrimi- nate against any employee who joined or assisted a labor organization ; that on or about September 9; the Union sent him a copy of a letter which it had sent that day to the Regional Director, wherein it advised the Regional Director that "the General Fireproofing Company is complying with the terms of our verbal agreement to reinstate the worker's previously discharged, and to post notices in the various departments throughout the plant. We desire to withdraw the charges that have been filed against said company. However, in case of any further violations, we reserve the right to re-enter our charges"; that on the same day he telephoned to the Regional Director and told him that the matter 8 Neither the second amended charge nor the complaint herein refers to Schindler as being discriminatorily discharged. s During these discussions with the Regional Director and the Meld Examiner the re- spondent's representatives maintained that the respondent had not violated the Act, but was willing to settle the controversy because the respondent was engaged in producing articles vitally needed for the war effort and therefore it did not wish to spend any time defending the complaint which the Board was then contemplating issuing. THE GENERAL FIREPROOFING COMPANY 387 had been settled to the complete satisfaction of the respondent and the Union ; that the Regional Director replied that he had not as yet received the Union's letter but would telephone the Union to ascertain if his statement was correct; that, later that day the Regional Director telephoned him and said. that he had spoken to the Union's representatives and Manchester's statement that the Union and the respondent had settled the matter was correct and that if the Union desired to withdraw the pending charge, he, the Regional Director, "sup- posed they could do so" although he had not taken that question up with the Board's legal department; and that the three dischargees.were offered reinstate- ment, the notices posted, and the question regarding an applicant's union affilia- tion was deleted from the application blank.'0 The record contains ample proof that the respondent did not cease interrogat- ing prospective employees regarding their union affiliations, if any, after the respondent had "blanked out", or deleted, from the application blank the question: "What labor organization do you belong to?" James Quinn testified, and the undersigned finds, that on October 26, 1943, he applied for a job at the respondent's plant, was interviewed by Morgan, and that during the interview Morgan asked him whether he belonged to a union." Morgan denied that he asked Quinn whether or not he belonged to a labor organization. The undersigned does not credit Morgan's denial. In November, 1943, Anthony Fabrazio applied for a job and was told by Morgan during the interview "not to join a union . . . that the union was no good. ..f12 In December, 1943, William Jacobson applied for a job and dur- ing his interview with Morgan the following occurred, according to Jacobson's credible testimony : , Well, Mr. Morgan asked me where I was hired last, where I worked previously, and I told him McKenzie Muffler, and then he said, "That is a radical place, isn't it?" And I asked him what he meant by that. He said, "Well, they have a union there, don't they?" And I said yes. He said, "It just complicates things, doesn't it, you belonging to the union?" And I said, "No." He says, "Do you belong to the Union?" And I said no. Of course,- I was really telling the story to him because I was anxious to get into that employment . . . And he said to me, "Well, we don't have a union out here. We have what you call a company union. The CIO has been trying to get in, but, so far, they haven't, been in." So he asked me, and-oh, about the union, and what harm it does the war effort to go out on strike, and the soldiers over there lose a lot of supplies, and all that. He gave me a talk on patriotism. Well, that is about all I can really think of at the present time On January 31, 1944,n Myron Booth applied for a job. During the interview he had with Forman and Morgan he was asked by Forman if he belonged to a 10 This settlement is discussed more fully below under the section entitled "Concluding Findings." 11 This interview with Morgan is discussed more fully below. 12 Sometime after becoming an employee of the respondent, an adherent of the Union asked Fabrazio to join. Fabrazio declined, stating that Morgan had advised him against joining the Union. 13 Booth testified that he- was in respondent's employ from February 14 to February 21, 1944. The respondent's record shows, and the undersigned finds, that Booth was in its employ from January 31 to February 8, 1944. Evidently Booth was mistaken regarding the dates of his employment. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union. Before being hired, he was told by Forman and Morgan not to, join the Union. In February, 1944, Albert De Pasqua applied for a job,and during the interview Morgan told him "not to join any CIO unions . . . [not to] join up with any racketeers, . . . because all the money you earn will be yours." 14 Up to the time of the hearing, De Pasqua had not become a member of the Union. The respondent's anti-union animus was not confined merely to advising new employees to refrain from becoming- members of the Union or to making dis- paraging statements about the Union, its members and leaders, but the re- spondent, through its supervisory officials, openly denounced and disparaged the Union to the persons already in its employ. Thus, credible evidence shows that during the Spring of 1943, Forman, Morgan, and Stephen Stanislav 16 stood at the gate through which the employees enter and leave the plant while the organizers were distributing leaflets and, in the presence of the employees, denounced the distributors. Marjorie Trafzer testified that in April 1943, while she and some of her co-workers were entering the plant she saw Morgan and Stanislav-near. the gate and "Stanislav was hollering to the [distributors of the leaflets] and, calling them racketeers and saying cuss words and [telling] the girls not to accept the leaflets." le _ Wetherill testified that one afternoon in May 1943, as he was entering the plant he saw Forman at the gate ; heard him call into the employment office, a couple of girls, who had just accepted leaflets from the distributors, and saw him take the leaflets away from them." - In June, Forman called Bertha Collins into his office and discussed with her a letter which the respondent had received from a certain collection agency with respect to a claim against her. Collins testified that after discussing the letter and after being informed by Forman that he would assist her in the matter, the subject of unions was brought up by Forman and the following conversation, in substance, was had : He asked me if I had been trying to organize any of the people in the General Fireproofing and I said no. He said, "Well," he said, "we don't want you to. We don't want a union in here. We never had and we don't want any." He said, "Anybody that has any sons or brothers in the armed forces should be ashamed to belong to a labor organization." He said, "They are nothing but a cheap bunch of racketeers. All they want in your dollar and when you don't have the dollar, they throw you out." He said, "If you have any dollars to throw away you had better put them in any insurance policy, for your son, and," he said, "you had better think this over and," he said, "if you don't like the way things are going around here, or the way we run things, we wish you would leave." 14 The findings regarding what Forman and Morgan said to Fabrazio , Booth , and De Pasqua are based upon the credible testimony of the last named three. Forman and Morgan denied making the statements attributed to them. The undersigned does not credit their denials for reasons set forth heretofore. 0 Also referred to in the record as Stanislaz and Stanislav . Stanislav has charge of the fingerprinting and photography departments as well as being the supervisor of the plant piotection guards. 11 Stanislav denied making this statement . The undersigned does not credit his denial. Stanislav is subordinate to Forman , whose anti-union conduct has been described. 17 Forman denied this incident . The undersigned does not accept his denial . The finding that Wetherill's testimony is in accord with the facts is buttressed by the undenied credible testimony of Gene Naples who testified that on one occasion he saw Forman standing near - the employees' entrance watching the organizers distribute leaflets to the employees entering the plant and that Forman called the distributors racketeers. THE GENERAL FIREPROOFING COMPANY 389 Forman, admitted that he called Collins into his office upon the receipt of the letter and discussed it with her but denied that he made any derogatory state- ment against the Union. He did not deny, however, that the subject of unions was discussed. It will be recalled that Forman denied that he asked Collins, when he interviewed her in February, whether she belonged to any labor organ- ization despite the fact=that she did not answer that question on her, application blank and in face of his previous testimony that it was at that time the re- spondent's policy to ascertain to what labor organization, if any, the applicant belonged. The undersigned does not credit Forman's denial and finds that he made the statements attributed to him by Collins. Moreover, Forman did not deny Collins' testimony to the effect that, when he interviewed her in February, after she : told him that she was not a member of any labor organization, said to her "you might as well tell me because I will find out anyway." Collins also testified that on several occasions, during her short employment with the re- spondent, she discussed with her foreman, Frank Chufo,18 the working con- ditions at the Goodyear Aircraft Company, where Collins worked previously, with those at the respondent's plant ; that during one of these conversations Collins informed Chufo that she was a member of the Union and he replied that he was aware of that fact; and that on one occasion when Chufo and Collins were discussing unions in general, the former told her that while he could not, advise any employee to join or not to join a union, it was, however, his "business to keep the employees satisfied so that they don't join the union." Chufo admitted discussing with Collins the working conditions at the Goodyear Aircraft plant with those at the respondent's plant, but denied that he said that it was "his business to keep the employees satisfied so that they don't join the union." The undersigned does not credit his denial and finds that he made the statement attributed to him by Collins.- Barbara Huzicka, an active member of the Union, testified that in September she saw James Griffin, a staff representative of the Union, distributing leaflets near the plant ; that she stopped to speak to him; that as she was entering the employees' entrance of the plant she was stopped by Tony De Piero,19 a plant protection guard, who said to her that she "was being watched from the per- sonnel office and that Mr. Forman had informed him to find out who [ she] was and what department [she] worked in, and to give [her] orders not to be seen talking to" Griffin ; and that later that day De Piero came into her department and told her that on "direct orders from Mr. Forman" she was not to speak to Griffin near the plant but that she might speak to-him downtown if.she, desired to talk to him, at all. De Piero did not deny that Forman asked him to ascer- tain the name and department' number of the girl who was seen talking to Griffin nor did he deny that Forman told him that he was to inform Huzicka not to be seen talking to Griffin. He did deny, however, that he had been in- structed by Forman to go to Huzicka's department to warn her against talking to Griffin near the plant. De Piero testified he went to Huzicka's department on his own volition to advise her against being seen talking to Griffin because of certain remarks that he overheard "different people" make about her speaking to Griffin. Forman's only testimony regarding this incident is as follows : By RESPONDENT'S COUNSEL: Q. Did you at any time, Mr. Forman, either instruct or request Mr. De Piero to go out in the plant and admonish an employee by the name of Barbara Huzicka? A. No, sir. 18 Also referred to in the record as Shuffold. 21 Also referred to in the record as Debero. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The undersigned finds the testimony of Barbara Huzicka to be substantially in accord with the facts and that Forman did instruct De Piero to warn her against talking to Griffin near the plant. Paul Harahuc testified that sometime in the latter part, of October . or early, in November, he came to the plant with his brother-in-law, introduced him to Forman, and after the introductions had been made, Forman called him into his private office and asked him if he belonged to the Union ; that he replied in the negative ; and that Forman then asked him to ascertain for him the names of the "ringleaders" of the Union because "someday" the ringleaders "would be out in the cold." Harahuc further testified that in January 1944, after being honorably discharged from the United States Navy, he applied to Forman for reinstatement and that during the interview the following took place : A. I told him I wanted to go back to work and be got my folder out and called me back in the back room, there, where he interviews everybody, where he interviewed people, and told me, "What's this I hear about your signing up them racketeers?" I said, •"What do you mean?" He said, "Well, I had reports from Earl Hahn you signed members up down in the department, there." I told him I was signing- them up and taking the membership cards and throwing them in the can, so- Q. What did Mr. Forman say? A. He said "Keep up the good work," he said. He said, "Some days them rats will realize-when this war will all be over them rats will be out and you will be here." * s s • * s s Q. (By Mr. Danello) What if anything else did Mr. Forman tell you on that day? A. He said they was a big bunch of racketeers and just out for your dollar. He said, "Why don't you tell those guys out there to go out and get theirselves (sic) a job instead of stopping you fellows and handing bills- pamphlets on the way in to the job?" He said, "We have got a war to win," he says. "You ain't got no time to fool with those fellows out there." Harahuc also testified that several weeks after he was rehired he was called to Forman's office and that the following took place. He (Forman) told me, he says, "I thought you were working with us, and" he says, "here you are against us." I said, "Who told you that?" He said, "Earl Hahn."" I said, "Bring Earl Hahn up here and let him prove it, face to face." He said, "We will forget about that." He said, "You just want to stay clean of them guys. They are nothing but a bunch of rack- eteers." At the time, they were passing these'leaflets out and Jimmy Griffin was out there and a couple of other guys and he said, "See them guys out there," he says, "they are just out there for your dollar ; a bunch of rack- eteers." He said, "You ought to go out and tell them to go out and earn their living instead of getting your dollar." He said, "What they want to do is get in here and get your dollar and then they will say : to hell with you." Regarding Harahuc, Forman testified that he knew him and his family quite well ; that he spoke to Harahuc several times in the plant, both before and after Harahuc entered the Navy ; that on several occasions, after his discharge from the 20 At that time Rahn was Harahuc 's foreman. THE GENERAL FIREPROOFING COMPANY 391 Navy, Harahuc asked him about being transferred to another department and he told him that he had no authority to transfer an employee from one depart- ment to another but Harahuc should discuss that matter with his foreman ; that on the last occasion that he spoke to Harahuc about being transferred, Harahuc suggested to him that if he were. transferred to another department Harahuc would give ^him"t the names of the'epersonsAhy Harahuc's department. who; had joined the Union ; that Harahuc stated that he needed some money in order to buy drinks for the members of the Union so as to ascertain the names of all the union members; and that he declined Harahuc's offer saying, "Paul, that's out * * * I am not interested in the men in your department who are signing up for the CIO." The undersigned finds that Harahuc's versions of what transpired during the three above-related conversations with Forman to be substantially in accord with the facts. It will be recalled that sometime in the fall of 1943, Ram called Harahuc to the employment office and asked him what progress the Union was making with re9pect to signing up the female employees in his department. Moreover, Earl Hahn, the foreman in. the department in which Harahuc worked, was called as a respondent's witness and on direct examinaton testified that several times Harahuc told him "I signed up so many more * * * I tore their applications up. They, won't know nothing about it." ,James Johns, an inspector at the.;plant; and; president of the local union,,testi- fied that in May or June, the foreman of the inspection department, William Kelso, called him into his private office and asked him what "he had ever done to cause" Johns "to go on the outside for assistance" and when he did not reply, Kelso proceeded to tell him that he was not in favor of labor organizations like the CIO, but was favorably inclined toward organizations such as the Typogra- phers Union. Kelso admitted that during that conversation he asked Johns "why he would have to go to the outside for help." The undersigned finds that Johns' version of what transpired when Kelso called him into his office to be substan- tially in accord with the facts. Wetherill testified, and the undersigned finds, that around June, John Sentz, the foreman of his department, called him into his private office and said to him that he understood that Wetherill was an organizer for the CIO and if Wetherill continued his activities on behalf of the Union in the plant, he would be-dis- charged2' When Wetherill denied he was a union organizer he was permitted to return to his job. There is no credible evidence in the record, that Wetherill carried on any union activity in the plant. Moreover, the record shows that there is no, published rule,. prohibiting-solicitation-either -on -company, property, or, on company time. Credible evidence also reveals that many other employees were falsely accused of soliciting for the Union on company time. For example, Barbara Huzicka was called into the private office of Roy Mills, department super-' visor, in January 1944, and there accused by Mills of soliciting for the Union in the ladies' restroom on company time. When Huzicka denied the accusation, Mills, according to his own testimony, said, "if the charges we have made against you are false, forget about it, but I do want you to understand that the Company is for no soliciting in the restroom." The respondent's antipathy toward the Union is further established by anti- union statements and activities of its foremen and leadmen " Thus, Matijasac, 21 Sentz testified that he never spoke toWetherill about unions The. undersigned does not credit`Seritz's testimony-in 'thisirespect,'in-view ofthelestablished•anti-union conduct of Sentz's superiors. "The respondent disputes the supervisory status of its leadmen . According to credible evidence, a leadman does no manual work but exercises control and supervision over 10 to 20 persons, depending 'upon the department. Some leadmen, however, have but 3 or 4 persons in their group. A leadman's main duties are to instruct new employees , to assign 392 ' DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD a shop steward, testified that sometime in the latter part of May he spoke to As- sistant Foreman Schlosser about a grievance and that during the conversation, Schlosser asked the following questions: "Did the Union ever do anything for you? Did the Union ever buy your meals, your clothes,-pay your rent or,ybitr gas bill or pay your electric bill or anything else?" and when Matijasac replied in the negative, Schlosser then asked, "What do you benefit by being in the Union? Did anybody ever benefit anything by a union?" Matijasac also testified that shortly before the above conversation took place, Leadman Warren told him "the Union will never get in here . . . The General Fireproofing Company will close up their doors before they will sign a union contract and, . . . if you think you can go ahead and get all these members to sign up and get a contract signed . . . you are mistaken, . .' . it will never get you anywhere . . . The Union has never done anything for you and never will . . . I don't see why you are trying to sign up members . . . in time to come . . . we will get something on you and get `rid of you " Warren did not testify. Schlosser denied that he asked Matijasac the above quoted questions. The undersigned credits Matijasac's testimony and finds that Schlosser asked the above-quoted questions and. that Warren made the statements attributed to him by Matijasac. Joseph Trampush testified, without contradiction and the undersigned finds, that sometime in the fall of 1943 Ed Bollen, his leadman, posted on one of the department walls a cartoon derogatory to unions, that Bollen came over to where he was working and said, "Joe, I have got something good, here. I think it is right down your alley. I want to show you something," that he accompanied Bollen to where the cartoon was posted, that when they got to the cartoon the whole department was there and "ribbed" him about the cartoon, and that-Bollen removed the cartoon after he threatened to report Bollen to Walter Bender, the vice president in charge of operations. Trampush also testified that a copy of the same cartoon was posted in the employment office, but was torn down by a member of the Union. ' There is other evidence of similar character in the record, some of which is undenied and some of which is controverted, concerning efforts by the respond- ent's supervisors to intimidate and coerce the employees in the rights guaranteed by the Act. It would serve no useful purpose here to detail these other acts and statements or to resolve the conflicts regarding those which were denied by the respondent's witnesses, since they are only cumulative and in no event serve to 'alter or enlarge the ultimate findings herein. ' .the persons under him to various jobs, to see that the work is done proficiently and 'speedily, to read and interpret blueprints , and generally to supervise the work of his group. His duties also include reporting to the foremen or to the head of the department re- garding the performance of his group and the individuals therein. He has the authority, which he often uses , to recommend wage increases for his men and also has authority to recommend the discharge of any person in his group . A leadman is admittedly the "head man" of his group and is referred to by the persons in the group as "boss " The under- signed finds that leadmen have power to effectively recommend changes in the status of production employees working under them, that they exercise such power, and that the production employees have just cause to believe that leadmen are representatives of man- agement. The undersigned further finds that leadmen are supervisory employees and representatives of management and that the respondent is responsible for their anti-union activities . See International Association of Machinists v. N. L R B, 311 U. S . 72. Even if the activities of the leadmen were not attributable to the respondent by reason of their supervisory status, the record is clear that they were carrying out the respondent's an- nounced anti-union policy. - THE GENERAL FIREPROOFING -COMPANY ' 2. Concluding findings as to interference, restraint and coercion 393 In its answer the respondent averred, and at the hearing contended, that the agreement reached by the respondent and the Union in September 1943, which received the approval or acquiescence of the Regional-Director for the Eighth Region, settled all charges then pending against the respondent and that, there- fore, the Board may not properly consider any unfair labor practices alleged to have been engaged in by the respondent prior to the date of the said agreement. Under the circumstances of this case, however, the undersigned cannot concur in the respondent's contention that the Board is foreclosed from considering any unfair labor practices alleged to have been engaged in by the respondent prior to the settlement, and finds that the settlement agreement is not a bar to con- sideration of the events preceding the date of the said settlement agreement. It is plain that any understanding reached was not understood by the parties to be a bar to any determination by the Board if the respondent immediately thereafter 'resumed its unfair labor practices The record is clear, as found above, that the 'respondent, before-and after September 1943, hud-engaged;in unfair labor prac- tices. It is the Board's "established practice not to give effect to a settlement or compromise of unfair labor practices where an employer violated it or con- tinues a course of unfair labor practices " At the hearing, the* respondent's counsel argued that if the derogatory state- ments which the Board's witnesses attributed to the respondent's supervisory employees were in fact made, the Board should not find them to be violative of the 'Act because the statements were privileged under the doctrine of the right of free speech. The statements of Foreman, Morgan, Ram and the others, as found above, were but part and parcel of the respondent's scheme to defeat the Union's efforts to organize the employees. For example, Forman's calling the union organizers racketeers in the presence of employees cannot be considered separately, as suggested by respondent's counsel. That remark cannot properly be- considered as an isolated instance of an employer's expression of opinion; it is one of the congeries of facts which must be considered in the light of the entire record. So viewed, only one conclusion can reasonably be reached and that is, that the statements and activities of Forman, Morgan, Itain and of the other supervisory employees constituted an integral and inseparable part of a continuous course of conduct designed to forestall the organizational activities of the Union. Moreover, the constitutional guarantee of free speech does not confer upon an employer the privilege of expression of opinion winch amounts to pressure exerted vocally where the employer's whole course of conduct as here, evidenced in part by oral statements, constitutes interference, restraint, and coercion' The respondent's alleged neutrality regarding unions and its desire to have its employees free to organize without discrimination, coercion, or intimidation is not supported by the record. The disparaging statements of the respondent's supervisory employees about the Union, its members and its leaders and the numerous anti-union activities and statements, as shown by the record, clearly reveal the respondent's antipathy for the Union and its determination to keep the Union from organizing its employees. The undersigned finds that, by the acts described above, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. 23 Matter of American Cyanamid Co., etc., 47 N. L R. B 578, and cases cited in footnote 11 therein. 24 See-N L R. B- v. fVtirginia Electric & Power Co., 314 U. S 469; Matter of Van Raalte Company, Inc, 55 N. L R. B. 146. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The discriminatory discharges and refusal to employ 1. The issues The complaint alleged that the respondent discharged, on certain stated dates, Michael-Markovich , Marjorie Trafzer, and James Curotla because they, and each of them, had' joined and' assisted "the Union and bad engaged in concerted ac- tivities with other employees' of the respondent for the purposes of collective bargaining and other mutual aid and protection , and that on or about October 26, 1943, it refused, and still refuses, to employ James P. Quinn because he joined and assisted the Union . The respondent's answer denied these allegations. 2. The discharge of Markovich Michael Markovich , 50 years of age, with many years ' experience as a steel worker and tool "dresser", was hired by the respondent on January 1, 1943. Like' all other employees inexperienced in this aircraft factory, Markovich was sent to school for a week, where he learned how to drill and to countersink ., His start- ing pay was 78 cents per hour. After finishing training school he was assigned to work in the department where parts were made and assembled for plane cabins. At the time Markovich was-assigned to this department, thisnparticular cabin job was just starting -, no quotas for workmen hadobeen set up . Certain "bows", used to form an arch or support for the cabin structure , came into this department, as one leadman described it, in "misformed and disformed " condi- tion and it was necessary for Markovich and others to reform , by filing and saw- ing, these parts to conform to the shape of proper "jigs." It was also necessary for Markovich to drill holes in these parts, with a power -driven hand drill, as well as to countersink the holes. In this department Markovich worked under assistant foreman John Rasor and leadmen Furdas and Bentley. During the 3-month period of his employ- ment he worked with two different 'employees, Dutka and Howell, as "team- mates." Dutka finished his trade school training about a week ahead of Marko- vich. After the latter finished his training he worked with Dutka for about 3 weeks. Howell started to work for the respondent about 2 weeks after Marko- vich, went to the trade school, and- then was assigned to the latter's department. Within a few days after Howell came to this department he was assigned to work with Markovich , and as a "team" the two made "bows" and did various jobs in the department until shortly before the latter's discharge , on March 20. All three employees,were started at the same pay-78 -cents an hour. Markovich was - given two 5 cent increases before his discharge,-one in February and one in March. Dutka, however, who had been employed about a week before Marko- vich, did not receive any increase for 3Y months, and then of 5 cents an hour. Howell did not receive his first increase until 60 days after his employment, and at the end of 90 days was raised to 85 cents,-still less than Markovich was receiving at the time of his discharge after employment of less than 90 days. When Markovich was employed , like other employees , he was asked in the employment office whether or not he belonged to a union. He replied in the negative. Sometime in February he joined the Union; He attended meetings. On March 8 he brought to the plant ,copies of a Union pamphlet; and while the em- ployees were eating their lunch in the plant he openly distributed the pamphlets. On the -following -day, during,,,the-'same, lunch period, he distributed -Union ap- plication cards to employees. While doing so, Assistant Foreman Rasor came into the room and stood watching Markovich , across the table, as the tatter tossed the cards before the employees and told them to sign them if they wanted to and return them to him after working hours or turn them in at the Union's head- THE GENERAL FIREPROOFING COMPANY ' 395 quarters . During the afternoon of the same day, Rasor followed Markovich into the toilet, and found him and two or three •other employees smoking. He reprimanded Markovich , told him that twice that day he had broken a company rule, told him to get "the hell" back on the job or quit . Thereafter, until March 20, either Furdas or Bentley followed Markovich to the toilet whenever he went there. Also, on March 10, the day after Markovich was seen by Rasor distribut- ing Union cards, Bentley assigned him to another job, working on a riveting machine. On March 20 Rasor told Markovich "no more job," gave him a pass to get out of the gate, and told him to take his tool box with him. A woman employee, who had been hired a few days prior to Markovich's discharge , was transferred to Markovich 's job at'the riveting'machine . Within a few days Markovich ob- tained employment at another plant. In September , in accordance with the agreement between the Union and the respondent , Forman called Markovich by telephone and asked him to return to work. Markovich declined when Foreman told him they would not give him the back pay due him. Rasor testified that Markovich was "laid off" because : We had reached a point where we had an efficiency setup in the department and we had more men than our efficiency called for and there was a matter of time, there. There was around twenty-five men total that had to be placed and returned to the employment office to provide them with work; to be replaced otherwise. Rasor was not asked to explain or clarify the foregoing statement. Rasor also testified that Markovich was a poor workman, but did not testify that he was discharged for this reason. Leadmen Furdas and Bentley , and employees Dutka and Howell all testified at great length concerning the poor work turned out by Markovich during his employment. None of their testimony is supported by company records, although leadmen turn in daily slips to the assistant foreman covering the work performed by employees . * Bentley testified that he complained to Markovich of the quality of his work at least once each day during the 3 months of his employment, that while Markovich was on the assembly job he complained "several times a day," and that while on another job he had to watch Markovich "continually," other- wise Markovich would spoil the material which he was using . Bentley further stated, without support of company records, that on one occasion he had had to scrap an entire week's work performed by Markovich . Furdas likewise be- littled the quality of Markovich 's work, stating that 7 out of 10 pieces of work turned out by the employee had to be repaired. Both Dutka and Howell testified that Markovich was a poor workman and unable to learn to drill holes properly. However, Howell, who worked with Markovich as team mate for most of the period, admitted that he himself, was often criticized for mistakes , and pointed out that they were engaged in new production. Although the respondent offered much evidence in an effort to show the em- ployees' poor workmanship , only by implication does the record indicate that the respondent contends that he was laid off for this reason. Rasor's confused testimony, quoted above, mentions nothing of poor workmanship as the reason for the •lay°off. It is reasonable to believe that, ' if poor workmanship had been the reason for the discharge , the assistant foreman would have cited it in the above answer, which was in response to the direct question propounded by the respondent's counsel as to why Markovich was discharged. As to the issue of workmanship , the Trial Examiner can place no reliance upon the gratuitous defamatory testimony of Dutka and Howell. Like Marko- 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vich, both were new employees. Markovich received two raises, while Dutka received none and Howell only one, during the same period. According to lead- man Furdas' testimony, it was his responsibility to recommend raises, and recommendations were made for employees whom the respondent wanted to "hang on to." In the absence of other explanation, it is reasonable to believe 'that Markovich, since he received two merit increases wliile Dutka and Howell did not, was at least as good a workman as they, if not better They, moreover, were retained on their jobs while Markovich was discharged. Nor is the testi- mony of Bentley and Furdas entitled to any greater credence. Furdas denied that Markovich received any increases while employed by the respondent. This testimony is flatly refuted by documentary evidence. If Markovich's work was as bad as both leadmen described it, it is reasonable to inquire why the em- ployee was given two merit increases, while his team-mates did not receive them. Furthermore, there is no testimony, of the supervisors, involved, that either of the leadmen ever complained to the assistant foreman about the quality of Markovich's work. The Trial Examiner is convinced and finds, that the employee's poor work record as implied by the respondent, was not in any way responsible for his discharge. As to the apparent reason for the lay-off, as contained in Rasor's confused testimony, it is reasonable to believe that, if Markovich were one of 25 employees in that department laid off the same day, the respondent would have produced records to support the foreman's assertion. No such records were produced, and the Trial Examiner can place no reliance upon Rasor's unsupported testimony. Rasor was not questioned about seeing Markovich distribute Union cards. The employee's testimony is undisputed on this point. The assistant foreman admit- ted reprimanding Markovich the same afternoon for smoking in the toilet, although he stated that he included other employees in his reprimand. The employee's testimony is undisputed that from that date until his discharge he was under constant surveillance of the two leadmen while at work, although they denied having followed him to the toilet. Under all the circumstances, including the respondent's open hostility toward the Union and the discriminatory discharge of two other active Union members shortly thereafter, the Trial Examiner is convinced, and finds, that the real reason for its discharge of,Markovich was his activity on behalf of the Union. 3 The discharge of Trafzer Marjorie Trafzer was first employed by the respondent on or about February 10, 1943, and was discharged on May 4, 1943.5 She joined the Union in the latter part of March or early in April. Thereafter, she "talked about" unions to some of the female employees coming to and from work On or about April 27, Morgan followed Trafzer into the employees' canteen, where the latter had gone for a cup of coffee before starting on her shift There Morgan asked her if she had not stopped, before entering the plant, to talk to a "CIO guy", and when Trafzer admitted talking to a representative of the Union who was handing out leaflets, Morgan asked her if she belonged to the Union. When she admitted being a member, he asked her for her clock number and her foreman' s name. Trafzer complied with Morgan's request. While at work on April 30, Trafzer became ill and remained away from the plant on May 1 and 3.25 Trafzer testified that she asked a neighbor of hers to 25 At the hearing, Trafzer maintained that she was discharged on April 30 She wag mistaken in this respect The last day she worked at the plant was April 30. _ 26 Sunday intervened . The plant does not operate on Sunday. THE GENERAL FIREPROOFING COMPANY 397 telephone the plant and inform her department that she was ill and would return to work as soon as she was well again This testimony is corroborated by the neighbor,.Alice Stoyer, who testified, without contradiction, that she telephoned the respondent's plant on May 1, and informed the respondent that Trafzer was ill and would not return to work for a few days.27 On May 4, as Trafzer was about to leave her home for work, a messenger from the plant came to her home and handed her a copy of the separation notice which stated that Trafzer was no longer an employee because she had "left [the respondent's] employ, failed to report." At the hearing, the respondent maintained that Trafzer was discharged because she absented herself from the plant on May 1, 3, and 4 without permission and without notification, although warned that if she remained away from the plant without permission or without notification she would be discharged. The rec- ord shows that on March 26, Trafzer remained away from the plant without notification, and was absent with permission on March 27 and on April 10. Trafzer's foreman, Roy Hahn, testified that prior to April 30, he warned Trafzer that she would be discharged if she did not either secure permission to remain away from the plant or if she did not notify the respondent of her intention of remaining away from work. The undersigned does not believe that Hahn ever warned Trafzer that her job would be in jeopardy if she remained away without first securing permis- sion' or without notification. Hahn testified that Trafzer had absented herself from the plant on three separate occasions prior to April 30 and on that day he sent a record to the employment office that he was discharging her for laying off too many times without notification. This testimony is refuted by the docu- mentary evidence introduced by the respondent. This documentary evidence shows that during Trafzer's tenure of employment and prior to April 30, she was absent once without permission or without notification. It was admitted by Hahn that the respondent has no specific policy regarding absences from work and that Trafzer was the only employee lie ever discharged for that cause.28 The record clearly shows that other employees absented themselves from work without permission and without notification and that no disciplinary action was taken against them.2D Under the circumstances of this case, and from the record as a whole, the undersigned is convinced, and finds, that Trafzer's union membership and her activities on behalf of the Union, was the motivating reason for her discharge. It is significant to note that Trafzer was the only employee, accoiding to the record, to whose house the respondent sent a special messenger to inform her that she was no longer an employee of that concern Why this messenger was sent to Trafzer's home was not explained by the respondent. Trafzer accepted reinstatement in September pursuant to the above described agreement between the Union and the respondent. 21 Trafzer testified that she asked Stoyer to telephone on May 1. In an affidavit that she swore to on May 12 , 1943 , Trafzer stated that it was not until May 3, that she asked Stoyer to telephone the respondent. In the instant proceeding, it is not necessary to make a finding as to whether the telephone call was made on May 1 or May 3, because the record shows, and the respondent' s supervisors admitted at the healing, that if an employee- notifies the respondent that he or she is going to remain away from work , that employee is complying with the respondent's rules. The point is that the respondent did not dispute the fact that Stoyer notified it of Trafzer 's illness 28 It will be recalled that Hahn admitted that Harahuc told him on at least 3'occasions that he had signed up some employees in his, Hahn's, department , and that Harahuc added, "I tore their applications up. They won't know anything about it." 29 James Curotla, whose discharge is discussed immediately below, was discharged allegedly for failure to notify the respondent of his intended absence fiom work. 398 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The discharge of Curotla James Curotla was first employed by the respondent on February 13, 1943, at a salary of 78 cents per hour. In his interview with Morgan he admitted that he was a member of the A. F. of L. truck-drivers' union. Morgan assigned him to the polishing department, sayinglthat the respondent did not want any union in the plant. Curotla joined the Union on May 17, and became an active solicitor for memberships, passing out application' cards while at lunch in the plant 3° On June 11, Curotla's foreman, Murray Bromley, told him that he was discharged because he had remained away from the plant without permission and without notification 31 In support of its contention that Curotla was not discharged because Of union membership and activities but was discharged because he remained away from the plant on too many occasions without first securing permission and without notification, the respondent introduced evidence showing that between April 6 and June 10, Curotla was absent from the plant 7 days without permis- sion and without notification and during the same period had been granted permission to remain away from work on 7 different days. Bromley testified that several times prior to June 10, the last day that Curotla remained away- from the plant without permission or notification, Curotla had been warned by the assistant foreman that such action on Curotla's part would lead to his immediate discharge. Although the assistant foreman, Arthur Schlosser, testi- fied as, a respondent's witness, he did not state that he ever warned Curotla about his absence from the plant. Bromley, himself, admitted, in effect, that he did not warn Curotla. There is, therefor, no direct or credible evidence that Curotla was ever warned. The undersigned is of the opinion, and finds, that Curotla's absence from the plant without permission or notification was not the cause of his discharge and that Curotla was discharged for the reasons alleged in the complaint. This finding is buttressed by the following events that 'took place subsequent to Curotla's discharge : On June 26, Morgan and Clarence Ramsey, the respondent's chief electrician, went to Curotla's home for the purpose of inducing Curotla to return to work. Curotla was not at home. Morgan and Ramsey, however, met Curotla in a tavern near Curotla's home. There Morgan asked Curotla to return to work. Curotla demurred, pointing out that while the respondent claimed that he was discharged for not reporting off, he knew that was not the real reason. Morgan agreed that Curotla was right but promised that if Curotla would come back to the plant on the following Monday, and "let the union go," he would be reinstated to his former job.32 Morgan then asked Curotla "Ain't you ashamed of your trying to or- ganize a union like that one with the poor boys over there fighting and slaving for you." To this question, Curotla asked Morgan what he meant and Morgan replied, "The Union never got anything but strikes and never benefited any- body. Never helped them out. They don't give you any money for lay-off or nothing. What do you want to belong to an organization like that for? You are one of the 2,000 guys I hired that I thought wouldn't do a thing like that." Before Morgan left the tavern, Curotla agreed to return the following Monday. 80 Curotla's assistant foreman, Arthur Schlosser, also ate his lunch at the same place with 'Cnrotlaaamd his co-workers. 31 At the time of his discharge, Curotla was earning $1 04 per hour. 32 It will be recalled that on June 16 , the Board had notified the respondent that the Union had flied a charge alleging, among other things, that Curotla was discharged in violation of the Act THE GENERAL FIREPROOFING COMPANY 399 When he arrived at the plant that day, Morgan told Curotla that he could do nothing for him 33 When Curotla returned to the plant in September, pursuant to the agree- ment for his reinstatement, he was taken into Forman's private office by Morgan. According to Curotla's undisputed credible testimony the following took place in Morgan's presence : We started talking and he [Forman] told me if I wanted to work back there again and said, to me, if I did, and I said, "Sure," and we started talking about the Union a little bit and he says it was an awful long time and if I would come back there and work and behave and don't get organizing with the Union any more, he says, "You will -be all right." He said, "You can make yourself a home here." He says, "We always paid you, didn't we?" I said, "Sure you paid me all right." He says, "The first move I catch you trying to organize, or anything like that, you will be through wbth this Company. You will never get back in.,, 5. The refusal to employ Quinn James P. Quinn, applied for a job at the respondent's plant on October 26, 1943. He was interviewed by Morgan who first asked if the name on the application was right. He inquired if Quinn belonged to any labor organiza- tion. Quinn replied that at one time he was a member of the Union. Morgan asked if he belonged at the time, and Quinn replied that he did not, having been in the Navy and just released. Morgan then asked him what sort of a job he wanted. Quinn said that he wanted a job in the production line. Mor- gan agreed to try to get him one, stating that he would like to get a Navy veteran in. Morgan asked what kind of work he preferred, and Quinn re- plied,-"riveting" Morgan then said that he did not want to see a nice young fellow like him getting mixed up with the Union because they were racket- eers, fascists, communists and warmongers. Morgafi declared that the Union did not want to promote peace between management and labor, but sought to promote strife, and were always creating trouble at the respondent's plant. Quinn said nothing in answer. Suddenly Morgan asked Quinn if he was the son of assistant fire chief Quinn When the young man replied " no", Morgan asked if his father was connected with the CIO In that town. Quinn ad- mitted that his father was the district director of the Union. Morgan promptly apologized for what he had said, declaring that the views he had expressed were not his own, but those of the Company: He said he had to do what he was told, because if he did not, he would be fired. Morgan finally said that he would see Forman, the personnel manager and call him later. At some point during the interview, the record does not disclose accurately, Morgan of- fered Quinn a clerical job, which Quinn said he did not want. A few days later, the record does not reveal the exact date, Quinn again went to the respondent's office, upon a telephone call from Morgan. On this 33 The above finding is based on the credible testimony of Curotla. Morgan admitted his visit to Curotla, their meeting in the tavern, and his request that Curotia return to work. He denied, however, that he spoke to Curotla about the Union or made the derogatory statements about the Union which Curotla attributed to him. Ramsey tentified that while Morgan aiicl Curotia were conversing in the tavern , he sat on a stool next to the one on which Morgan was sitting and that he heard "no mention whatsoever of the Union." Curotla's version , however, was fully corroborated by a farmer who was present The undersigned finds that Curotla was a truthful witness and accepts his testimony regarding his conversation with Morgan as being substantially accurate. 618683-45-vol. 59-27 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occasion he was interviewed by both Morgan and Forman. During the inter- view Forman offered him a job as a tool and die maker apprentice, working from 6 o'clock at night until 6 o'clock in the morning, 7 days a week. Forman told him his starting pay would be 78 cents an hour, with no increase until after the 7th or 8th month. After some discussion about the offer, Quinn told them he did not want to learn this trade. His decision was based on the fact that he wanted his evenings free and because raises were more frequent in the production line. The record establishes the latter point to be correct. Quinn left this conference with the understanding that they would call him up later and let him know about a job on the production line. About a week later, having received no call, Quinn telephoned to Morgan, who said that they had not yet found a place to put him. Quinn called again, about November 23, and was told by Morgan to forget about getting a job at the respondent's plant. Forman admitted that he instructed Morgan to tell Quinn to forget about applying further, since they had offered him the best jobs in the plant. The respondent makes no claim that Quinn was unfitted for work in the production department. It was stipulated that from November 1943, to February 1944, the respondent hired about 330 new employees in the production department. The respondent contends in effect, that it was privileged to refuse Quinn employment in the production department because he declined to accept two other offers which the employment manager considered to be better jobs Even in the absence of all other factors, it is questionable whether either the clerical job or the apprentice job was actually considered by Forman to be a better job Certainly the long hours and low pay offered on the apprentice job were less attractive, on the surface, than those of production jobs described by other new employees. Whether a reasonable mind would consider them better jobs than the type sought by Quinn, however, is immaterial if some other motive caused Morgan and Forman to offer them. The record amply supports a finding that neither of the rejected offers was made until after two significant events : (1) Morgan's agreement that he could probably place him in the production department, and (2) Morgan's discovery that Quinn was the son of a leading official of the very labor organization which the respondent was striving to keep out of the plant. In view of the respondent's anti-Union hostility, including the discriminatory discharges described above, the Trial Examiner is convinced and finds that Quinn was actually offered both the clerical job and the apprentice job to keep him out of the production department then being organized by the Union Hof which his father was an official.34 It having been found that the offers made by the respondent were discrim- inatory,and for the purpose of keeping the son of a union official out of the production department, it follows that the reason advanced by Forman 'for his ultimate refusal to hire Quinn in- the production department was likewise dis- criminatory. The respondent makes no claim that Quinn was unfitted for any reason for work in the production department. Nor is there anything in the record to indicate that Quinn was any less desirable than any of the 330 other new employees hired within a few months thereafter,-except that he-was the 34 In . audition to the compelling nature of the surrounding circumstances , this finding, has further support, in the following question put to Quinn by counsel for the iesponden't "Did your father, Mr Quinn, the Director, or Mr Griffin, the Staff representative, or any other representative connected with the United Steelworkers of America, CIO, send you to the General Fireproofing Company to file an application for employment9" Also, in his argument before the Trial Examiner , the same counsel stated :, "I still think, as a part of this campaign to organize the Company , that be was sent out these hoping to get something on the Respondent but he never was an employee of ours." THE GENERAL FIREPROOFING COMPANY 401 son of a union official, and a member of the Union. It is evident that the respondent was in pressing need for production employees, since within the next few weeks it employed hundreds of such workers. The undersigned concludes and finds that James P. Quinn was refused em- ployment on and after October 26, 1943, because he was a member of the Union and a son of the district director of the Union. The record shows that on November 26, 1943, Quinn was referred by the United States Employment service, to the, McKenzie Muffler Company located in Youngstown. Quinn did not apply for the job. On March 10, 1944, he enrolled as a student at -the Ohio State University. 6. Conclusions as to the discharges and the refusal to employ The Trial Examiner concludes and finds that the respondent, by discharging Markovich, Trafzer, and Curotla and by refusing to employ Quinn, has discrim- inated in regard to their 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. 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 operation of the respondent , described in Section I above, have a close, intimate; and substantial relation to trade, traffic„ and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action which the undersigned finds will effectuate the policies of the Act. The undersigned has found that the respondent discriminatorily, discharged Michael Markovich, Marjorie Trafzer, and James Curotla. Since it has been found that the respondent on September 7, 1943, offered these employees rein- statement and that the offer was accepted by Curotla and Trafzer but refused by Markovich on the ground that the respondent refused to pay him the amount of money due him for back wages the undersigned will recommend that the respond- ent offer to Markovich immediate and full reinstatement to his former or sub- stantially equivalent position without prejudice to his seniority or other rights and privileges. The undersigned will also recommend that the respondent make whole Marjore Trafzer and James Curotla for any loss of pay which they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount which he or she normally would have earned as wages from the date of discrimination to September 7, 1943, less his or her net earnings 3u during said period. The, under- u By , "net earnings" is meant earnings less expenses , such as for 'transportation, room, and', board , 'incurred by and employee in connection with obtaining work . and working elsewhere than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Saaomill Workers Union, Local 2590, 8 N. L. R B 440 Monies received for work performed upon Federal , State, county, municipal or other work -relief projects shall be considered as earnings See Republic Steel Corporation v. N. L R B., 311 U.- S. 7. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed further recommends that the respondent make whole Michael Markovich 'for any loss of pay he may have suffered by reason of the respondent's' discrim- ination agahisthim, 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 the discrim- ination against him to September 7, 1943, and make him whole for any loss of pay he would normally have earned from the date when the respondent was, formally notified that the second amended charge herein had been filed to the date of the offer of reinstatement, less his net earnings, during said periods. It has'also been found that the respondent has discriminated as to the hire of James P. Quinn on and after October 26, 1943. It will therefore be recom- mended that the respondent offer James P. Quinn immediate employment in the production department of the-respondent's plant. Since it has been found that the United States Employment Service obtained the offer of a job for Quinn on November 26, 1943, and that Quinn rejected the offer, it will be recommended that the respondent make him whole for any loss of earnings he may have suffered from October 26, 1943, to November 26, 1943 only, less his net earnings during said period. Upon the basis of the foregoing findings of fact and upon the entire record 3n'the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. United Steelworkers of America, affiliated with the Congress of Industrial Organizations," is a labor organization, within the meaning of Section 2 (5) of the Act. 4 2. 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. 3. By discriminating in regard to the hire and tenure of employment or the terms and conditions of employment of Michael Markovich, Marjorie Trafzer, James Curotla, and James P. Quinn, and thereby discouraging membership in the United Steelworkers of America, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) 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 undersigned recommends that the respondent, The General Fireproofing Com- pany, -Youngstown, Ohio, its officers, agents, successors, and assigns shall : 1. Cease and desist from: (a) Discouraging membership in United Steelworkers of America or any other labor organization of its employees by discharging or refusing to rein- state any of its employees, or by refusing to hire a member of said labor organization, or in any other manner discriminating in regard to the hire or tenure' of employment or the terms or conditions of employment of any of its members ; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- THE GENERAL FIREPROOFING COMPANY 403 gaining or other mutual aid and protection , as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer Michael Markovich immediate and full reinstatement to his former or substantially .equivalent *position• without prejudice to his seniority or other rights and privileges, in the manner set forth above in the section entitled "The Remedy" and offer James P. Quinn immediate employment in the respondent's production department; (b) Make whole Michael Markovich, Marjorie Trafzer, James Curotla, and James P. Quinn for any loss they may have suffered because of the respondent's discriminatioh against them by payment to each of them of a sum of money equal to the amount which he or she would normally have earned as wages in the manner set forth above in the section entitled "The Remedy."; I . " (c) Post immediately in conspicuous places throughout the respondent's Youngstown, Ohio, plant and maintain for a period of at least sixty (60) con- secutive days from the date of posting notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is recommended 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 and that the respondent will not discriminate against any employee because of membership or activity in said organization; (d) Notify the Regional Director for the Eighth Region, in writing within ten (10) days from the receipt of this Intermediate Report of the steps it has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the receipt of this intermediate Report the respondent notify said Regional Director. in writing that it has complied 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 3, effective November 26, 18,43, any. party or counsel for the Board may within fifteen (15) days from the date of the,entry of the order transferring the case to the Board, pursuant to Section 32 of'Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding ( including rulings upon all motions or objections)- as he relies upon, together with the original and four copies of a brief in support thereof. Immediately .upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy' thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire per- mission 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. " - Dated, May 2, 1944. HOWARD MYERS, Trial Examiner.