Vail Manufacturing Co.

4 In the Matter of VAIL MANUFACTURING COMPANY and UNITED STEELWORKERS OF AMERICA, C. I. O. Case No. 13-C-2295.-Decided March 31, 1945 DECISION AND ORDER On October 9, 1944, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and that it had not engaged in certain other unfair labor practices, and recommending that it cease and desist from the unfair labor practices found, and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto, and that the complaint be dismissed as to the remaining allegations. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. No exceptions were filed by the Union. No request for oral argument before the Board at Washington, D. C., was made by any of the parties. The Board has considered the rulings of the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's brief and exceptions, and the entire record in the case, and hereby adopts the findings, conclusions; and recom- mendations of the Trial Examiner, with the exceptions and additions noted below : 1. We concur in the Trial Examiner's finding that on December 1, or 2, 1943, the respondent, through its president, Walter Vail, ques- tioned a group of older employees concerning their membership and interest in the Union and union organization. Our finding in this respect is based on Walter Vail's admission that he questioned them concerning the "spirit of unrest" in the plant, on the credible testimony of employee Terris that President Vail asked him if he belonged to the Union and on the credible testimony of employee Bloch that Vail asked him _ if he heard anything about a union trying to get into the shop.' ' Walter Vail denied having asked the questions attributed to him by employees Terris and Bloch In view of Walter Vail's admission hereinabove set forth and the fact that the Trial Examiner discredited Vail in other respects, we reject Vail's denials. 61 N. L. R B., No. 22. 181 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD • 2. The respondent contends that the Trial Examiner erred in finding that the anti-union petition of December 2, 1943, was inspired,, and its circulation assisted, by the respondent. We do not agree. That the respondent assisted in the circulation of the petition is apparent from the fact that department heads signed it and circulated it among the employees at the plant during working hours, and from the fact that President Vail knew of, and did not impede, the circulation of the petition. That the petition was inspired by the respondent is a reasonable inference from the fact that the respondent was admittedly opposed to outside unions and made this opposition known to some of its employees; that shortly before the circulation of the petition, President Vail called into his office a group of older employees, in- cluding Thorpe, head of the industrial staple department, and ques- tioned them concerning the "spirit of unrest" in the plant and their union affiliation; that the petition was originally drafted by Siss, one of the employees in the group called into Vail's office; and that the older employees and department heads assisted iii the circulation of the petition. 3. The Trial Examiner found that, the respondent's classification, for the purpose of a Board election, of Frank Mastik and Joseph Mastik as non-supervisory rather than supervisory employees, and its attempt to persuade them to consent to such classification, constituted, in the circumstances of this case, an unfair labor practice. We agree. Although the Mastiks did some production work, they were in charge of their respective department and effectively recommended employees for promotion or discharge. Accordingly, they would fall within the Board's customary definition of supervisors and be excluded from the unit of employees eligible to,vote. Expecting the Mastiks to vote against the Union, the respondent sought to qualify them for'such a vote by listing them as "operators." 2 This attempt to swell the anti- - union vote and to prevent the employees from making a genuine choice of a bargaining representative, constituted part of the respondent's, campaign to defeat the Union. We find that by such conduct the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 4. We concur in the Trial Examiner's finding that the respondent discharged the Mastiks for refusing to assist it in the commission of an unfair labor practice and thereby violated Section 8 (3) of the Act. The respondent takes exception to this finding on the ground that such a discharge does not discourage or encourage membership in a labor 2 The respondent contends that in classifying the 1llastiks as non-supervisory, it 'was, acting in good faith because of its belief that they (lid not fall within the definition of a supervisor under the Fair Labor Standards Act Assuming that the respondent was acting in good faith in this respect, it assumed the risk of its determination being erroneous Matter of American Needlecraft, Inc., 57 N. L. R. B. 1569. VAIL MANUFACTURING COMPANY 183 organization. We find no merit in 'the respondent's contention. It is a reasonable inference that, in a small plant such as the respondent's, where the employees are aware of the respondent's opposition to the - Union, the discharge of supervisory employees for refusing to aid the respondent in its campaign against the Union would come to the attention of the ordinary employees, would cause such employees rea- sonably to fear that the respondent would take similar action against those who favored the Union, as in fact it did, and would therefore discourage membership in the Union. Moreover, the discharge of the Mastiks would similarly interfere with, restrain, and coerce the employees in the exercise of the rights guaranteed in Section 7 of the Act, and hence in addition constituted an independent violation of Section 8 (1). Whether the discharges be viewed as violations of Section 8 (1) or of Section 8 (3) of the Act, we find that it is necessary to order reinstatement with back pay in order to effectuate the policies of the Act. 5. The respondent contends that the discharges of November 29, December 1, 2, and 3, 1943, were motivated by economic necessity and not by the advent of the Union, as found by the Trial Examiner. In support of its contentions the respondent points particularly to the Trial Examiner's finding that the discharges of November 26, 1943, were made in the regular course of the respondent's operations, and to the impact of the War Production Board Limitation Order L-73 upon its business. We agree with the Trial Examiner. In view of the fact that the proportion of union to non-union employees discharged on November 26 was not excessive in comparison to the proportion of union to non-union employees in the plant,3 that the union employees in this group were not particularly active in the Union, and that it was not until after these discharges were effected that President Vail, who had returned from Florida on November 25, sought to ascertain the extent of "unrest" in the plant resulting from the Union's organi- zational efforts, it is reasonable to infer, and we find, that these dis- charges were determined upon and effected before President Vail became fully aware of the extent of employee interest and participa- tion in the Union. ;1n rejecting the respondent's contention we con- sider significant, among other facts set forth in the Intermediate Report, the fact that the respondent knew that it would get a new metal quota on January 1 and hoped that restrictions on the manufac- ture of its product would shortly be removed, as in fact it was; that, despite the War Production Board Limitation Order, the respondent made no reduction in personnel during the preceding 2 months al- though in certain departments there was not enough work to go 3 Only two of the six employees discharged were members of the Union and one of the non-union employees was immediately rehired. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD around; that admittedly there was a scarce labor market at that time; that simultaneous with the discharges in question, the respondent hired part-time workers; and that while it considered the release of employee Maahs an absolute business necessity, it nevertheless gave him a wage increase a week before his discharge .4 . Viewed as a whole the discharges fall into a pattern which points to discrimination. We are led to this conclusion by the following facts, among others set forth in the Intermediate Report : (1) the admission of Richard Vail that he was opposed to outside unions; (2) Walter Vail's anti-union statements and conduct, as set forth in the Intermediate Report, particularly his statement to Frank Mastik that the employees who did not sign the anti-union petition should be discharged; (3) the part played by the respondent in the origin and circulation of the anti-union petition; (4) no employee who signed the anti-union petition was discharged, while all those who refused to sign were discharged; (5) only union members, including the presi- dent, vice president and other office holders, were discharged on and after November 29, although only • a bare majority of the employees were members of the Union; (6) the varying dismissal standards used in the different departments which achieved the result of reaching only union members; (7) that the decision to retain one employee was revoked as soon as President Vail learned that the employee was to be vice president of the Union, while another employee was told in effect that he was mistakenly discharged because of the respondent's belief that he was active on behalf of the Union; (8) the timing of the discharges, e. g., some were dismissed within a few hours after refusing to sign the anti-union petition, some were dismissed before the end of a regular weekly pay day, others on the day following a regular weekly pay day, and still others in the middle of their shift; (9) the anti-union activities of Wisniewski, head of the staple packing department, as set forth in the Intermediate Report, who selected a large number of the employees for discharge, was aware of the union membership and activities of practically all those selected by her, and had told some of them to "lay-off" because they would not get any- where by joining the Union; (10) the reasons given for the selection of certain employees, e. g., three employees constituted a "clique" who had the "same idea," another employee was too "ambitious," and others were "dissatisfied"; (11) the fact that, despite an admitted labor shortage and an expected relaxation of production restrictions, the employees, many of whom were skilled, were discharged rather than laid off; and (12) that when production substantially increased the following February due to the anticipated removal of War Production 4 We do not rely on the Trial Examiner's observations, in footnote 17 of the Intermediate Report that the staple packing department was a more logical place to begin a reduction of force, VAIL MANUFACTURING COMPANY 185 Board restrictions, the respondent did not recall any of the dis- charged employees but hired new ones and advertised for-others. Upon the entire record we find, as did the Trial Examiner, that the discharges on November 29 of three union members (including the president of the Union, the two most active in forming the Union, and one who was among the first to join) were made in an effort to check the "spirit of unrest" which President Vail discovered, had increased at the plant, and that the discharges on December 1, 2, and 3, were motivated by the respondent's desire to defeat the Union. 6. The respondent contended that the Board should not order the reinstatement of employee Kosiara because she signed and cashed another employee's check. The record discloses that this incident took place several months prior to Kosiara's discharge and that the respond- ent had retained her because she made restitution. It is clear, and we find, that the respondent's selection of Kosiara for discharge and' the failure to recall her was in no way motivated by the incident relating to the check. While we do not condone Kosiara's conduct in this respect, we are of the opinion that, under the circumstances dis- closed here, the effectuation of the purposes and policies of the Act require her reinstatement with back pay. 7. Our back-pay order with respect to Joseph Mastik, who was inducted into the armed forces of the United States after he was dis- criminatorily discharged by the respondent, shall be taken to mean that the respondent shall pay immediately to Joseph Mastik that por- tion of the net back pay accumulated between the date of his discharge to the date of his induction into the armed forces without awaiting a final determination of the full amount of his award. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Vail Manufacturing Com- pany, Chicago, Illinois, 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 any other labor organization, by discharging or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action,, which the Board finds will effectuate the policies of the Act : (a) Offer the employees named in Appendix A immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole the employees named in Appendix A, with the exception of Joseph Mastik, for any loss of pay they may have suf- fered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period from the date of his discharge to the date of the respondent's offer of reinstate- ment, less his net earnings during said period; (c) Upon application,by Joseph Mastik within ninety (90) days after his discharge from the armed forces of the United States, offer him immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges; (d) Make whole Joseph Mastik for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he nor- mally would have earned as wages during the periods (1) between the date of his discharge by the respondent and the date of his induc- tion into the armed forces of the United States, less his net earnings during said period; and (2) between the date five (5) days after his timely application for reinstatement and the date of the respondent's offer of reinstatement, less his net earnings during said period; (e) Make whole the employees named in Appendix B for the loss of pay they may have suffered by reason of the respondent's discrimi- nation against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period from the date of his discharge to the date of his reemployment by the respondent, less his net earnings during said period ; (f) Post at its plant at Chicago, Illinois, copies of the notice, at- tached hereto, marked "Appendix C." Copies of said notice to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, VAIL MANUFACTURING COMPANY 187 including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (g) Notify the ' Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent discriminated against Frances Mutz and Mildred An- drzejak within the meaning of Section 8 (3) of the Act,,be, and it, hereby is, dismissed. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Order. APPENDIX A Leona Becker Walter Carlson Paul Galgan Carmella Girodano Richard Hirschman Emma Kosiara Louis Maahs Frank Mastik Christopher Monestere Helen Szmagalski Russell Wade Anthony Bombin Stuart Fairbanks America Giglio Axel Gustafson Angeline Just Edward Lusinski Dorothy Malozzi Joseph Mastik Mary Monestere Rose Vommaro APPENDIX B Josephine Anderson Reynold Leffring Rose Girodano Virginia Murphy APPENDIX C NOTICE TO ALL EMPLOYEES Pursuant to an Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their 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. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We will offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges' previously enjoyed, and make them whole for any loss of pay suf- fered as a result of the discrimination. Leona Becker Frank Mastik Axel Gustafson Walter Carlson Christopher Monestere Angeline Just Paul Galgan Helen Szmagalski Edward Lusinski Carmella Girodano Russell Wade Dorothy Malozzi Richard Hirschman Anthony Bombin Joseph Mastik Emma Kosiara Stuart Fairbanks. Mary Monestere Louis Maahs America Giglio Rose Vommaro We will make whole the employees named below for any loss of pay suffered as a result of the discrimination. Josephine Anderson Reynold Leffring Rose Girodano Virginia Murphy All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of mem- bership in or activity on behalf of-any such labor organization. VAIL MANUFACTURING COMPANY, Employer. By ---------------------------------- (Representative ) (Title) Dated -------------------- NOTE: Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Francis X. Helgesen, for the Board. Mr. John Harrington, of Fyffe A Clai ke, of Chicago, Ill., for, the respondent. Mr. George E . Mischeau and Mr Sam Taylor, of Chicago, Ill., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on May 11 , 1944, by United Steelworkers of America, C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board , by its Regional Director for the Thirteenth Region (Chicago, Illinois ), issued its complaint dated May 11, 1944, against Vail Manu- facturing Company, herein called the respondent , alleging that the respondent had VAIL MANUFACTURING COMPANY • 189 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. With respect to the unfair labor practices, the complaint as subsequently amended' alleged, in substance, that the respondent: (1) from on or about October 1, 1943, warned its employees not to affiliate with the Union, engaged in surveil- lance of its employees, and caused to be circulated a petition for the purpose of coercing its employees into abandoning their union affiliations; (2) on or about December 1, 1943, discharged Josephine Anderson, Mildred Andrzejak, Leona Becker, Anthony Bombin, Walter Carlson, Stuart Fairbanks, Paul Galgan, America Giglio, Carmella Girodano, Rose Girodano, Axel Gustafson, Richard Hirschman, Angeline Just, Emma Kosiara, Reynold Leffring, Edward Lusinski, Louis Maahs, Dorothy Malozzi, Christopher Monestere, Mary Monestere, Virginia Murphy, Frances Mutz, Helen Szmagalski, Rose Vommaro, and Russell Wade, because of their union membership and activity, and failed and refused to reinstate any of them with the exception of Josephine Anderson, Rose Girodano, Reynold Leffring, and Virginia Murphy, because they joined the Union and engaged in concerted activities with other employees; and (3) on or about December 6 discharged and thereafter failed and refused to reinstate two other employees, Frank Mastik and Joseph Mastik, for the reason that they refused to assist the respondent in the commission of unfair labor practices. On May 22, 1944, the respondent filed an answer, which was amended at the hearing, admitting certain of the allegations of the complaint, but denying that it had engaged in any unfair labor practices. Pursuant to notice, a hearing was held from May 22 to 26, 1944, at Chicago, Illinois, before the undersigned, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and participated in the hearing. The Union was represented by two organizers. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the close of the hearing the Trial Examiner reserved ruling upon a motion by counsel for the respondent to dismiss the complaint as a whole, and upon another motion to dismiss the allegation respecting Frank and Joseph lIastik. The motions are now denied. The parties were advised that they might argue orally before the Trial Examiner and might file briefs with the Trial Examiner within 14 days from the close of the hearing. Subsequently, the Trial Examiner extended the time within which briefs might be filed None of the parties argued orally. On June 19, both the Board and the respondent filed briefs Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a corporation having its principal office and place of business at Chicago, Illinois, where it is engaged in the manufacture and sale of coat hangers, paper clips, staples, and related products. The principal materials used by the respondent are steel-castings and wire forms. During the year 1943, the total value of the materials used by the respondent was in excess of $50,000, of 'During the course of the hearing counsel for the Board moved, without objection, to amend the complaint to include the names of three employees, not named in the complaint as originally drawn, and alleged to have beep discriminatively discharged. The Trial Examiner granted this motion. 639678-45-vo,j. 61-A4 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which more than 50 percent was purchased in States other than the State of Illinois and transported to the Chicago plant. During the same period, the value of the respondent's sales of finished products amounted to more than $100,000, of which more than 50, percent was shipped to purchasers outside the State of Illinois. The respondent admitted at the hearing that it was engaged in commerce within the meaning of the Act, and subject to the jurisdiction of the Board. II. THE ORGANIZATION INVOLVED United Steelworkers of America, affiliated with the Congress of Industrial Organizations, is a labor organization admitting employees of the respondent to membership. III. THE UNFAIR LABOR PRACTICES A. History of union organization In May 1943, at a tavern near the'plant, commonly referred to by employees as the' "Corner", a union organizer approached a group of the respondent's employees including Walter Carlson. and endeavored to interest them in union organization. This encounter, although it produced no organizational results, came to the attention of Walter Vail and Harry Vail, the respondent's president and vice- president and plant superintendent, respectively. On the following morning, according to the credible testimony of Richard Hirschman, subsequently discharged along with Carlson under circumstances hereinafter related, Harry Vail approached Hirschman and asked him what he knew about "what happened last'night-at the Corner" Hirschman told Vail that he had not been present at the "Corner", but that he understood there had been an "impromptu" meeting of little importance Later in the day, Hirschman was summoned to the office of Walter Vail. Walter Vail, according to Hirsch- man's testimony, opened' the conversation by stating that lie understood that some of the employees were dissatisfied with their working conditions, and asked Hirschman, if that was true. When Hirschman replied that he knew of no par- ticular dissatisfaction, Vail brought up the incident at the "Corner" the previous night, and asked him if Carlson and several other employees, whom he named, were interested in union organization. Hirschman assured Walter Vail, as he had Harry Vail, that the meeting in question was a chance meeting and that no organizing was under way Vail, according to Hirschman's account, con- cluded the conversation by telling Hirschman that he wanted to keep the respondent's labor relations on a "stable basis," and that rather than tolerate any other condition he would "close the doors " Harry Vail was not called as a witness,' and Hirschman's testimony as to his conversation with him stands uncontradicted in the record. Although Walter Vail denied on direct examination that he had had any such conversation with Hirschman as above related, on cross-examination lie stated simply that he did not recall it. The undersigned finds that on the occasions related, Walter and Harry Vail made substantially the statements attributed to them by Hirsch- man. Inasmuch as Walter Vail's statement, that the respondent would close the plant rather than tolerate any unstable conditions, was coupled with his questioning of Hirschman concerning union activity, it was tantamount to declar- ing that, the respondent would close the plant rather than submit to its unionization. Walter Vail testified that Harry ' Vail was at the plant during the hearing. VAIL MANUFACTURING COMPANY 191 During the latter part of October 1943, the first step was taken in organizing the respondent's plant when a group composed of Carlson, Hirschman, and another employee visited the Union's headquarters in Chicago and inquired concerning organization As a,result, the first organizational meeting was held at a private home on November 5, attended by between 12 and 14 of the respond- ent's employees. Memberships were obtained at this and succeeding meetings, and at a meeting on November 21 a formal organization was perfected and officers were elected. Hirschman was chosen president, and Carlson, outer guard. Other employees whose subsequent discharges are hereinafter considered were elected to other offices. On the following day, November 22, the Union wrote the respondent advising it that the Union represented a majority of its employees, and requesting a meeting on November 27, for the purpose of negotiating a contract. The respond- ent did not reply to this letter. , On November 29, the Union filed with the Board a petition for investigation and certification ' The petition was withdrawn on December 4, following the discharges complained of. B. Events immediately preceding the discharges; interference, restraint, and coercion President Vail testified that he became aware of "unrest" in the respondent's plant, "aggravated " by union organization , in November , shortly before he left ,for a vacation in Florida. While on vacation he was informed by telephone of the respondent's receipt of the Union's letter of November 22, and left almost immediately for Chicago where he arrived on Thanksgiving Day, November 25. He testified that upon his arrival at the plant lie found the spirit of "unrest" still further "aggravated". Frank Mastik,' in charge of the standard staple department, testified that shortly after President Vail's arrival he called Mastik to his office, where, in the presence of Harry Vail, he showed Mastik the Union's letter and stated that the respondent "did not need anything like that," and that the Union was "a bunch of racketeers". Walter Vail denied that he made any such statements to Mastik. The undersigned finds, however, that Vail made, in substance, the statements attributed to him Richard Vail testified that upon Walter Vail's return from Florida the two of them discussed the growth of union sentiment among the employees, and that Walter Vail suggested that some of the older employees should be called together and that an attempt be made to find out from them the reason for the desire of the employees for organization. Accordingly, on December 1 or 2, President Vail called to-his office Robert Thorpe , head of the industrial staple department, and four or five other employees of long standing, including Arthur Siss ° and 3 Vail Manufacturing Company and United Steelworkers of America, C 1 0 , Case No. 13-R-2196. ' Richard Vail , the respondent's secretary -treasurer, testified that the formal title of foreman was not conferred on any of the respondent 's supervisory employees, and referred to the various department heads, including Frank Mastik , as "working super- visors." It is not disputed that Mastik, who, like other department heads was paid on an hourly basis and did some production work , was the head of the standard staple department at the time of the activities herein complained of, and effectively recommended employees for promotion and discharge He was responsible directly to Walter and Harry Vail for the work of the department. 6 Walter Vail 's credibility as a witness on this point is adversely • affected by his testimony that Mastik's subsequent termination of emplo} nient was a resignation and not a discharge , as well as by his attempt to persuade Mastik and Mastik's brother, Joseph, both of them supervisory employees , to list themselves as non-supervisory em- ployees so that they might vote in a prospective Board election. 6 Siss was not called as a witness. ,192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD William Marsh, and asked them what was causing the "spirit of unrest" in the plant. On December 2, there was circulated throughout the plant the following petition : DECEMBER 2, 1943. To the Vail Manufacturing Company; War Labor Board or Whom It May Concern: We, the undersigned employees, of the Vail Manufacturing Company are satis- fied with management, treatment and working conditions and are opp9sed to union organization. ' The petition, the circulation of which was confined to the day of Decemler 2, was apparently originally drafted by Siss. It was redrafted in the respondent's office by a clerical employee, after which it was signed by all of the department heads and circulated by them and others, including Marsh and Siss, among the employees generally. After most of the employees had signed the petition it was presented to President Vail. Although Vail denied that he was aware of the manner of circulation, he admitted that he knew of its circulation prior to being presented with it! It is a reasonable inference, and the undersigned finds, that the petition was inspired by the respondent. Irrespective of its origin, however, the undersigned finds that 'the respondent aided and approved its circulation8 It is a noteworthy fact, reference to which is hereafter made-in connection with the discharges on December 2, that no employee who signed the petition was discharged. Frank Mastik, in the standard staple department, was able to obtain only the signatures of himself, his wife, his brother Joseph, and Block, his assistant, and so reported to Walter and Harry Vail. Mastik gave the following account of their reaction to his report: Q. Did you have any conversations with any of the Vails with reference to this petition? A. Well, after I give him the petition, after I give the petition to Robert Thorpe, I met Harry Vail in the aisle and told him that none of my help would sign it outside of those three, besides myself.' We went into Mr. Walter Vail's office and he said that the best thing to do would be to get rid of them, or those people that would not sign it, which we proceeded to do. [Italics supplied.] T The respondent, in its brief, states that Walter Vail testified that he did not see the petition or know who had signed it until several days after December 2, the date of its circulation. Actually, Vail's testimony as to when he first saw the petition was "It may have been around the 4th, I imagine " It is hereinafter found that Vail knew on December 2 who had "signed, and who had not. 8 The respondent's general attitude toward unions and union organization appears from the testimony of Richard Vail. Q. As a matter of fact, you are quite opposed to unions, are you not? A. No, I am not. Q Are you just opposed to them in your shop? A. I would not be opposed to a company union. By Trial Examiner RIICKEL : Q What do you mean by a "Company Union" 9 A I mean a union formed of the employees of Company and officered among themselves r e s s • a s By Mr. HELGESEN Q Then do I understand it to be your testimony that you are primarily opposed to outside unions A. You might put it that way, yes. VAIL MANUFACTURING COMPANY 193 By questioning employees concerning their membership and interest in the Union and union organization, and by inspiring the petition of December 2, 1943, and aiding in its circulation, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. C. The discharges; further acts of interference, restraint, and coercion The respondent defends all the discharges' on the ground of certain produc- tion restrictions and limitations imposed by the War Production Board in its Limitation Order L-73. The basic, pertinent provision of this order reads as follows : , During each period of 3 months beginning with July 1, 1942, until otherwise ordered, no producer shall use : In the manufacture of Group II products,'0 more iron and steel than 15 percent of the aggregate weight of all materials used by him in the manu- facture of Group II products during 1940. The respondent has been operating under the above provisions since July 1; 1942 They have had the effect of reducing the respondent's production of paper clips, staples and pins to approximately 60 percent of its 1910 production, and of suspending entirely the manufacture of some other items. During this period the respondent has accommodated itself to the basic production restrictions imposed upon it, and it is not claimed that the discharges in question were occasioned by the existence of these particular restrictions. A further regulation of the War Production Board, however, though permitting manufacturers, includ- ing the respondent, to anticipate during one quarter of a year a portion of its metal allocation for the following quarter, forbids them, during the last quarter of any year, to draw upon their metal quota for the first quarter of the following year. The respondent defends the discharges complained of specifically upon the ground that by the latter part of November, 1943, the respondent's stock of metal had declined to such a point that it could not maintain its level of production for the month of December 1943 without drawing upon its quota for the first quarter of 1944 This being forbidden, the respondent, according to its contention, deter- mined further to restrict production during December, and to release a propor- tionate number of employees. Beginning about November 15, Walter and Richard Vail several times discussed the possibility of having to reduce operations for the remainder of 1943. It was not until November 30 or December 1, however, according to the testimony of Richard Vail," that such a reduction was finally decided upon. The decision was ° With the exception of the discharge of Frank and Joseph Diastik who, the answer alleges, resigned their employment 10 Group II products include those manufactured by the respondent, such as paper clips and stapling machines. li Vail's testimony on this point was as follows . By Mr. HARRINGTON : Q. Did you have any conversations with your brother, Mr. W. J. Vail, along in November, 1943, about this situation? A. We had several discussions. Q. What was said by you and what was said by him in connection with the using up of your production quuota? A. Well, It was pointed out that the records were kept in my office by a statistician, and pointed out to W. J. Vail that they were dangerously close to the limitation. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made following the receipt of figures on production and on the consumption of raw materials for the month of November.12 It was followed by the discharge 13 of six employees on December 1, 13 on December 2, and one on December 3, all of whom are named in the complaint. The decision was preceded, however, by the discharge of 6 employees on November 26, 2 of whom are named in the complaint;' and by the discharge on November 29 of three others, Hirschman, Carlson, and Bombin, all of whom are so named. As is hereinafter found, no employee not a member of the Union was laid off or discharged as the result of the decision to reduce employment, in spite of the fact that on November 29, the respondent employed approximately 110 employees, of whom only 67 were members of the Union 16 1. The discharges on November 29 in the wire drawing department Richard Hirschman was employed by the respondent on December 17, 1941. At the time of his discharge lie was working as a die reamer in the wire drawing department, under the supervision of Nels Thorp, department head. Hirschman was the only employee- to do this type of work with the exception of Thorp, who did die reaming when not actively engaged in supervising the 15 employees in the wire drawing department. Walter Carlson came to work in October, 1939. When ,discharged, he was working as a wet wire drawer along with three others doing that work, all of whom had been hired before Carlson. , Anthony Bombin was employed in September 1932. When discharged, he was working on the night shift as a wire tinner, along-with two other tinners, Siss and Botta, both of whom had been hired prior to Bombin. point, and that we would have to cut production and operations and to do it quickly, or lay ourselves open to' the penalty that was prescribed to us the previous year. Q And then what did you decide to do, you-and W. J Vail'? A We decided that there was no alternative but to, reduce our operations and proportionately reduce our force Q. And can you recoiled (sic) about what time of the fourth quarter of 1943 you reached that decision 9 A. Well, it had been discussed a number of times from the 15th of November on, and I think it was about the final week in November when I went into his office and said something had to be (lone and done immediately. Q Did you have any conversations with Toots' (Wisniewski, staple packing department forelady.) A. After I. received figures on production consumption of material at the end of November, it must have been about either November 30 or December 1=. Mr. HELGESEN : What is this '1 I don't quite get this. What happened on November 30 and December 1' The WITNESS That is the time I went in to W J. and said we most do something about the thing immediately, because we were going to overlap again., [Italics supplied ] 12 Although Richard Vail testified', as above quoted, that production records were kept in his office by a statistician, the respondent did not introduce them or any summary of them in evidence. 13 The term "discharge" is used herein interchangeably with the term "layoff" or "release". No employee, the termination of whose employment is herein discussed, was told that he was only being laid off,'or that lie might he rehired, or given any advance notice that his employment would be terminated . The respondent contended that it could not so inform its employees because of the lack of any certainty that they would be rehired, and admitted that, with the exception of a few employees who were rehired, it made no attempt to recall the others 14 The discharges on November 26 are hereinatter found to have been made in the usual course of the respondent's business, and not related to the other discharges- 11 The figure on employment is taken from respondent's exhibit No 20, and that on the Union's membership from the testimony of George Mischeau, sub-district director of subdistrict No 3, district 31 of the Union. VAIL MANUFACTURING COMPANY 195 Bombin joined the Union on November 5, at the first union meeting. There- after he became active in soliciting members The role of Hirschman and Carlson in forming the Union has been previously discussed On Tuesday, November 29, Thorp handed Hirschman and Carlson their dis- missal slips, telling them simply that they were being let go because of "production difficulties." Bombin, who worked on the night shift, was visited at his home at about 9 o'clock on the morning of Wednesday, November 30, by Thorp, who handed him an envelope containing his release, pay check, and a note signed by Walter Vail telling him that his services were no longer required. Neither Hirschman, Carlson, nor Bombin was told that he was laid off, rather than discharged, or given any prior warning that he might be released. The regular weekly pay day for employees in the wire drawing department was on Wednesday. The respondent contends that, the release of a number of employees having been determined upon because of the exigencies of production, Hirschman, Carl- son and Bombin were selected on the basis of length of service with the respondent. As has been stated, Hirschman was the only employee who did die reaming with the exception of Thorp, the head of the department, who was employed several years prior to Hirschman. Similarly, Carlson had less seniority than any of the other three wet wire drawers, and Bombin was the youngest tinner in point of service The undersigned , however, finds unconvincing the contention that Hirschman, Carlson, and Bombin were laid off for the reasons assigned by the respondent. On the basis of Richard Vail's own testimony, it is clear that the decision to lay- off employees was not reached until December 1, or November 30 at the earliest, when the production figures for the month of November were available. It is apparent from the testimony of the Vails, and from the record as a whole, that up to that time Walter and Richard Vail, although they had discussed the advisability of reducing production and proportionately reducing employment, had been postponing such a, decision in the hope that the month of December might be bridged without such action being necessary 16 It is hardly understandable, if the respondent's, defense is to be credited, why the respondent should on November 29, prior to its decision to dispense with any substantial number of employees, and prior to the receipt of the November production figures, select the wire drawing department, composed wholly of skilled workers, for a release of three employees." Moreover, as will more fully appear hereinafter, the wire drawing department was the only de- partment in the plant where the discharges were made solely on the basis of 14 On January 1 a new quota of metal would be available under the War Production Board regulations, a fact repeatedly noted by the respondent's witnesses As a matter of fact , in February existing restrictions on the production of staples were removed entirely by the War Production Board, and unlimited production became possible. 17 The staple packing department , under the supervision of Teresa Wisniewski, was a more logical place to begin a reduction of force Richard Vail testified as folloics with respect to the employment situation in that department where group discharges did not begin until December 1: Q. When you finally decided to lay off the number that she (Wisniewski), had listed, recommending that they be the ones dismissed, had you thought of cutting your staff pretty much to the bone, insofar as her department was concerned 9 A. The staff had not been cut to the bone As a matter of fact , we had a lot of excess labor in that department-we had maintained on the pay roll for a con- siderable length time, without having sufficient work for them to do , with the hope that they could be retained on the pay roll by the relaxation of the limitation orders. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority." It was evident that selection solely on this basis would auto- matically involve Hirschman, Carlson and Bombin in a lay-off. The undersigned believes and finds that the discharge of these three employees was unrelated to the respondent's claimed decision, subsequently made on November 30 or December 1, to solve a production problem by reducing the number of employees. Hirschman and Carlson, were of all the respondent's employees, the two most active in forming the Union, and Bombin was among the first to join. The questioning of Hirschman the previous May by Walter and Harry Vail concerning both his and Carlson's interest in union organization, and Walter Vail's statement to Hirschman at that time that the respondent would close its plant rather than tolerate its organization by the Union, have previously been adverted to.' Their later discharge on November 29, prior not only to the discharge of other employees, but prior even to any decision to dis- charge others, is not consistent with the respondent's defense that they were discharged, along with others, in order to reduce the employees to a number proportionate to the respondent's necessities. Moreover, the method of select- ing these three employees was not in conformity with the method subsequently employed elsewhere in the plant, but was such as necessarily involved them, and them alone, in discharge. The discharges occurred on the day of the filing of the Union's petition for investigation and certification, a day or so after Vail's declaration to Mastik that the respondent "didn't need" the Union, and four days after Vail's return from Florida to find that the "spirit of unrest" had assumed larger proportions during his absence, and his subsequent inter- views with the older employees to ascertain the reasons for the growth of union sentiment. The undersigned finds that the respondent discharged Hirschman, Carlson, and Bombin in an attempt to quell this "spirit of unrest", and to check the growth of the Union. As is hereinafter found, the respondent shortly thereafter dis- charged other employees in the same endeavor. 2. The discharges in the staple packing department Teresa Wisniewski is in charge of the respondent's staple packing. Although she does some packing herself , at least half of her time is spent in supervising other employees. She effectively recommends employees for hire and discharge. She testified, and the undersigned finds, that the employees under her direction * 15 As is hereinafter found, Wisniewski gave length of service only minor consideration in discharging employees in the staple packing department . Walter Vail testified as, follows as to the reasons not following seniority in the standard staple department in subsequently discharging additional employees : By Trial Examiner RUCKEL: Q. Were they the newest in that department? A. Well, I could not say that they were the newest, no, but they would be auto- matically eliminated by the shut down. It was up to Frank Mastik to choose them. - Q Did you tell him the basis on which he was to make the selection? A. Yes, I told him to go ahead and cut it right down to a skeleton organization- Q. Well - I want to know - what the criteria was which you gave Mastik in selecting these people for lay off. You testified that of the wire drawers and wet wire drawers and tinners and die reamers that seniority was the only criteria, the last one hired in that category was let out A. In Frank's department there was a continual coming and going of employees There were comparatively few people who stayed any length of time. I just told him to keep the people best fitted for the single turn. VAIL MANUFACTURING COMPANY 197 look upon her as a forelady. In November; 1943, immediately prior to the dis- charges, she had from 20 to 25 employees under her direction, mostly girls who performed semi-skilled work. During the latter part of November, according to the testimony of Richard Vail,19 Vail told Wisniewski that it might become necessary to lay off a number of employees in her department, and, according to Wisniewski, instructed her to prepare a list of those whom the respondent "could do without for awhile." Vail directed Wisniewski to make her selection on the basis of "seniority, aptitude, and other considerations of that character." Accordingly, Wisniewski submitted to Vail a list of six employees.20 Vail told her that in order to meet the respond- ent's requirements, more than six employees would have to be released, and instructed her to prepare a second list. About an hour later, Wisniewski handed Vail another list containing 13 additional names 21 It is noteworthy that Vail, according to both his and Wisniewski's admissions while testifying, at no time told Wisniewski how many employees the respondent was contemplating laying off from among the staple packers, or how many employees Wisniewski should include in either of her two lists. Thd respondent, on November 26 and December 1 and 2, 1943, discharged all of those employees whose names Wisniewski had given Vail. No employee whose name Wisniewski had not given Vail was discharged When asked how it came about that the 19 employees selected by Wisniewski exactly equalled the number which the respondent allegedly found necessary to lay off in order to conform the remaining number of employees to its production requirements, Vail testified that the total of Wisniewski's two lists "just about fitted in with my impression of what we could spare without interference of service." a. The discharges on December 1, 1943 On December 1, 1943, Dorothy Malozzi, Rose Vommaro , Helen Szmagalski, and America Giglio ," from among those on Wisniewski 's lists, were called to the office and given release slips along with their pay checks Nothing was said as to why they were being released from their employment , until Malozzi , Vommaro, and Szmagalski called on Walter Vail in his office Vail told them, in explana- tion, that the respondent was "going slow on production." Wisniewski testified as to her reasons for listing these employees as eligible for lay-off, that Malozzi, Vommaro, and Szmagalski worked together on the same conveyor belt, and that they constituted a "clique " which "had the same ideas," 10 Although Wisniewski testified that she received these instructions during the first week in November, Vail placed it as occurring during the latter part of the month. The under- signed accepts Vail's testimony on this point as being more reliable than that of Wisniewski. 20 These employees were • Bryak, Aklinski, Wall, Just, Mutz, and Becker All of them were subsequently discharged , but only Just, Mutz, and Becker are named in the complaint. Aklinski, when told she was discharged, personally appealed to Richard Vail and was reinstated the same day. 21 These employees were : Olson , Adams, Murphy, Anderson, Andrzejak , Giglio, Vommaro, Malozzi, Szmagalski, Mary Monestere, Kosiara, Carmella Girodano, and Rose Girodano. All these were subsequently discharged, and all but the first two, Olson and Adams, who were discharged on November 26, are named in the complaint 22 It will be observed that none of these 4 employees was on Wisniewski's first list of 6 employees which she testified was compiled chiefly on the basis of length of service As to those employees on the first list, the two named in the complaint-Andrzejak and Mutz, discharged on November 26-are hereinafter found not to have been discriminatorily discharged. Malozzi came to work for the respondent on June 23 , 1941 ; Vomarro , on December 13, 1940; Szmagalski, on June 31 , 1941 ; and Giglio , on April 17 , 1941. Szmagalski joined the Union on November 5, and the others on November 9, 1943 . Szmagalski was elected one of the Union's three trustees . Neither Szmagalski nor Giglio was called as a witness, 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that they were engaged in arguments with fellow employees. Wisniewski ad- mitted, however, that these were "petty arguments" that did not amount to any- thing. She further admitted that she first heard about the Union from Malozzi and Carmella Girodano, who was' discharged on December 2, and that there- after she heard the Union discussed with increasing frequency in the rest rooms. She admitted knowing that Malozzi was quite active in promoting the Union, and that on more than one occasion she told Girodano and Malozzi that she was opposed to the Union. During one such conversation, according to Wis- nieswski, the two girls told Wisniewski that they were "going through with it," regardless of what Wisniewski had to say. As to Giglio, Wisniewski testified that she put down her name because she absented herself excessively from work. b The discharges on December 2, 1943 On December 2, 1943, as has previously been found, the respondent, through its department heads and others, obtained the signatures of employees to a petition in which the employees expressed their loyalty to the respondent and their opposition to the Union. Carmella Girodano,23 Rose Girodano, Mary Monestere, Josephine Anderson, and Virginia Murphy were individually asked to sign the petition and each of them refused to do so. Later, at various times during the same day, they were called individually to the office and handed their pay checks and release slips by Richard Vail, who told them simply that the respondent was cutting down production None of them was told that she was merely being laid off, or that she might later be called back to work. All of them had been paid the previous day, which was a regular weekly pay day. Emma Kosiara, Leona Becker, and Angeline Just also failed to sign the peti- tion, and were discharged along with the previously named employees. None of these four employees testified, however, and there is no evidence in the record that their failure to sign 2' followed a request that they do so. Wisniewski testified that her first information concerning the Union was derived from Carmella Girodano, late in November, when she had the following conversation with her: The WITNESS: I asked her how come she didn't mention it before, and she said that she wanted to keep our friendship and she was afraid I wasl a company man, and if she didn't keep all this on the "Q-T" that I would have brought it in to the Vails and it would have upset all their plans. By Mr. HEr0ESEN : Q What did you say to her? A. I told her I did not see why she felt she should be in the Union, because I explained to her that her job could not pay any more- Wisniewski admitted having another talk with Girodano concerning the Union, following a talk between Wisniewski and her husband. Wisniewski was not questioned as to the substance of this conversation, but did not deny Girodano's credible testimony that it occurred on the morning of December 2, shortly before 23 Carmella Girodano first came to work for the respondent on October 1940 , Rose Girodano in December 1941 ; Mary Monestere in August 1942; Anderson in January 1943 ; Kosiara in November 1942; Becker in June 1943 ; Just in September 1943, and Murphy in July 1943. All of them joined the Union during the first part of November Carmella Girodano was elected as recording secretary at a union meeting on November 21. 2; Virginia Murphy, also , did not appear as a witness The finding previously made, that , she was asked to sign the petition and refused , is based upon the testimony of Russell Wade who was standing near Murphy at the time VAIL MANUFACTURING COMPANY 199 the circulation of the petition. Wisniewski, according to Girodano„came into the department "blowing her tops," and "telling all us girls to lay off, that we would not get anywhere.by joining up with the Union," and stating that she had had a conversation with her husband the night before in which he declared that there was "no use" in having a union in the plant. Girodano testified, and Wis- niewski admitted that, in reply, Girodanoitold Wisniewski, to "mind her own business," and that she, Girodano , was "wholly for the C. I. 0., and that was all there was to it." Wisniewski testified as follows with respect to putting Carmella Girodano on her list for discharge: Well, Carmella Girodano had ability and she was in for some higher work. In other words, she was an operator's helper"' Now she had so much ambi- tion that she would have like to have been an operator, but in order to recog- nize her and speak for her in the office and get her that promotion, that would mean throwing off the real operator, and you could not very well do that, so being that she had that ability, I thought maybe if she got out she would have a chance to be recognized somewhere else. Q. Well, you discharged her for her own good, is that it? A. No, sir, she was very dissatisfied and we could not do anything for her at the time, and I did not know how soon we would do anything for her Q Did you tell her prior to the time she was discharged, just what you told us as to the reason for letting her off? A. No, sir, I did not. I just gathered that is how she felt, and that is how I felt. With respect to Rose Girodano, Wisniewski testified that, although she had ability, she was "dissatisfied toward the end there, just before I put them down," so she gave her "a chance to prove her ability elsewhere." Concerning her reason for including Mary Monestere in her list, Wisniewski stated that it was because. like Rose Girodano, she was "dissatisfied." As to Anderson and Murphy, who were on the night shift, Wisniewski testified that they preferred night work and, inasmuch as the respondent was discontinuing the night shift," Wisniewski decided to put their names on her list. There is no evidence, however, that either Anderson or Murphy was asked if she would be willing to work on the day shift. Wisniewski gives as her reason for including Becker and Just, that they had been employed only a short while, and that Just had not made satisfactory progress in learning her work. Wisniewski did not testify as to why she selected Kosiara 27 The undersigned does not credit Wisniewski's reasons for including the above- named employees on her list for lay-off or discharge. As has been stated, the respondent discharged no employees on December 1 and 2, except union members, although as of December 1, only a bare majority of the respondent's total number of employees belonged to the Union. It is also significant that no employee, any- 15 As operator's helper, rather than a packer-a position she had formerly heed-Giro- dano was under the direct supervision of Robert Thorpe, head of the industrial staples department, rather than that of Wisniewski 2' It is hereinafter found that the discontinuance of the night shift was the result, rather than the cause of the discharge n Richard Vail testified , however, that he was "glad to see " Kosiara's name on the list because several months previously Kosiara had forged a pay check made out to another employee but upon her making restitution the respondent decided to keep her in its employ. The respondent , while it admits that Kosiara was not discharged by reason of this incident , contends that she should not be reinstated because of it 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where in the plant, who signed the anti-union petition circulated by the respond- ent,28 was discharged. Wisniewski's opposition to the Union is evident from the record, as is her .knowledge or belief that all the discharged employees were members of and variously active in the Union. He finds that such membership and activity were factors which, among others, caused her to include them in a list of employees whom the respondent should discharge, if and when the occasion arose. It has been found that Wisniewski, according to her own testimony, and acting upon the instructions of Richard Vail, compiled two lists of employees whom the respondent "could do without for a while." The six employees whose names were on her first list 21 were those whom it would normally be expected would be the first to be laid off. Six employees were, in fact, laid off on November 26, but these included only two employees on Wisniewski's first list,30 and four others" Two others on this first list, Just and Becker, were, as has been found-, not dis- charged until December 2, shortly after they had failed to sign the petition which the respondent caused to be circulated on that day. It is a reasonable inference that the respondent, in spite of the short time that Just and Becker had been in its employ, originally decided to retain them as employees and to discharge others in their stead, and that it decided otherwise only after, and because of, their failure on December 2, to sign the anti-Union petition. The only common denominator and constant factor that the undersigned is able to discern in the selection of staple packers, as well as other employees for discharge, is their union membership and activity. Not only was no non-union employee discharged, but those discharged were of varying lengths of service as well as of varying efficiency. On December 15, the respondent reemployed Murphy. On January 1, a new quota of metal became available to the respondent and on January 6 it reemployed Rose Girodano and Anderson. The respondent admittedly about this time began to advertise extensively for employees. In February, according to Vail's further admission, the War Production Board removed the ceiling on staple production, and unlimited production became permissible. The respondent then hired addi- tional new employees. However, in spite of the fact that, according to the respondent's contention, it discharged employees only because of the exhaustion of its 1943 metal quota and the continuing limitations on the amount of production, the respondent did not reemploy any other discharged employee.32 Asked the reason for its failure in this respect, President Vail testified that most of them had obtained work in defense plants, and that he considered it "unethical" to offer them reinstatement. c. The prior discharges on November 26 As has been stated, the respondent on November 26 discharged Frances Mutz and Mildred Andrzejak, along with four other employees not named in the com- 28 Although 18 other employees on the pay roll whose names do not appear on the petition were not discharged , there is no evidence as to whether these employees were working at the plant on December 2, and available for signing. 11 As has been stated, these were • Bryak, Aklinski , Wall, Just, Mutz, and Becker, only the last three of whom are named in the complaint 80 Bryak and Wall, neither of whom is named in the complaint. 31 Olson, Adams, Matz, and Andrzejak , of whom only the last two are named in the complaint, and as to whom it is hereinafter recommended that the complaint be dismissed. 32 With the exception of Leffring, who was reemployed on December 17 only upon his promise to resign from the Union But the respondent reemployed Olson and Adams, two of the six employees discharged on November 26, who were not members of the Union, and who are not named in the complaint. VAIL MANUFACTURING COMPANY 201 plaint. Mutz was employed on August 29, 1943, and Andrzejak in May, 1941. They joined the Union early in November, but neither, so far as the record discloses, became particularly active in the Union.' Matz was included in Wisniewski's first list of employees most eligible for lay- off or discharge. Wisniewski testified that she was included because she had been only recently employed Andrzejak although not included on the first list, was laid off according, to Wis- niewski because she was not making satisfactory progress in learning her work. Wisniewski testified that these reasons were similarly applicable to the other four employees discharged on November 26. The undersigned credits Wisniewski's testimony in this respect. Although both Mutz and Andrzejak belonged to the Union, the other four who were discharged along with them, did not This pro- portion of union to non-union employees discharged approximates the rates of union to non-union in the plant, and contrasts with the fact that only members of the Union were included in the group discharges on December 1 and 2. Further- more, the discharges on November 26, while they followed by one day Walter Vail's return from Florida, preceded not only the respondent's decision on December 1, to lay off or discharge a substantial number of employees, but also preceded the discharges on November 29 of Hirschman, Carlson and Bombin, the first two of whom were those employees most active informing the Union. It has previously been found, that the discharge of Hirschman, Carlson, and Bombin constituted the respondent's first move in attempting to put an end to union organization in the plant. The discharges on November 26, including those of Dlutz and Andrze- jak, the undersigned finds were made in the regular course of the respondent's operations, and were unrelated to union activity. It will be recommended that the complaint be dismissed as to Matz and Andrzejak. 3. Discharges in the industrial staple department Reynold Leffring and Russel Wade: Leff ring, who is 18 years of age, came to work for the respondent in June, 1943. At the time of his discharge lie was work- ing as a staple feeder in the industrial staple department under Robert Thorpe, department head Wade was first employed in September 1933 He left the respondent's employ in 1942, was gone 11 months, and returned in March 1943. At the time of his discharge he was working on the night shift as an operator, work similar to that clone by Thorpe on the day shift when Thorpe was not actively engaged in supervising the work of the department. Both Leff ring and Wade joined the Union during the early part of November. They were discharged on December 2 within a few hours after they had been asked and refused to sign the petition previously referred to." Robert Thorpe was not called as a witness Walter Vail, who approved the discharges from the industrial staple department, testified that because of the "loss of business" in that department only enough work was available for a sin- gle shift, and that he accordingly instructed Thorpe to discontinue the night shift and to retain the most efficient employees. Wade, when handed his release by Walter Vail, was told that his shift was being shut down, that he and the other employees ' on that shift were being ea Neither Mutz nor Andrze]ak was called as a witness 34 Leffring was asked by Marsh, and Ward by Thorpe 35 The other employees on the night shift in the industrial staple department were Virginia Murphy, Josephine Anderson, and another, unnamed employee Murphy and Anderson have previously been referred to as being . employed in the staple packing depart- ment The staple packing department was subdivided into the packing of industrial staples and the packing of standard staples . Apparently staple packers worked alongside an operator. 202 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD , released, and that the respondent was "going to let them go into a more essential industry." Leffring was reemployed on December 17, upon advising Walter Vail that he intended to drop out of the Union . He testified as follows concerning a conversation with Walter Vail at the time of his discharge , and one with Harry Vail upon applying for reinstatement : Q. What did Mr. Vail say to you when you were discharged. A If I liked my job, and I said "Yes , but I followed the rest." Q. What do you mean, "You followed the rest"? A. Because they did it , I did it. Q. Did what? A. Did not sign the petition. Q What did you say to Mr Harry Vail when you went back? A. I asked him if I could have my job back. Q. What did Mr. Harry Vail say to you? A. He said that he would talk it over with his brother- * * * * * * By Mr. HELGESEN : Q. Was the subject of your union membership mentioned in your con- versation with Mr. Harry Vail? A. Not that I know of ; I do not think it was. The undersigned granted the Board 's attorney permission to lead the witness at this point, in view of his obvious reluctance . Leffring continued : Q. Does that refresh your recollection? Will you go ahead and tell us what conversation you had with Harry Vail and what was said by yogi or Mr. Vail regarding the union? A. (No answer.) By Trial Examiner Rucaxt: Q. Tell us what was said? A. Well, I said that I did not want to go along with the union, and he says that he would have to talk it over with his brothers- By Mr HELGESEN : Q. Do you recall any mention being made by Harry Vail as to what young kids would sometimes do? A. He said that he knew that young kids, you know , that they would follow the rest, that they would go along with the gang most of the time, what they would do the other kid would do. Q. Did he say anything about young kids not thinking before they did something? A. Well, he said that he knew that a lot of young "kids do it before they realize what they are doing. Q. And was this statement that you have just testified to me made after you told him that you would drop out of the Union? A: (No answer.) Q. Was this statement that you just testified to , the remark made by Mr. Harry Vail, made to you after you had told him you would drop out of the Union? A. Yes. * * * * * * * Q. -Why did you tell,that to Mr. Vail? A. To Harry, when I talked to Harry. VAIL MANUFACTURING COMPANY Q. Yes. A. Well, I did say that. * * * * 203 Trial Examiner RUCKEL: The question is, "Why did you tell him that?" The Witness: Oh, I didn't want nothing to do with the Union and I liked my job and I wanted my job back. The respondent waived cross examination of Leffring. The undersigned finds that Leffring was discharged because of his union membership and because he refused to sign an anti-union petition, and that his reinstatement was con- ditioned upon his resigning from the Union. As to Wade, the undersigned concludes that the discontinuance of the night shift was the result of, rather than the cause, of the discharges, and that Wade's discharge, like that of Leffring, was because of his membership in the Union. 4. Additional discharge in the wire drawing department It has previously been found that Hirschman, Carlson, and Bombin were discharged on November 29, from the wire drawing department, because of their union membership and activity. On December 1, 1943, the respondent discharged Axel Gustafson, another employee in that department. Gustafson was first hired in August, 1941, as a dry wire drawer. He left in September, 1942, to enter the army, from which he was honorably discharged. He returned to work for the respondent on November 15, 1943,'° as a laborer in the wire drawing department He joined the Union the same day and was elected outer guard at the meeting on November 21. Gustafson was discharged at noon, although his regular quitting time was 5:30 o'clock. Upon releasing him, Nels Thorp, department head, told him only that he was doing so upon the order of Walter Vail. Walter Vail testified that Gustafson, like Hirschman, Carlson, and Bombin, was discharged because he was among the last employees hired. The record shows that with the exception of Carlson, whose case has previously been dis- cussed, and Sherbina, a dry wire drawer 3, who also performed some duties as a watchman, Gustafson was the youngest employee in the department in point of service. The undersigned, however, does not credit the reason assigned by the re- spondent. It is herein found that the respondent's decision to reduce its force was occasioned and motivated by its desire to put an end to union organization. Gustafson testified that a dhy or so after his discharge Thorp visited his home and told him that he had found out that Gustafson "did not have anything to do with the Union," and that he was "not supposed to be fired." Thorp, while testifying, admitted the visit and stated that he had a "family talk" with Gus- tafson during which he told him that he "would have a chance to come back" when work picked up. He did not specifically deny making the statement at- tributed to him by Gustafson, and the undersigned accepts Gustafson's testi- mony in that respect as true. 38 Gustafson was not thereafter offered reemploy- ment. "'Walter Vail testified that the date of Gustafson 's original employment determined his seniority standing , and it is so treated in the respondent's brief. 37 Gustafson , upon his return from the Army , though he performed only work as a laborer retained his prior classification of dry wire drawer. w Thorp's statement to Gustafson, to the effect that the respondent intended to dis- charge only those employees active in the Union , lends further support to the finding previously and hereinafter made, that other employees were similarly discharged because of their union membership. 0 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5 Discharges in the standard staple department • The respondent, from among the employees in its standard staple department, discharged Christopher Monestere on December 3, and Paul Galgan, Stuart Fairbanks, and Edward Lusinski (332) on December 2,,1943. Monestere came to work for the respondent in May 1941; Galgan in May 1942; and Fair- banks in August, and Lusinski in April 1943. At the time of their discharge Monestere and Galgan were working as machine operators. It does not clearly appear from the record what work Fairbanks and Lusinski performed. The above named employees joined the Union early in November, and Mones- tere was elected. vice-president at the Union's organizational meeting on Novem- ber 21. Each of the four refused 'a to sign the anti-union petition when requested to do so on the morning of December 2 It has been found when Mastik reported to Harry and Walter Vail that none of the' employees in his department would sign the petition excepting himself, his wife and brother, and Block, assistant department supervisor, Walter Vail replied that the "best thing to do would be to get rid of them," which, according to Mastik, the respondent "proceeded to do." Mastik's further credible testimony was that while, on most previous occasions, he himself had discharged employees, on this occasion he was not previously con- sulted as to the particular employees to be discharged. Galgan, Fairbanks, and Lusinski were discharged on December 2, within a few ^hours of their refusal to sign the petition. Monestere, however, was not discharged until the following day, December 3. âIastik testified as follows as to a conversation between himself and Walter Vail on December 2, concerning the discharge of Monestere : Q. All right, will you go ahead and state what was said by yourself and what was said by Mr. Vail. A. Well, he started the conversation by saying that we had to get rid of organizers for the Union, and I told him that there were several I would like to keep and that one was Christopher Monestere. I said that I had taken several years to break him in and he was at a point where he was of some help to the department and I would like to keep him. By Mr. HELGESEN : Q. What did he say? * * * * * * * A. Well, he just said, "Well, we will keep him." Q. Was Mr. Monestere retained in your employ? A. He was until the next day.` Q. And what happened the next day? A. The next morning I was called into Mr. Vail's office and he asked me if I knew what office Mr. Monestere was going to have in this union that was being organized, and I told him no, that I did not, and he said that he was going to be vice-president. Well, then he mentioned or said that we would have to get rid of him. Q. And do you know how long after this conversation occurred before Mr. Monestere was discharged? A.-A half day. Vail, while testifying, denied the substance of the statements attributed to him by Mastik concerning Monestere. The undersigned accepts the testimony of 39 The manner of asking and refusal was thus described by Mastik "I proceeded to call the help over and they just waved their hands at me and laughed and did not even come near me." 0 VAIL MANUFACTURING COMPANY 205 Mastik as true, and does not credit Vail's denial Mastik's testimony is sup- ported by the uncontradicted testimony, previously related, of Leffring and Gus- tafson as to similar conversations with Walter and Harry Vail, and Nels Thorp. Moreover, there is no other explanation of why Monestere, alone of those dis- charged in this department, was discharged on December 3, rather than on Decem- ber 2 with the others Following Vail's statement to Mastik respecting Monestere, the latter was called to Vail's office where according to Monestere, the tollowing conversation took place: Q Tell us what happened that day A. Well, Frank Mastrk sent me into the office to see Air Walter Vail. He said, "Mr Vail wants you " I went in and Mr Vail handed me my discharge and my release and he says, "Well, your services is no longer required, so we will have to fire you." I said, "Did you fire me because I joined the Union? FIe said,"No, we are slowing down on production," and he said, "We will have to lay you off," and I started to walk out and Air Vail said "Why did you join the Union?" I said, "I am tired of seeing these kids get kicked around by the foremen-" He said, "Well, we are not laying you off for that We laid off Dick Hirsch- man because he is a music teacher90 and he should not be working here. The WVIrNLSS : Then he says that, "If we have the union in here we will have to shut down because we cannot go on," he says Vail denied making the statements attributed to him by Monestere The under- signed does not credit Vail's denial and accepts Monestere's testimony as to this conversation as true Hlinko, who at the time of Monestere's discharge was working as a feeder, took Monestere's place as do assistant operator although lie came to work more than a year later than Monestere. The respondent offered no explanation for dis- charging llionestere whom Walter Vail admitted was a "very good" worker, in place of Hlinko The undersigned finds unconvincing Walter Vail's testimony that the discharges of Monestere, Galgan, Fairbanks, and Lusinski were rendered necessary because of the closing down of the second shitt in the standard staple department 41 The 90 This reference to Hirschman is unexplained by the record. 41 Vail 's testimony as to the reasons , and the manner in which employees were selected , was in part as follows : By Mr . HAaaiNGTON Q Did you discuss the release of these men with Fiank or Joe Mastik4 A Yes, I did Q Did they make any recommendation as to who should be laid off') A Well, I told Frank that I wanted to cut the turn down in the staple depart- inent to one turn. By Mr HELGESEN Q What does the witness mean by "one turn") A One shift We had been working extra shifts there Trial Examiner RUCIdEL You asked about Galgan You did not mention the others. He spoke about Galgan, Fairbanks, Lusinski, and Monestere The WITNESS Fairbanks and Lusinski were new boys there and they would not be required unless the other shift was to run. By Trial Examiner RUCKEL Q Were they the newest in the department? 639678-45-vol. 61-15 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' undersigned believes and finds that in the standard staple department, as else- where in the plant, the determining factor in-discharging employees was the advent of the Union and their membership in it, and that the abandoning of the second shift was merely the respondent's adjustment to the situation thus created. 6. The discharge in the wire flattening department Louis Maahs first came to work for the respondent in August, 1938. At the time of his discharge on December 1, 1943, he was working as a machine operator in the wire flattening department which consisted of himself and O'Brien. The latter was responsible for the work of the department and did some work as an operator. Maahs joined the Union during the early part of November, and on November 21 was elected as one of the three trustees of the Union. Maahs was called to the office on December 1, where a clerk handed him his pay check and release. No explanation was given him as to why he was being dis- charged. Walter Vail testified that it was because there was not enough work for two operators in the department, and that it had been decided to keep O'Brien and discharge Maahs. The undersigned does not credit the reason given by the respondent for dis- charging Maahs. Granted that the work in the department was such that one of the two employees therein could be dispensed with without impairing the work of the department, and granted that as between O'Brien and Maahs the latter was the natural selection for lay-off, it is apparent from the record as a whole that here, as elsewhere in the plant, the decision to discharge an employee was precipitated by the formation of the Union. The respondent here, as in other departments, admittedly had for sometime past kept employees with whom it might have dispensed, in the hope that the raw material situation might improve. The undersigned finds that the respondent on December 1, discharged Maahs as it did other employees because of the growing activity of the Union and because of Maahs' part in it.92 7. The discharge of Frank Mastik and Joseph Mastik Frank and Joseph Mastik are brothers. The former came to work for the respondent in 1922, and the latter in 1935. At the time of their separation from the respondent's employment on December 6, 1943, Frank Mastik'was in charge A Well, I could not say that they were the newest, no, but they would be automatically eliminated by the shutdown. It was up to Frank Mastik to choose them- Q. They could be put back on the other shift, could they not9 A. Well, I suppose they could be placed on the other shift, but I left it up to him. Q. Did you tell him the basis on which he was to make the selection? A. Yes, I told him to go ahead and cut it right down to a skeleton organization, consisting of one turn and keep enough people in that turn, like, take Monestere. Monestere was a good man there but lie was automatically laid off because it would throw the turn out of balance- - 42 As is pointed out in the respondent's brief, there is no specific evidence that the respondent knew that Maahs and certain other employees were members of the Union The undersigned believes it to be a reasonable inference , however, and finds, that the respondent was aware of the interest in the Union, if not the actual membership of Maahs and these other employees It is evident from Walter Vail's questioning of Hirschman as to his and Carlson's contact with a union organizer the previous May; from Vail's statement to Mastik that Monestere was vice-president of the Union, from Wisniewski's conversations with employees concerning tht Union, and from the record as a whole, including the fact that the respondent discharged no employee on December 1 or 2 who was not a member of the Union , that the respondent's officers and supervisors were themselves kept informed as, to the union affiliations of the respondent's employees. VAIL MANUFACTURING COMPANY 207 of the day shift in the standard staple department, a position he had held for approximately nine years, and his brother in charge of the night shift, a position he had held for about four years. A few days after the filing, on November 29, of the Union's petition for inves- tigation and certification, Walter Vail, at the Board's request, began the com- pilation of a list of employees eligible to vote in a Board election.- On Saturday, December 4, Vail went through the plant, "checking over the names out there in the factory and putting the various positions of men down," as he went along. He arrived in the standard staple department in the afternoon as the shifts were changing, and told the two Mastiks, who were standing together, that he was putting them on his list as day and night operators. Frank Mastik testified 43 that Vail stated that he was doing this so that they could vote against the Union. Vail denied making this statement, but the undersigned, for reasons which will hereinafter appear, does not credit his denial., Frank Mastik testified as follows with respect to related events which took place on the following Monday, December 6: Q. All right, what happened after that? A. Well, then we went home, and over the week end, why we got to thinking that that did not sound right, that that was not'treating us fairly there, and we knew that we had hired and taken care of 44 all the people in that partic- ular department and that we could not say that we were not foremen. We would lose the friendship of our fellow workers and my brother Joe and I decided that Monday we would go in there and tell him that we could not do that. So Monday morning, about 10 o'clock, we had a conference with Mr. Vail and we told him that we would not agree to those ways of doing it, that before I would do anything like that, why, I would take a release. So he went on to say that if that was the way we felt, why, he would not put us down that way, he would keep us on the list as foremen. So he said that was O. K., that he would not put us down as operators. We had been listed as foremen, and we went out of his office. About five minutes later one of .the clerks came out of the office and says, "Mr. W. J. Vail would like to see you in there." We went in . . . We got into his office and he said, "We have decided to give you your releases." So I took the release and started out the door and he got up and says; "I want to go out with you to see that you do not take anything that belongs to the company." We went back to the department. Walter Vail, on direct examination, gave the following account of this con- ference: ... Monday morning when I got into my office Frank and Joe were seated on the davenport there and Frank was the spokesman. He said to me, "I see we are being considered as operators." "Well, yes," I said, "Frank, I-have never considered you anything else. You were always an operator." Well, he says, "We want to be considered foremen or we are quitting." Well, I said, "Frank,-and you too, Joe." "Frank, you have been here twenty- one years"-and Joe, I think, was there around seven years-I said, "Don't be foolish." 43 Joseph Mastlk, at the time of the hearing , was in the armed forces and did not appear as a witness. 44 Although final decision in hiring was exercised by Walter Vail, Frank Mastik cus- tomarily interviewed prospective employees in his department and made recommendations to Vail. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I was a little frightened myself. I did not want to lose them and I said, "What you had better do is to go back to your job and think this thing over for an hour and then come back and let me know after thinking it over just what you intend to do." So they went out and, oh, I guess it was I got to think it over myself, and I think it was maybe half to three-quarters of an hour when I called them back and asked them if they felt the same way about it, and the two of them said yes, that they did. Well, I said, "In that case, why, it is up to you to quit." So they said, "all right, we are quitting." On cross-examination Vail further testified as follows: Q You knew that Frank iAIastik objected to it on the basis that all em- ployees considered him a foreman and he (lid not want to attempt to vote in an election, did you not? A. No, I did not. Q What did he say was the basis of his objection? A Well, he wanted to be called a foreman. I don't know what his reason was for that. He made that the basis for his quitting. I By Trial Examiner RUCKEL : Q. Did he ever ask you previously for the title of foreman, to have the title of foreman conferred upon him? A.. He never did, no. Q. What could have been his point at this time in asking that the title be made clear? A. I don't know. That was a mystery to me, too- Q. That was a voting list for the election? A. That is right. Q And you wanted him on that list? A. Certainly I did. By Trial Examiner Ruci^:Er.: Q You thought you knew if he was on that list you knew he could vote, right? A. Yes. Q. You knew that his functions were such that he would not be permitted to vote if the Board knew what those functions were? A No, I did not ; I could not say that. Q You said just a while ago, you said yesterday that in general you knew that employees with supervisory authority were not permitted to vote in Board elections. A. Supervisory authority Does it not depend on how much of their time they put in working on the job?- By Trial Examiner RUCKEL: Q. Is it not pretty clear that irrespective of what you thought that Mastik thought because of his functions, irrespective of what he was called, that he should not be permitted to vote in a Board election and that is the reason that he did not want to be classified as an operator? A. That is probably what he thought. The undersigned finds Mastik's account of 'his conversation with Vail on December 6, to be nearer in accord with the facts than the version given by Vail. Vail's testimony, as a whole, is disingenuous and unconvincing. If Vail VAIL MANUFACTURING COMPANY 209 was engaged merely in drawing up a list of eligible voters for the Board, and honestly believed the Mastiks were eligible to vote, it is hard to understand why he should have found it necessary to discuss the matter with the Mastiks in the first place The fact that he informed the Mastiks that he was putting them down as operators leads the undersigned to conclude that he feared the possibility of their raising an objection as to their classification, and lends support to Frank Mastik's testimony that Vail told them, in explanation, that they were being listed as operators so that they might vote against the Union. The statement of Frank Mastik that "before he would do anything like that" he would accept a release from the respondent, did not constitute a resignation. At the most, it was a threat to resign if the respondent persisted in classifying him as an operator. According to Mastik's testimony, which the undersigned has accepted as true, Vail yielded the point and agreed to list him as a supervisor. The Mastiks believed that the matter was settled. Admittedly, at this point, they did not quit their employment, but on the contrary returned to work. Nor did either of them take any further step toward quitting. On the contrary, Vail called them back to his office and reopened the subject. Even if Vail's testimony that he told the Mastiks to think the matter over for an hour and then come back to the office were to be taken as true, Vail's action in calling them back before the expiration of that time was a forcing of the issue, and was hardly consistent with his other testimony that he was "a little frightened" at the prospect of the Mastiks' quitting. Moreover, assuming the truth of Vail's testimony, his inquiring if they "felt the same way about it", and, upon being told that they did, his further statement that "In that case, why it is up to you to quit," constituted, under the circumstances, a discharge rather than a resignation. The undersigned finds that the respondent's classification of the Mastiks as non-supervisory rather than as supervisory employees, and its attempt to persuade them to consent to such a classification, constituted, in the circum- stance of this case, unfair labor practices. He further finds that the respondent discharged the Mastiks because they refused to assist the respondent in the commission of these unfair labor practices. d. Conclusions as to the discharges Whether or not a reduction in the respondent's labor force for the month of December 1943, was warranted, from a managerial standpoint, by the amount of metal remaining available to the respondent from its 1943 quota, the undersigned concludes from the above findings of fact, and from the record as'a whole, that the respondent's decision, made on November 30 or December 1, to effect such a reduction was motivated by the appearance of the Union in the plant It is difficult to believe that the respondent, knowing that a new metal quota would be available to it beginning on January 1, and in view of the admitted scarcity of labor, would not have continued to maintain its labor force throughout the month of December if the threat of unionization had not arisen. Moreover, the re- spondent admittedly entertained the hope that restrictions on the manufacture of its products would shortly be removed entirely. They were, in fact, removed dur- ing the following February. But when, as a result, production was substantially increased, the respondent, though it hired new employees and advertised for others, did not offer reemployment to any of those whom it had previously discharged.9B 41 The reemployment of Anderson, Rose Girodano , Leffring and Murphy took place during December and the first week in January 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The conclusion that the respondent's decision to discharge a number of em- ployees was caused by the advent of the Union, is supported by Richard Vail's admission that he looked with disfavor upon "outside" unions; by Walter Vail's statement to Hirschman as far back as the previous May that, rather than submit to unionization, the respondent would close its plant ; by his statement to Frank Mastik on December 2, that the employees who did not sign the anti-union petition should be discharged ; by the fact that the only employees discharged on November 29, and thereafter, were members of the Union,48 although only a bare majority of the total number of employees were members of the Union ; by the respondent's action, prior to its final decision to lay off a number of employees, in discharging three employees from the wire drawing department ; by the respondent's failure to give its department heads any instructions as to how many employees should be released, in spite of the respondent's claim that it laid off a number of em- ployees proportionate to the raw materials available ' and by the other facts and circumstances set forth above. The evidence points to the conclusion, and the undersigned finds, that after receipt of the Union's request for a bargaining conference, and upon Walter Vail's return from Florida, to find that' "unrest" in the plant had increased during his absence, the respondent, in order to check this "unrest" determined to put into effect a decision which it had theretofore sought to avoid making, and to discharge a number of its union employees, including several of the Union's officers. With this purpose in view, the respondent first discharged three employees in the wire drawing department, two of them the originators and most active proponents of the union, of whom one was president of the Union. This was done prior to making any decision as to how many employees should be laid off or discharged. No reason appears for these preliminary dis- charges, or for selecting this department in preference to other departments, or for the selection of employees therein on a strict basis of seniority, in con- trast with the basis on which discharges were subsequently and elsewhere made, excepting the fact that Hirschman and Carlson were employed in this department and would be the employees immediately affected. i With the exception of the factor of seniority, subsequent discharges in other departments followed much the same pattern as was followed in the wire draw- ing department. In these other departments, where'many union employees had been employed prior.to non-union employees, seniority was only one factor in making the discharges, and aptitude and other more vague qualifications were considered including, in the case of the staple packing department, the fact that one or two employees were too "ambitious." In this department, too, employees originally selected as the most eligible for discharge, either were not discharged or were discharged only after others had been released, and, in at least one instance, only after the employee had failed to sign the anti-union petition. The signing of this petition, which, by its terms, was a declaration of loyalty to the respondent and a pledge of opposition to the Union, constituted effective insurance against discharge. Just as no non-union employee was discharged on or after November 29, so no employee who signed the anti-union petition was released. Some employees, though discharged on a regular weekly pay day were released before the end of the day, while others were discharged on the day following pay day. None was told that he was being laid off, rather than discharged, or that he might be reemployed after the beginning of the year, 96 With the exception, of course, of the Mastiks who the respondent contends resigned. 47 Most apparent in the case of the staple packers, where the number of employees whom Wisniewski placed on her list as being most eligible for lay-off inexplicably coincided with the number of those actually discharged. e I VAIL MANUFACTURING COMPANY , 211 in spite of the fact that the respondent envisioned an improvement in produc- tion at that time. Instead, one employee, Gustafson, was told in effect that he was not supposed to have been discharged because he was not believed to have been active in the Union, and another, Leffring, was reinstated only after he had promised to withdraw, and had withdrawn, from the Union, while still another, Christopher Monestere, whom the respondent on December 2 decided to retain, was discharged the following day after it had come to the respondent's atten- tion that he was vice-president of the Union. In summary, the undersigned finds that the respondent on November 29, November 30, December 1, 2, 3 and 6, 1943, discharged the employees whose names appear on Appendices A and B, hereof, because of their union member- ship and activity, or because they refused to acquiesce in -the respondent's un- fair labor practices, and that in so doing the respondent discouraged member- ship in the Union and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with its operations described in Section I, above, have a close, inti- mate, 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, the undersigned will recommend that it cease and desist therefrom, and that it take certain affirmative action which the undersigned finds will effectuate the policies of the Act. The undersigned has found that the respondent discriminated against the employees listed in Appendices A and B by discharging them. He will therefore recommend that the respondent offer the employees listed on Appendix A, with the exception of Joseph Mastik, immediate and full reinstatement to their former or substantially equivalent employment, without prejudice to their seniority or other rights and privileges, and make them whole 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 he would normally have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during said period . 1 With respect to Joseph Mastik, it will be recommended that upon application by him within forty (40) days after his discharge from the armed forces of the United States, , the respondent offer him immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority and other rights and privileges. 49 By "net earnings " is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county , municipal, or other work-relief projects shall be considered as earnings See Republic Steel Corporation V. N. L. R. B.. 311 U. S. 7. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the record shows that the respondent has reemployed those employees named in Appendix B, it will be recommended that the respondent make them whole 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 he normally would have earned as wages from the date of his discharge to the date of his re-employment by the respondent, less his net earnings during said period The undersigned has found that the respondent did not discriminate against Mildred Andrzejak or Frances 1\Iutz by discharging them. He will, therefore, recommend that the complaint be dismissed as to these employees Upon the basis of the above findings of fact, and upon the entire record in 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 2 By discriminating in regard to the hire and tenure of employment of the employees named in Appendices A and B, hereof, thereby discouraging member- ship in 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 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 5 By discharging Frances Mutz and Mildred Andrzejak, the respondent has not engaged in unfair labor practices. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that Vail Manufacturing Company, Chicago, Illinois, 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 reinstate any of its employees or by otherwise discriminating in regard to the hire and tenure of their employment ; (b) In any other manner, interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form labor organiza- tions, to join, or assist United Steelworkers of America or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2 Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Offer to the employees named in Appendix A immediate and 'full rein- statement to their former or substantially equivalent positions, without preju- dice to their seniority or other rights and privileges; VAIL MANUFACTURING CO1VJPANY 213 (b) Make whole the employees named in Appendix A, with the exception of Joseph Mastik, 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 that which lie would normally have earned as wages during the period from the date of his dischaige to the date of the respondent's offer of reinstatement, less his net earnings during said period ; (c) Upon application by Joseph Mastik within forty (40) days after his dis- charge from the armed forces of the United States, offer hum immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges; (d) Make whole Joseph Mastik for any loss of 'gay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the periods (1) between the date of the respondent's unlawful discrimination and the date of hit induction into the armed forces of the United States, and (2) between the date five (5) days after his timely application for reinstatement and the date of the offer of reinstatement, less his net earnings during these periods ; (e) Make whole those employees named in Appendix B 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 that which he would normally have earned as wages during the period from the date of his discharge to the date of his reemployment by the respondent, less his net earn- ings during said period ; (f) Post immediately in conspicuous places throughout its plant in Chicago, Illinois, and maintain for a period of not less than sixty (60) consecutive days from the date of posting, notices to its employees stating (1) that the re- spondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a) and (b) hereof; (2) that it will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d) and (e) hereof; and (3) that the respondent's employees are free to become or remain mem- bers of United Steelworkers of America, and that the respondent will not dis- criminate against any of its employees because of membership in or activities on behalf of that organization; (g) Notify the Regional Director for the Thirteenth Region in writing within twenty (20) days from the receipt of this Intermediate Report what steps the respondent has taken to comply therewith. It is further recommended that unless on or before twenty (20) days from the receipt of this- Intermediate Report the respondent notifies the said Re- gional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring the respon- dent to take the action aforesaid It is further recommended that the complaint as to Frances Mutz and Mil- dred Andrzejak be dismissed. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended-, effective November 26, 14:43, 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 state- ment 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 214 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD a brief in support thereof. Immediately upon the filing of such statement of exception 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 permission to argue orally before the Board request therefor must be made In writing to the Board within ten (10) days from the date of the order trans- ferring the case to the Board. Hon,acE A. RuoiEL, Trial Examiner. Dated October 9, 1944. Leona Becker Walter Carlson Paul Galgan Carmella Girodano Richard Hirschman Emma Kosiara Louis Maahs Frank Mastik Christopher Monestere Helen Szmagalski Russell Wade Josephine Anderson Rose Girodano APPENDIX A Anthony Bombin Stuart Fairbanks America Giglio Axel Gustafson Angeline Just Edward Lusinski Dorothy Malozzi Joseph Mastik Mary Monestere Rose Vommaro APPENDIX B Reynold Leffring Virginia Murphy