The Winter-Weiss Co.

In the Matter of H. A. WINTER, ADOLPH WEISS, MAURICE B. SHWAYDER, FRANCES MAURINE SHWAYDER BORWICK, AND W. W. GRANT, D/B/A THE WINTER-WEISS Co. and INTERNATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, AFFILIATED WITH THE CONGRESS OF INDUS- TRIAL ORGANIZATIONS Case No. 17-C-1137.-Decided April 6, 1945 DECISION AND ORDER On October 18, 1944, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondents had engaged in and were engaging in certain unfair labor practices affecting commerce and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report annexed hereto. Thereafter, the respond- ents filed exceptions to the Intermediate Report and a brief. None of the parties requested oral argument before the Board at Washing- ton, D. C., and none was held. The Board has considered the rulings made by the Trial Examiner at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed.' The Board has considered the Intermediate Report, the respondents' exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified below : 1. The evidence concerning the status of Hans Jorgensen as a supervisory employee consists of somewhat conflicting testimony of 1 At the hearing the respondents moved to dismiss the complaint on the ground that the Union had failed to incorporate and take certain other steps pursuant to provisions of the "Labor Peace Act " of the State of Colorado The Trial Examiner denied this motion. As hereinabove set forth , we affirm this ,ruling We have heretofore held that nothing in the language of the National Labor Relations Act or its legislative history warrants a conclusion that Congress intended the National Labor Relations Act, which is national in scope , to be subjected to varied and often conflicting provisions of State statutes Matter of Eppinger d Russell Co., 56 N. L. R. B 1259 . Furthermore , we take notice that, since the issuance by the Trial Examiner of his Intermediate Report, the Supreme Court of the State of Colorado has held to be unconstitutional provisions of Colorado's "Labor Peace Act," among them the section requiring labor unions to incor- porate, specifically relied upon by the respondents in support of their motion . American Federation of Labor, et al v. Reilly, et al., constituting Industrial Commission of Colorado, decided December 21, 3944, 15 L . R R. 556. 61 N. L. R. B., No. 50. 361 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD former employee Albert N. Mosher and of Jorgensen, unresolved by the Trial Examiner. Mosher testified that he had been employed by the respondents as a steel cutter and lay-out man and that Jorgensen was the foreman to whom he reported on this job. Mosher also testi- fied that Jorgensen laid out all the work; that, when necessary Jor- gensen criticized the work of those under him; and that he (Mosher) regarded Jorgensen as the representative of the respondents in author- ity over him. Jorgensen, however, denied that he was ever a foreman, or that he laid out work for other employees. He testified that he was a leadman in a department containing six workmen who reported to and were under the control of the department foremen. Although Jorgensen denied that he possessed authority to hire or discharge, he testified that he could criticize the work of the other employees and make reports to the foreman as to the manner in which their work was performed. While we find, contrary to Mosher's characterization, that Jorgensen was not a foreman but, as he testified, a leadman, we con- clude from Jorgensen's own testimony that he possessed authority to recommend, such as to effect changes in the status of the six employees in his department. Accordingly, we find, as did the Trial Examiner, that Jorgensen was a supervisory employee and that his acts and statements are attributable to the respondents. 2. The Trial Examiner has also found that Jorgensen .told Mosher that "the respondents would not countenance any Union activity in the plant." Mosher's uncontradicted testimony, which forms the basis for this finding, as disclosed by the record, is that Jorgensen, in ref er- ence to an occasion when Amos Leaf had been called into the respond- ents' office by Nathan R. Kobey, the respondents' counsel and assistant to the partners, said to Mosher, in substance, that "anyone that had any activities with the Union, the company wouldn't stand for it, they would call them on the mat for it." We find that Jorgensen made the statement substantially as testified to by Mosher and that thereby, among other ways more fully set forth in the Intermediate Report, the respondents interfered with, restrained, and coerced their em- ployees within the meaning of Section 8 (1) of the Act. 3. The Trial Examiner has found that the respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act by the acts and statements of specific supervisory employees, including Assistant Superintendent Lee Elder. However, the Intermediate Report does not set forth any such act or statement on the part of Elder. The record does not dis- close evidence sufficiently substantial to justify a finding of any such act or statement by Elder. We shall therefore modify the finding of the Trial Examiner, referred to above, by omitting therefrom the name of Lee Elder as a participant in such unfair labor practices. TH1♦WINTER-WEISS CO. 363 4. During October 1943, a conversation occurred between one of the respondents, Adolph Weiss, and Amos Leaf, in which, according to Leaf, Weiss said: "Don't you know you are just helping the Nazis, trying to organize this plant? . . . We don't need no union here." Weiss testified that he had called Leaf into the respondents' office on the occasion in question to discuss with him an anti-Semitic remark which Leaf had made to employee Lionel Lorie. However, Weiss testified that he said : "Well, that is the very thing that the Nazis are trying to promote in this country is that commotion." Weiss also testified, in substance, that by the phrase, "that commotion," he referred to the anti-Semitic remark which had been reported to him by Lorie, and that by that phrase lie meant "agitation regarding racial preju- dice." The Trial Examiner has found "that Weiss in fact spoke to Leaf about the remark reported by Lorie and further spoke to him substantially as both Leaf and he testified." However, Weiss' testi- mony, set forth above, while constituting an admission that he made a remark with respect to "the Nazis," similar to that adverted to by Leaf, nevertheless in effect also constitutes a denial that such remark included a reference to Leaf's efforts to organize the plant. The Trial Examiner has not resolved this conflict between the testimony of Weiss and that of Leaf. Since Weiss admitted that he made reference to union activity during this conversation, and prefaced his narration of the conversation by saying that there were "a number of occasions" on which he had "heard a lot of reports about Amos creating a little commotion down there in the shop," though neither he nor any other witness pointed to any specific instance of anti-Semitic remarks made by Leaf other than the single instance reported by Lorie, we are of the opinion that Weiss, by the statements set forth above, referred to union activity rather than to racial agitation and that Leaf so understood Weiss' statements.2 Accordingly, although we find, as did the Trial Examiner, that Weiss spoke to Leaf about the anti-Semitic remark reported by Lorie, we further find that Weiss, during the conversation above referred to, indicated to Leaf, in language substantially as testi- fied to by Leaf, that he should cease his efforts to organize the respond- ents' employees. 5. The Trial Examiner has found that Leadman Jorgensen told former employee Mosher that Leaf had been or was about to be dis- charged because of his union activities, basing this finding on testimony of Mosher which the Trial Examiner found to be undenied. The record, however, discloses that, while Jorgensen did not deny making 'Weiss also testified that in this conversation he said to Leaf, in reference to union activity, that "it isnt our policy to butt in ; if the fellows want to organize the shop, it is up to them . . .11 In view of the other unfair labor practices more fully set forth in the Intermediate Report, and of the record as a whole , we do not credit Weiss' testimony in this respect. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the statement substantially as testified to by Mosher, Jorgensen sought to modify the effect of the statement attributed to him by testifying that, "I might have had a conversation with him to that effect on hear- say; what others were talking," and "I told him what I had heard.",-- In his testimony, Jorgensen did not state whether he meant by the quoted portion of his testimony that his only source of information had been a rumor circulated in the plant or that Mosher was told by Jorgensen that he was merely quoting a rumor. Since Jorgensen did not deny the previous statement attributed to him by Mosher, here- inabove discussed, namely, in substance, that the respondents "would call" any employee who engaged in union activity on "the mat for it," and in view of the record as a whole, we are of the opinion that Jorgensen made the remark as testified to by Mosher without quali- fication. 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 respondents, H. A. Winter, Adolph Weiss, Maurice B. Shwayder, Frances Maurine Shwayder Borwick, and W. W. Grant d/b/a The Winter-Weiss Co., Denver,, Colorado, and each of them, their agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discriminating in regard to the hire or tenure of employment of any of their employees because of membership in or activities on behalf of International Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America, affiliated with the Congress of Industrial Organizations; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to join or assist Interna- tional Union, United Automobile, Aircraft and Agricultural Imple- ment Workers 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 con- certed activities for the purposes of collective bargaining or, other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Amos Leaf immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges; (b) Make whole Amos Leaf for any loss of pay he may have suffered or may suffer by reason of the respondents' 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 period from the date THE WINTER-WEISS CO. 365 of his discharge to the date of the respondents' offer of reinstatement, less his net earnings during such period; (c) Post at their plant at Denver, Colorado, copies of the notice a;±ached hereto, marked "appendix A." Copies of said notice, to be furnished by the Regional Director of the Seventeenth Region, shall, after being duly signed by the respondents' representative, be posted by the respondents immediately upon receipt thereof, and maintained by them for sixty (60) consecutive days thereafter, in conspicuous place, 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. (d) Notify the Regional Director for the Seventeenth Region in writing, within ten (10) days from the date of this Order, what steps the respondents have taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our em- ployees 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 International Union, United Automobile, Aircraft and Agricultural Implement Work- ers of America, affiliated with The Congress of Industrial Organi- zations, 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. 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. Amos Leaf All our employees are free to become or remain members of the above-named union or any other labor organization. We will not dis- 639678-45-vol. 61-25 366. DECISIONS OF NATIONAL LABOR RELATIONS BOARD criminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. H. A. Winter, Adolph Weiss, Maurice B. Schwayder,1 Frances Maurine Schwayder Borwick, and W. W. Grant, d/b/a The Winter-Weiss Co. --------------------------------------------------- (Employer) Dated ---------------- By ------------------------------------ (Representative ) (Title) 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. Elmer L. Hunt for the Board. Mr. Nathan R..Kobey and Mr. S. Leonard Berenheim, of Denver, Colo., for the respondent. Mr. Thomas Long and Mr. John C. Monarch, of Denver, Colo., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on April 10, 1944, by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri), issued its com- plaint dated August 5, 1944, against H. A. Winter, Adolph Weiss, Maurice B. Shwayder, Frances Maurine Shwayder Borwick, and W. W. Grant d/b/a The Winter-Weiss Co., herein called the respondepts, alleging that the respondents and each of them had engaged'in and were engaging in unfair labor practices, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint together with notice of hearing thereon were duly served upon the respondents and the Union. - With respect to the unfair labor practices, the complaint as amended' alleged in substance that the respondents: (1) on January 24, 1944, discharged Amos Leaf and thereafter refused to reinstate him because of his union membership and activities; (2) from and after May 20, 1942, threatened their employees with discharge if they continued their union membership and activities, questioned them respecting their sympathies and activities respecting the Union and about its affairs, and criticized the Union, its officers and members; and (3) by such acts and statements interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondents thereafter filed their joint answer dated September 12, 1944, admitting the allegations of the complaint with respect to the nature of their business and denying the commission of any unfair labor practices. 'On August 12, 1944, before the hearing, the complaint was amended by the Regional Director so as to allege that certain unfair labor practices had been engaged in by the respondents "from on or about May 20, 1942," rather than from "October 1, 1943." 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who did not desire reinstatement, for any loss of pay suffered by his having been discharged on February 12, 1942; and posted notices to the employees in the plant. B. Interference, restraint, and coercion Activity by the charging union began at the respondents' plant during the summer of 1942. Amos Leaf, whose discharge is considered infra, and at least one other employee, Bennie A. Morton, joined the Union on July 17, 1942. During July, Foreman Earl Sloan , according to Leaf's undenied testimony, which the undersigned accepts, told him in the presence of several other eth- ployees, that "they" did not want or need a union in the plant. In view of the context and the' respondents ' urpf'ent desire to keep the Union out of the plant, hereinafter found, the undersigned is convinced'and finds that by "they" Sloan meant the respondents and that he was so understood by his auditors. During the fall of 1942 , Foreman Earl Martelson told Leaf that while the plant did not need a union, the C. I 0 would be the least undesirable . At about the same time Foreman George Duncan told him that he believed the American Federation of Labor to be preferable.4 Organization of the-plant was not rapid and Organizer Thomas Long , who took over for the Union in October 1943, testified , and the undersigned finds , that it then had about 7S members . Leaf and employee Stanley Shaffer were placed in charge of the organizational work among the employees arid the tempo of the Union's drive quickened during the autumn. Former employee Albert N. Mosher testified 5 without contradiction , and the undersigned finds , that during the fall of 1943, Leadman Hans Jorgensen, whom the undersigned finds to have been a supervisory employee , told him that the respondents would not countenance any union activity in the plant. Assistant Foreman Charley Elmer Warner testified without contradiction, and the undersigned finds , that at about the same time, Foreman Leonard Lennox told him in the plant, that in his opinion the respondents did not approve of the Union for otherwise the Union would already have organized the plant. Leaf testified, and the undersigned finds, that Warner so reported to him after having consulted Lennox. During the autumn , according to the undenied testimony of employee Ernest Chappel, which the undersigned accepts, Assistant Foreman Harold Shearer told him that he hoped "the God damn union didn't get in." Leaf testified, and the undersigned finds, that during the same period , Shearer asked him how the Union's drive was progressing, that he answered that the Union was getting a few members every day, that Shearer thereupon told him that he was "bumping [his] head against a stone wall ", that the respondents "will get rid of you for your union activity ," and that Leaf did not have "a chance here." About October 20, 1943, Foreman Earl Martelson returned from a vacation He immediately thereafter asked employee One Cook whether he ( Martelson) "was the reason of the union wanting to get in there ." Cook replied that he did not believe so.6 Leaf testified, without contradiction, and the undersigned finds, that at about the same time, Martelson asked him why the Union was organizing Martelson's department , that he did not want to be relieved of his authority by 4 Leaf's undenied and credible testimony 5 Mosher's testimony was taken by deposition before the hearing, pursuant to stipulation of all parties The testimony of Charley Elmer Warner was also taken by deposition before the hearing Both depositions are in evidence. 6 Cook's undenied and credible testimony Martelson testified respecting the conversa- tion, That has been so long ago , I wouldn't make any statements one way or another- 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who did not desire reinstatement, for any loss of pay suffered by his having been discharged on February 12, 1942; and posted notices to the employees in the plant. B. Interference, restraint, and coercion Activity by the charging union began at the respondents' plant during the summer of 1942. Amos Leaf, whose discharge is considered infra, and at least one other employee, Bennie A Morton, joined the Union on July 17, 1942. During July, Foreman Earl Sloan, according to Leaf's undenied testimony, which the undersigned accepts, told hint in the presence of several other elh- ployees, that "they" did not want or need a union in the plant. In view of the context and the respondents' urgent desire to keep the Union out of the plant, hereinafter found, the undersigned is convinced and finds that by "they" Sloan meant the respondents and that he was so understood by his auditors. During the fall of 1942, Foreman Earl Martelson told Leaf that while the plant did not need a union, the C. I. 0 would be the least undesirable. At about the same time Foreman George Duncan told him that he believed the American Federation of Labor to be preferable.' Organization of the plant was not rapid and Organizer Thomas Long, who took over for the Union in October 1943, testified, and the undersigned finds, that it then had about 18 members. Leaf and employee Stanley Shaffer were placed in charge of the organizational work among the employees and the tempo of the Union's drive quickened during the autumn. Former employee Albert N. Mosher testified s without contradiction, and the undersigned finds, that during the fall of 1943, Leadman Hans Jorgensen, whom the undersigned finds to have been a supervisory employee, told him that the respondents would not countenance any union activity in the plant Assistant Foreman Charley Elmer Warner testified without contradiction, and the undersigned finds, that at about the same time, Foreman Leonard Lennox told him in the plant, that in his opinion the respondents did not approve of the Union for otherwise the Union would already have organized the plant. Leaf testified, and the undersigned finds, that Warner so reported to him after having consulted Lennox. During the autumn, according to the undenied testimony of employee Ernest Chappel, which the undersigned accepts, Assistant Foreman Harold Shearer told him that he hoped "the God damn union didn't get in." Leaf testified, and the undersigned finds, that during the same period, Shearer asked him how the Union's drive was progressing, that he answered that the Union was getting a few members,every day, that Shearer thereupon told him that he was "bumping [his] head against a stone wall", that the respondents "will get rid of you for your union activity," and that Leaf did not have "a chance here." About October 20, 1943, Foreman Earl Martelson returned from a vacation. He immediately thereafter asked employee One Cook whether he (Martelson) "was the reason of the union wanting to get in there." Cook replied that he did not believe so.' Leaf testified, without contradiction, and the undersigned finds, that at about the same time, Martelson asked him why the Union was organizing Martelson's department, that he did not want to be relieved of his authority by Leaf's undenied and credible testimony Mosher's testimony was taken by deposition before the hearing, pursuant to stipulation of all parties The testimony of Charley Elmer Warner was also taken by deposition before the hearing Both depositions are in evidence. 8 Cook's undenied and credible testimony Martelson testified respecting the conversa- tion, "That has been so long ago , I wouldn't make any statements one way or another " THE WINTER-WEISS CO. 369 the respondents as it had been in the case of another foreman whose department had been the scene of union agitation, that the plant needed no union, and that Leaf's presence in his department put Martelson "on the spot." Leaf replied that the employees badly needed a union and gave him certain reasons therefor. Employee Shaffer was dismissed on November 12, 1943. About two weeks thereafter, Martelson, according to Leaf's undened testimony, which the under- signed accepts, told Leaf that the respondents had known that Shaffer was a union advocate and had merely "let him go and gave him enough rope and then he would hang himself." The undersigned finds that the respondents, by the acts and statements of Earl Sloan, Earl Martelson, George Duncan, Hans Jorgensen, Leonard Lennox, Harold Shearer, and Lee Elder, have interfered with, restrained, and coerced their em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. C. The discriminatory discharge of Leaf Amos Leaf was employed by the respondents as a welder from August 17, 1941, to January 24, 1944, when they discharged him. The respondents concede, and the record reveals, that he was a satisfactory worker. He joined the Union on July 17, 1942 He was extremely active in its behalf, particularly during and after October 1943, to the time of his discharge, and ob- tained between 30 and 35 applications for membership from the employees of the plant. At about the time he joined the Union, Nathan R. Kobey, counsel for the re- spondents and assistant to the partners,' visited Leaf at the plant and informed him that "organizing [for the Union] on the job was out"" During September 1942, Leaf whose draft classification was then 1-A, en- deavored to enlist in the Navy but was rejected because of a heart condition During October he took up the matter of his deferment with Kobey, wkio, accord- ing to Leaf's testimony, told him that he would procure a deferment for him pro- vided Leaf ceased his union agitation, that the plant did not need a union, and that grievances and the like could best be handled by the employees in individual consultation with management. Leaf indicated to Kobey that he would there- after consult him about matters pertaining to working conditions. Kobey testified that he did not mention "union agitation" but that he did tell Leaf that lie had heard that Leaf "had been doing a considerable amount of agitating down there," that there were two ways in which "to go about these things. One was to get the men disturbed and one was to correct any condition that was enlitled to be corrected, and the way to correct it was to either go to his immediate superiors, or to cone to me, or Mr Winter or Mr. Weiss," that the respondents "had no interest in whether or not a union was organized" in the plant, that their only policy with respect to unions was to make the plant so excellent a place in which to work that any union that might come into it would be at a loss to find improvements in working conditions toward the attain- ment of which to strive, and that if Leaf felt timid about broaching complaints to the management, he might do so with security directly to Kobey. It is clear that Kobey's admonition to Leaf respecting his "agitation" had to do with his concerted activities in the plant. Both versions of the conversation are substantially identical, their ultimate significance completely so. From the entire evidence, the undersigned is convinced and finds that Kobey spoke to Leaf substantially as testified by the latter. He so described himself in the respondents ' answer. s Kobey's testimony. 370 DECIStOIVS OF NATIONAL LABOR RELATIONS BOARD Kobey's efforts were successful and Leaf received a deferment. The respondents again procured his deferment in May 1943, without his having asked them to do so, and in September of that year, Respondent Adolph Weiss told Leaf that he would again be deferred. During the latter part of 1943, according to Weiss, he observed numerous gatherings of employees in the shop indulging in "labor discussion," that he told Foreman Martelson to stop them, that they nevertheless persisted, and that he always "noticed Amos Leaf right in the center of these fellows." Leaf testified that during October 1..443, Weiss called him to his office, and asked, "Don't you know you are just helping the Nazis, trying to organize this plant" told him that the plant needed no union, and that "This door is always open ; any time you want to come up here, just come up and talk it over." Leaf replied that the need for a union was great in that seniority was not recognized in the plant and it did not have a standardized wage scale Weiss testified that he had heard reports of Leaf's creating'"a little commotion" in the plant and had spoken to him about it, and that on one occasion, acting on information given him by employee Lionel Lorie, had reprimanded Leaf for uttering an anti-Semitic remark,' told him that it was the soft of thing "that the Nazis are trying to promote in this country," and that as to union activity, "it isn't our policy to butt in." The undersigned, from all of the surrounding circumstances , and the record as a whole, is convinced and finds that Weiss in fact spoke to Leaf about the re- mark reported by Lone and further spoke to him substantially as both Leaf and he testified. During October, shortly after his conversation with Weiss and at a time when Leaf and Shaffer had "started working" on the Union's drive in the plant, Kobey visited Leaf there and according to the latter's testimony, askel him "what is all this agitation?" Leaf replied that there was too much welding smoke in the plant, that the employees desired to be allowed to smoke on the job, and that the plant lacked a proper seniority system. Kobey thereupon told Leaf that he was "off on the wrong foot trying to organize here," asked him what his draft status was, and upon being informed that it was 2-B, told Leaf that it would be changed. Kobey testified that "There had been some unrest" in the plant at the time in question, and that he therefore asked Leaf "what was wrong" ; that Leaf told him the men wanted to be able to smoke on the job, that Kobey replied that he could "take care of that", and that Leaf told him that there was no other "trouble." Kobey further testified that he made no statement to Leaf respecting his draft status. The record reveals that ventilation was thereafter installed in the plant in order to eliminate the welding smoke complained of by Leaf and that the employees were given the right to smoke while at work The undersigned in the light of the developments thereafter, doubts that Kobey threateningly told Leaf that his draft status would be changed, presumably for the worse, but believes that he told him that it might automatically change. He so finds, and further finds that Kobey told Leaf that he was wrong in trying to organize the plant. 9 Lorie, a former liquor salesman , worked as a welder for the respondents for some months and in order to increase his income , edited a plant house-organ for them At the time of the hearing he had returned to his former occupation but continued to issue the house -organ . He testified that he and Leaf w ere in the habit of indulging in heated arguments respecting unions and that Leaf had once made an anti-Semitic remark to him. The remark was a general one and did not concern the respondents . The undersigned is persuaded and finds that Leaf in fact made the remark as testified by Lorie. Since no witness testified to any other such remark by Leaf, how ever, the undersigned believes that the remark uttered by Leaf in the course of one of his wrathy discussions with Lorie, was an exception and not typical of Leaf He so finds. THE WINTER-WEISS CO. 371 During November, Leaf received a notice that he had been reclassified by the draft authorities to 1-A In early December he received a notice to appear for a physical examination and on December 8, he interviewed Respondent Weiss re- specting it. Weiss stated that he was a good worker but would have to stop his union agitation," and on the same day, the respondents again applied for Leaf's deferment. On January 18, 1944, however, Leaf underwent an Army physical examination. He was rejected and when he returned to the plant he found his time card missing, procured it from the timekeeper, punched in and went to work 11 On January 22, Respondent Winter informed Leaf, according to the latter's testimony, that the respondents had determined to let him go, that the plant did not need him, and that he was "too much of a radical agitator." Leaf continued to work in the plant until January 24, when Winter, Martelson having refused to do so because he did not wish to become "involved" in the matter, signed Leaf's release slip. It gave the reason for the discharge as "Slanderous Remarks in regard to deferments of his foremen." Winter gave Leaf that reason for discharging him, denied having earlier said that Leaf was an agitator, and testified that he considered Leaf's remarks about Sloan to have constituted insubordination. The record reveals, and the undersigned finds, that Leaf had theretofore told Foreman Harold Sloan and others in the plant that he deemed it unfair that Sloan, an unmarried man, should be deferred when other employees who were fathers of children 12 were not ; that Sloan, incensed at Leaf's remark and those of others similar to it,13 had demanded to be released by the respondents in order that he might enlist in the Navy but had been prevailed upon by Winter to retain his job because he was more valuable to the war effort in so doing ; and that Sloan took particular exception to Leaf's remarks concerning him. Winter testified that reports of alleged remarks by Leaf derogatory to Weiss and himself had reached him from time to time before he discharged Leaf and that his motive in doing so was partially based thereon He was unable, except for Lorie, to identify the source of any such reports.' As has been found above, the respondents repeatedly told Leaf to cease his union "agitation." Winter's use of the term, no matter what he considered it to embrace, was consistent with the respondents' past reactions to Leaf's activities, 10 Weiss denied telling Leaf to stop his union agitation. Because Weiss had previously told him to stop it, and because, as revealed by the record, Leaf nevertheless continued his concerted activities, there is no reason to believe that he did not do so on the occasion in question The undersigned, from all of the surrounding circumstances, rejects his denial and finds that Weiss spoke to Leaf substantially as the latter testified 11 Rose E. Kirby, chief clerk of Leaf's draft board, in Greeley, Colorado, testified that between January 18 and 25, 1944, a person purporting to speak for the respondents, tele- phoned her, inquired as to Leaf's status, and informed her that the respondents would not "keep him if he does come back." On January 25, she wrote the respondents informing them that Leaf had been rejected. A check of calls made from the respondents' plant re- vealed that no call to his draft board had been made therefrom. The telephone company's records were not produced Since Leaf had clearly not yet returned to the plant at the time of the conversation, the undersigned finds that it took place on January 18 12 Leaf was himself the father of three children. "Employees Cook and Chappel testified that the matter of Sloan deferments was the subject of much speculation in the plant and that "the whole bunch of us was kidding him about it" During the fall of 1943, writing derogatoiy to Sloan because of his draft status appeared on the walls of the plant. An investigation failed to reveal employee responsi- bility therefor with sufficient certainty to warrant imposition of discipline by the respondents 14 As related above, the Leaf statement related by Lorie did not specifically refer to the respondents , or any of them. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and in the light of all the surrounding circumstances, to be expected. The under- signed finds that on January 22, he spoke to Leaf substantially as the latter testified. On January 23 or 24, Leadman Jorgensen told employee Mosher that Leaf was about to be or had been discharged by the respondents on account of his union activities." On the day of and immediately after his discharge, employee Paul Taylor asked Winter if all the employees' jobs were as insecure as that of Leaf. Winter replied that their jobs were as secure as the employees themselves made them, that they were expected to do their work, and to keep their mouths shut " Although Leaf's irritation of Sloan and his anti-Semitic remark are' neither approved nor condoned by the undersigned, he believes that while they may in some degree have motivated the respondents in discharging him, he would not have been dismissed but for his persistent and undeviating union "agitation." It is plain, as revealed by the evidence, that the respondents at all times sought to prevent unionization of the plant and to retain individual, personal relations with their employees. Leaf by his unceasing work to frustrate their desires was necessarily a constant source of pain to them. As union protagonist he pursued his activities openly and with brashness, was articulate respecting his reasons for the necessity of a union in the plant, himself caused the repondents to insti- tute changes both in the plant itself and the working conditions of the employees, and despite their numerous warnings to him to cease doing so, played his role to the end. The undersigned, upon the entire, record in the case, concludes and finds that the respondents have discriminated against Amos Leaf because of his union mem- bership and activity, thereby discouraging membership in the Union, and inter- fering with, restraining, and coercing their 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 respondents set forth in Section III above, occurring in connection with the operations of the respondents set forth in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondents have engaged in and are engaging in certain unfair labor practices, it will be recommended that they cease and de- sist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondents have discriminated in regard to the hire and tenure of employment of Amos Leaf because of his union membership and activities. It will therefore be recommended that the respondents offer him im- mediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges It will be further recommended that the respondents make him whole for any loss of pay he may have suffered by reason of the respondents' discrimination against him by payment to him of a sum of money equal to the amount which he normally would 15 Mosher's undenied testimony. 76 Taylor's undenied testimony. THE WINTER-WEISS CO. 373 have earned as wages from the date of such discrimination to the date of the respondents' offer of reinstatement, less his net earnings" during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONoi usIONs OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers 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 Amos Leaf, thereby discouraging membership in the Union, the respondents have engaged and are engaging in unfair labor practices, within the meaning of Sec- tion 8 (3) of the Act. 3. By interfering with, restraining, and coercing their employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the respondents have en- gaged in and are engaging in unfair labor practices, within the meaning of Sec- tions 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. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondents, H. A. Winter, Adolph Weiss, Maurice Shwayder, Frances Maurine Shwayder Borwick, and W. W. Grant, d/b/a The Winter-Weiss Co., Denver, Colorado, and each of them, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discriminating in regard to the hire and tenure of any of their employees because of their membership in or activities on behalf of International Union, United Automobile, Aircraft and Agricultural Implement Workers, affiliated with the Congress of Industrial Organizations ; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers 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 purposes, of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Amos Leaf immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges ; 17 By "net earnings" Is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful dis- charge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Jotiners of America, Lumber and Sawmill Workers Union, Local f590, 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. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make whole said Amos Leaf for any loss of pay he may have suffered by reason of the respondents' discrimination against him, in the manner set forth in the Section entitled "The remedy," above ; (c) Post immediately in conspicuous places throughout their Denver, Colorado, plant, and maintain for a period of not less than sixty (60) consecutive days, notices to their employees stating: (1) that the respondents will not engage in the conduct from which it is recommended that they cease and desist in para- graphs 1 (a) and (b) hereof; (2) that the respondents will take the affirmative action and set forth in paragraphs 2 (a) and (b) hereof; and (3) that the respondents' employees are free to become and remain members of International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, and that the • respondents' employees are free to become and remain members of International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, and that the respondents will not discriminate against any employee because of his membership in or activity on behalf of that organization ; ° (d) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondents have taken to comply therewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report the respondents notify said Regional Director in writing that they will comply with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring the respondents to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 26, 1943, 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 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 transferring the case to the Board. JOSEF L. HEITOEN, Dated October 18, 1944. Trial Examiner.