American Steel Foundries

In the Matter Of AMERICAN STEEL FOUNDRIES, INDIANA HARBOR WORKS and FOREMAN'S ASSOCIATION OF AMERICA, CHAPTER 57, UNAFFILIATED Case No. 13-C-2294.-Decided April 4, 1946 DECISION AND ORDER On December 30, 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 recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. On September 25, 1945, the Board heard oral argument at Washington, D. C. The respondent and the Union were represented and participated in the argument. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's exceptions and brief, the contentions advanced at the oral argument before the Board, and the entire record in the case, and hereby. adopts the findings, conclusions, and recommendations of the Trial Examiner, with the additions hereinafter set forth. We find, as did the Trial Examiner, that in discharging Carmen Tamburo and Everett Nansen, the respondent violated Section 8 (3) and (1) of the Act. In so finding, we rely upon all the findings of the Trial Examiner and all the circumstances revealed in the record, including in particular the circumstances mentioned below. Like the Trial Examiner, we are not persuaded by the reasons offered by the respondent for the discharges. The instances of ineffi- ciency on the part of Tamburo and Nansen, which were advanced by the respondent, were not considered of a serious nature at the time of 67 N. L. R B, No. 2. 27 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their occurrence, or of a type which would warrant discharge.' Tam- buro and Nansen were satisfactory employees, each having been in the respondent's employ for a number of years and having received promotions during that time. Tamburo had served as foreman for over 2 years at the time of his discharge; and Nansen for over 1 year. Tamburo's alleged violation of company policy in speaking at a union meeting of rank and file employees and Nansen's alleged insubordina- tion in presenting a grievance of the Union, reasons advanced by the respondent as the immediate causes of the discharges, were not, we are convinced, the motivating reasons for the respondent's action, but were pretexts seized upon by the respondent to rid itself of Tamburo and Nansen because of their membership and activity in the Union.' In the case of Tamburo, upon a meagre report that Tamburo had spoken at a union meeting of production and maintenance employees, the respondent, without investigation of the situation, immediately summoned Tamburo from his home and discharged him, without affording him an opportunity to explain or describe the circumstances connected with his presence at the meeting. Although the respondent contends that Tamburo's conduct in speaking at the union meeting violated "company policy," it is plain, as found by the Trial Exam- iner, that the respondent had not promulgated any formal plant rule prohibiting such conduct, nor had it otherwise informed Tamburo 'Discussing at length the respondent 's contention that Nansen 's unauthorized promotion of employee Conlin entered into its decision to discharge Nansen, our dissenting colleague rejects the Trial Examiner's conclusions with respect to this contention and his findings of credibility as to Works Auditor McKnight . We agree with the Trial Examiner's conclusions and resolutions of credibility in this respect, and find that the circumstances surrounding the promotion of Conlin occurred substantially as testified to by Nansen . Irrespective of the precise details of Conlin's promotion, however, we are convinced that this incident was not a motivating factor in Nansen's discharge . Although the respondent ordered the return of Conlin to his former non-supervisory duties when his name was seen by McKnight listed as a supervisor, it took no steps at that time to discipline Nansen for making the promotion. Approximately a month elapsed between the return of Conlin to his rank and file status and the discharge of Nansen . During that period the respondent applied, for an occupational deferment from military service for Nansen, and announced to a meeting of all employees in the timekeeping department that Nansen would be with the respondent "six months or more " We are satisfied that Nansen 's action in promoting Conlin was not a motivating factor in his discharge. 2 The dissenting opinion states that "In order to warrant a 'pretext' finding , there must be some evidence in the record that other employees had violated the same rules and regulations a3 the dischargees and that their actions had been condoned or forgiven ." Although we have found that disparity In the treatment of discharged employees and other employees engaging in like conduct is convincing indication that the conduct complained of by the employer is a mere pretext for the discharge , we have also found , in the absence of any showing of disparate treatment , that other facts may denote pretext . See, for example, Matter of Platte Valley Telephone Corporation, 44 N. L R. B 632 , Matter of 0. G Harp Poultry and Egg Company, 46 N. L. R. B 1129 , enf'd 138 F . ( 2d) 546 ( C C. A. 10) where the reason advanced for the discharge was the violation of company rules and regulations) ; Matter of Franque A Dickins, et at., 64 N. L. It. B. 797 ; Matter of Western Cartridge Com- pany, 44 N L R B 1, enf'd 134 F. ( 2d) 240 (C. C. A. 7) ; Matter of John Day Jackson, 42 N. L. It. B. 356; Matter of hickory Chair Mfg Co., 41 N. L R B . 288, enf'd 131 F. (2d) 849 (C. C. A. 4 ) ( where the reason advanced for the discharge was conduct other than the violation of company rules and regulations) AMERICAN STEEL FOUNDRIES 29 of , any such policy 3 In the case of Nansen, the respondent chose to regard the presentation of a grievance by Nansen, as representative of the Union, as insubordination and grounds for discharge.4 In neither case did the respondent offer any reason for its action at the time of the discharge. When Nansen asked why he was being dis- charged, he was told by Works Auditor- McKnight, "We have no. reason." 6 When Tamburo inquired if, upon his discharge as a fore- man, he was to return to his previous non-supervisory position, he was In stating that he finds our reasoning in this respect unconvincing , our dissenting colleague appears to misconceive the rationale of our decision . Contrary to his statement, we have not found that Tamburo was discharged for his appearance and speech before the rank-and-file union. We have found, rather, that this. incident was seized upon as a pretext by the respondent for ridding itself of Tamburo because of his outstanding union member- ship and activity. Although a policy of neutrality in accordance with the duties imposed by the Act is presumptively an inherent part of an employer 's labor policy which he may enforce in an appropriate manner, our view is that in discharging Tamburo the respondent was not acting in effectuation of such a policy, but in an attempt to defeat the organization of its superasory employees contrary to the duties imposed by the Act. The 'respondent's failure before Tamburo's speech to formulate a plant rule concerning neutrality and its failure to inform its foremen who had daily contact with rank and file employees of its policy are among the factors which convince us that the respondent was not motivated by a desire to enforce its alleged neutrality when it discharged Tamburo. 4 The facts concerning this 'grievance are as follows : Leo Slankowski, a member of the Union, was einployed as a minor supervisor in the timekeeping department of which Nansen wsts the IieSC : Early in November-1943, he•and+ other minor supervisory employees in-the timekeeping department protested to the Union that their seniority had been disregarded by management in the appointment by Works Auditor McKnight of Walter Johnson, who had been working in the storeroom , to a position above them as an assistant to Nansen. The record does not reveal whether Johnson's former duties in.the storeroom were supervisory or non-supervisory or whether he was a member of either the foremen's union or the rank- and-file union. The Union considered the complaints presented and voted to prosecute a grievance in behalf of Slankowski, the minor supervisor who had the greatest amount of experience add seniority. Nansen was selected by the Union to present the grievance to management:; Our dissenting colleague apparently considers that 'Nansen's actions asthe Union 's,repre, sentative in presenting Siankowski 's grievance was a breach of his duty as a foreman to management, and that the Union's prosecution of the grievance was an invasion of manage- ment's prerogative. We do not agree with these views. There is nothing in the record to indicate that Nansen's actions in connection with the Slankowski grievance were disloyal to management. When Nansen, in his supervisory capacity, was first informed by his superior, McKnight, that management was considering the appointment of Johnson , prior to the complaint made to the Union,by the minor supervisors, he requested time to investigate Johnson's qualifications. He later reported that he considered Johnson's appointment unsatisfactory and suggested that either Slankowski or Coughlin, who had also been serving in the timekeeping department as a minor supervisor, be appointed assistant and Johnson be given 'a position of less authority in the department . When 'Nansen appeared before McKnight with,.lapkowsict'to discuss, the Uilion's grievance, he was acting as a,representa- tive of the Udion, bargaining with management concerning conditions of employment of a fellow-employee in the foremen's group, and it is clear that McKnight knew that Nansen spoke as a representative of the Union. We are of the opinion that grievances which arise in connection with the filling of positions to which supervisory employees are eligible concern their own conditions of work as employees, and we therefore conclude that Nansen's presentation of the Slankowski grievance on behalf of the Union was conduct protected by the Act. 5The Trial Examiner, although finding that McKnight refused to give Nansen a reason for his discharge,,does not quote this specific statement. It is based upon the credible testi- mony of Nansen. McKnight corroborated Nansen's testimony; stating that when Nansen asked for, a.regson, "I stated that I would give him no reason , We had no ,further use for his services." 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told by Assistant Works Manager McCullough, "We don't want you present at all in the plant." 6 We feel that the real reason for the discharge of Tamburo and Nansen is reflected in a statement made by Supervisor Quinn, the supervisor directly under Assistant Works Manager McCullough, to Tamburo on the day following the discharges. Quinn at that time stated, "I am sorry what happened ... I don't know anything about it, but here is the point. The foremen organize a union in there, and someone is supposed to take the rap, and you are the guinea pig .. . You know if you have a machine shop and you spent $10,000 and some one tell you what to do or not to do, you do the same thing." 7 That the respondent was opposed to the organization of its supervisory employees is clear from its rebuff to the Union's attempts to present a request for recognition and a grievance in behalf of one of its mem- bers. Tamburo and Nansen were leaders-in the supervisory organi- zation. Nansen, a steward for the Union, attempted on November 9, 1943, to present to management the first grievance prosecuted by the Union. Tamburo, as chairman of the Union's negotiating com- mittee, on October 11, 1943, presented the Union's request for recog- nition. On November 9, 1943, after Nansen's unsuccessful effort to present the Union's first grievance, Tamburo endeavored to confer with management concerning the grievance. After his attempt had also been rejected, Tamburo inquired the following day as to whether the respondent "had changed its mind." Later the same day Tamburo informed management that on the next day, November 11, the fore- men in the plant would call upon Works Manager Porter in a body and demand a conference. Tamburo had suggested that "it would be a good policy for Mr. Porter to be on hand so maybe we can avoid a lot of troubles." Tamburo's discharge occurred on November 11, immediately preceding the appearance of most of the respondent's foremen at Porter's office in accordance with Tamburo's announce- ment of the previous day. Nansen's discharge occurred immediately after the foremen's appearance. The precipitate discharge of two of the Union's most outspoken protagonists on the day selected by the Union for a mass demand for recognition from the respondent, which had previously demonstrated its antagonism toward the Union, could not fail to discourage union membership and activity. We are con- vinced that the respondent sought by the discharge of Tamburo and 6 This statement , not referred to in the Intermediate Report, is based upon the testimony of Tamburo , whom we, like the Trial Examiner , find to be a credible witness. McCullough admitted that at the time of the discharge , he told Tamburo that "his services were no longer required . . . either as a foreman or as a workman." ' The Trial Examiner does not refer to this statement of Quinn. Tamburo testified that Quinn made the statement on November 12 as Tamburo and Nansen entered a bowling alley Nansen corroborated Tamburo's testimony Quinn did not appear as a witness. We find that Quinn made the statement substantially as testified to by Tambuio and Nansen. AMERICAN STEEL FOUNDRIES 31 Nansen to deprive the Union of leadership and to rid itself of union organization among its supervisory employees. Accordingly, we find, as did the Trial Examiner, that by its discharge of Carmen Tamburo and Everett Nansen on November 11, 1943, and its failure thereafter to reinstate then, the respondent discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the Union for a mass demand for recognition from the respondent, which in the exercise of the rights guaranteed by the Act. The Remedy* Having found that the respondent has engaged in certain unfair labor practices, we shall order the respondent to cease and desist there- from and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the respondent discriminatorily discharged Tamburo and Nansen on November 11, 1943, we shall order the re- spondent to reinstate them with back pay .s It appears that following his discharge Tamburo did not register for employment with the United States Employment Service until June 1944, and prior to his registration made only one attempt to obtain employment. We are of the opinion that Tamburo did not make the kind of effort to obtain other employment which a discharged employee may reasonably be expected to make. His loss of earnings between the date of his discharge and the date that he registered with the United States Employment Service is therefore found to have been a type of loss for which the respondent should not and will not be directed to reimburse him.9 We shall accordingly order the respondent to offer Carmen Tamburo immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges, and to make him whole for any loss of pay he has suffered or may suffer by reason of the 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 he registered with the United States Employment Service to the date of the respondent's offer of reinstatement, less his net earn- ings 10 during such period. On June 7, 1946, the Board modified this section of its Decision and Order in an Order Amending Decision and Order and Denying Petition for Reconsideration, 68 N L R. B 514. * The respondent points out that there was a delay of several months between the com- mission of the unfair labor practices found herein and the issuance of a complaint. We are of the opinion, however, that this delay does not warrant any change in our customary back- pay order. See Matter of Cowell Portland Cement Co , 40 N L R B. 652, 703, enf'd as mod 148 F. (2d) 237 (C C A 9) ; Matter of Republic Steel Corporation , 62 N L R B 1008 ° See Matter of Ohio Public Service Company , 52 N L R. B 725, Matter of Union-Buffalo Mills Company, 58 N. L. R. B. 384, 391. 10 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- 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to Nansen, it appears that since his discharge he has entered the armed forces of the United States. If Nansen has since been discharged from said armed forces, we shall order the respondent to offer Nansen immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges." We shall also order the respondent to make Nansen whole for any loss of earnings he has suffered or may suffer by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount he normally would have earned as wages during the periods (1) from the date of the respondent's discrimination against him to the date of his entry into the armed forces of the United States, and (2) from the date of his discharge from the armed forces of the United States to the date of the offer of reinstatement by the respondent, less his net earnings during these periods. If Nansen has not been discharged from the armed forces of the United States, we shall order the respondent, upon application by Nansen within ninety (90) days after his discharge from said armed forces, to offer him immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges. We shall also order the respondent to make Nansen whole for any loss of earnings he has suffered or may suffer 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) from the date of the respondent's discrimination against him to the date of his entry into the armed forces of the United States, and (2) from a date five (5) days after his timely application for reinstatement, if any, to the date of the offer of reinstatement by the respondent, less his net earnings during these periods.12 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, American Steel Foundries, 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, 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 earn- ings. See Republic Steel Corporation v N. L. R B , 387 U S 7 11 If, at the time of the respondent's offer of reinstatement less than 90 days have elapsed since Nansen's discharge from the armed forces, the respondent shall hold its offer of rein- statement open for a reasonable period, but in any event not less than the remainder of the 90-day period following Nansen's discharge from the armed forces. la The fact that Nansen may become entitled to additional back pay following timely application for reinstatement upon discharge from the armed forces of the United States shall not affect the respondent's obligation to pay him immediately whatever amount is due him for the period from the date of the respondent's discrimination against him to the date of his entry into the armed forces. Matter of The American Laundry Machinery Company, 45 N. L R. B 355, enforced 138 F. (2d) 889 (C. C. A. 2). AMERICAN STEEL FOUNDRIES 33 Indiana Harbor Works, Indiana Harbor, Indiana, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Foreman's Association of Amer- ica, by discharging any of its supervisory employees, or by discrimi- nating in any other manner in regard to their hire or tenure of em- ployment or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its supervisory employees in the exercise of the right to self-organize- tion, to form, join, assist, or bargain collectively through Foreman's Association of America, and to engage in concerted activities for the purposes of 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 Carmen Tamburo immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority and other rights and privileges; (b) Offer Everett Nansen reinstatement in the manner set forth in the section of the Decision and Order entitled "The Remedy" ; (c) Make whole Carmen Tainburo and Everett Nansen for any, loss of pay they have suffered or may suffer by reason of the respond- ent's discrimination against them, in the manner set forth in the sec- tion of the Decision and Order entitled "The Remedy"; (d) Post at its plant at Indiana Harbor, Indiana, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the respondent's representatives, be posted by the respondent immediately upon receipt thereof, and main- tained by it for sixty (60) consecutive days thereafter, in conspicuous places, 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; and (e) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what stets the respondent has taken to comply herewith. MR. GERARD D. REILLY, dissenting : This case clearly illustrates the difficulty of attempting to separate the management and employee functions of supervisory employees. In the decision in the Packard case 13 the majority stressed the facts that no divisions of loyalties arise in the event of a foreman's bar-- 13 Matter of Packard Motor Car Company, 61 N L R B 4 6 9 2 148-46-vol 67-4 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining with his employer as to his own wages, hours, and working conditions, and that employers were not deprived of the right to use their normal disciplinary methods in dealing with disloyal or in- efficient employees. In the case before us are two problems which were considered and rejected by the majority in the Packard case. The first involves active participation and support of the concerted activities of the rank and file by the foreman's union. The second is concerned with the problem of "supervising the supervisors" in case of conflict of views or interests between supervisors. The Board has found that Tamburo was discharged for his appear- ance and speech before the rank and file union when that union was on strike; that he was given no opportunity to explain the circum- stances surrounding his actions, and, that no independent investiga- tion was made of the matter. With these findings I agree. The re- 'spondent contended that this action by Tamburo violated its "policy." The majority has found that there had never been a formal promulga- tion of such a policy nor had Tamburo ever been informed of it and apparently finds an element of discrimination in this fact. I find this reasoning of the majority to be unconvincing. The Act imposes upon an employer a duty to refrain from interference in, or domination of, a labor organization of its employees and we have, since the beginning of our enforcement of the Act, imputed to employers the responsibility for acts violative of this duty committed by supervisors. Such a "company policy" we have therefore found to be inherent in every employer's labor policy, requiring no promulgation, publication or explanation. Tamburo's rights in these circumstances must be de- termined from his position as a supervisory employee of the company and not his position as an officer of a brother labor organization. In his status as a supervisory employee the company was responsible for his acts and utterances and Tamburo's actions placed the com- pany in jeopardy. As the Board pointed out in the Soss. case 14 "the right under the Act of supervisors to protection in their organizational and other concerted activities is not an unqualified one, but is sub- ordinate to the organizational rights and freedom of rank and file employees, and to the need of an employer to maintain his neutrality." Tamburo clearly trespassed upon both of the areas proscribed by the Board above. It is immaterial what Tamburo said to the rank and file or what course of action he advocated for them. Any interference in their activities clearly exceeded the bounds of permissible super- visory collective activity contemplated by the Board in granting the protection of the Act to labor organizations composed of supervisors and did not concern "his own wages, hours, and conditions of work." V 14 Matter of Soaa Manufacturing Company, et al, 56 N L. R B 348. AMERICAN STEEL FOUNDRIES 35 The discharge of Nansen was found by the majority to have been made because Nansen sought to present a grievance on behalf of the foremen's union . The grievance consisted of a protest against the promotion of a member of the rank and file to supervisory level in preference to the candidate of the foremen who was a minor super- visor. The respondent refused to discuss the matter with Nansen, and when Nansen appeared with the foremen's unsuccessful candidate to question the respondent's promotion and the respondent's reasons for making it,.he was discharged on grounds of insubordination. Assuming, arguendo, the Board's argument in the Packard case that supervisory employees are entitled to the protection of the Act in organizing and bargaining collectively upon their own wages, hours, and working conditions, I find nowhere in that decision either im- plicitly or explicitly a duty incumbent upon the employer to bargain with the supervisor concerning the elevation of employees from the rank and file to positions in the supervisory hierarchy. 15 We have not as yet issued a decision finding a violation of Section 8 (5) upon the refusal of an employer to bargain with a rank and file union concern- ing the elevation of one of its members to supervisory status and the instant case is more than remotely analogous. We have in fact en- deavored to limit the sphere of proper collective bargaining and to reserve to management's sole discretion those things which are in- herently in his domain. This case is clearly an instance of an invasion of a management prerogative. In any event, Nansen exceeded the bounds of discretion when he invited the unsuccessful candidate into his supervisor's office to hear a discussion of difference between two supervisory employees. The respondent additionally contends that Nansen's promotion of an employee, Conlin, to a supervisory position without permission or authority so to do was an element in its decision to make the discharge. 'a As is shown by the argument of counsel for the Union, the implied premise of the Union was that membership in the Association should properly be considered a factor by u, fellow member in making a reconsideration for promotion. It was the contention of the Union that such membership, other things being equal, would be a determinative factor m foremen's recommendation in selections for advancement. Mr. REILLY. . . . Now if he made these recommendations for Slankowski and Conlin because they were Union men , that would be improper , would it not? Mr. NELSON . If that is the only reason, yes, it would be improper And the Asso- ciation would not countenance a recommendation of men for a position solely by reason of membership in the Association if there was a better-prepared man available for the Job. If they were equal , we would favor the Association man, and we would argue that our men were as well prepared as those proposed by the employer we actually, in practice, have no difficulty with that situation Mr. REILLY. . . . What I am getting at here concerns this man making recom- mendations in his capacity as timekeeper Now, it is reasonable that he will select those . . from the people that belong to the same organization? Mr NELSON. That is common enough, isn't it? For many veasons that would be done outside of the Association-maybe church , lodge, or whatnot. There are man reasons winch dispose men to cast their vote or preference for certain individuals, we wili'sa^, a gainst other egnall' piepa+ed mmii. 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The majority, in adopting the Trial Examiner's conclusions as to this incident, has reached a result in which I cannot concur. The record shows that Nansen had been informed by McKnight that he had no authority to make promotions without specific author- ization. Nansen testified that he suggested the promotion of Conlin to McKnight in July of 1943 and from the tenor of the conversation deduced that McKnight had no objections and that about a week later McKnight questioned his action in making the promotion but did not order rescission of the action. McKnight on the other hand testified that he had not talked with Nansen about the promotion in July and that his first knowledge of the promotion was on October 15, 1943, when he saw Conlin's name as a supervisor on a list of employees and that he at once ordered his return to rank and file status. The collateral facts surrounding this incident persuade inc of the essential truth of McKnight's testimony. Nansen himself testified that his authority to make promotions was limited to cases where specific approval had been obtained. Even his own version of the events reveals that no such permission was ever obtained. Further, although Nansen made the promotion in mid-July, he made no effort to secure a raise for Conlin or notify the pay-roll office that an increase was due. Finally it is shown that McKnight ordered the return of Conlin to his former duties immediately upon discovering the attempted promotion. The sole support for Nansen's version of the series of events is the fact that Conlin filled his new position for about 3 months. There is no evidence, however, that McKnight knew of this change in status or that he had reason to learn of it. Conlin did not work on Mc- Knight's shift and occupied a position so low in the hierarchy that nothing evidencing a change in his status would be obvious to a casual observer. The majority has also found that the reasons advanced for the dis- charges of Tamburo and Nansen were pretexts. It is not apparent from either the record or the decision that this is indeed the fact. In order to warrant a "pretext" finding, there must be some evidence in the record that other employees had violated the same rules and regu- lations as the dischargees and that their actions had been condoned or forgiven. In this case there is no indication that other employees had similarly violated company policy or practices 16 The record and the decision indicate that the respondent clearly stated its reasons for the discharges at the hearing. Whether or not Nansen's action could be classified as insubordination or merely bad judgment is a matter of semantics rather than a problem of law. The Board was fully in It is true that one Hughes accompanied Tamburo to the rank and file union meeting but there is no evidence to indicate that the Company had been informed of that fact. AMERICAN STEEL FOUNDRIES 37 acquainted with what the respondent, in this instance, considered to constitute the insubordination. Although I have disagreed with the majority, view that foremen are entitled to the protection of the Act in organizing and bargaining collectively, I think it is incumbent on those who hold other views to require a rigid standard of separation and insulation of foremen, from their subordinates. The decision of the majority in this case has, in my opinion, let down the bars between the groups and rendered the implied promise of such separation and insulation in the Packard case meaningless in view of the derelictions from duty on the part of fore- men which the record in this case shows. In view of the foregoing I would not find the discharges of Nansen and Tamburo violative of Section 8 (3) of the Act. 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 employees that : We will not in any manner interfere with, restrain, or coerce our supervisory employees in the exercise of their right to self- organization, to form, join, assist, or bargain collectively through Foreman's Association of America, 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 suffered as a result of the discrimination. Carmen Tamburo Everett Nansen All our supervisory employees are free to become or remain members of the above-named union. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any supervisory employee because of membership in or activity on behalf of said labor organization. AMERICAN STEEL FOUNDRIES, INDIANA HARBOR WORKS, 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 r,-instatement upon application in accordance with the Selective Service Act after discharge from the armed forces. 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Russell Packard, for the Board. Pope and Ballard , by Messrs. Ernest S. Ballard and W. McNeil Kennedy, of Chicago, 111, for the respondent. Mr. Fred L Willsams, of Gary, Ind., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on January 8, 1944, by Foreman's Associa- tion of America, Chapter 57, herein called the Union, the National Labor Rela- tions Board, herein called the Board, by its Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated August 29, 1944, against American Steel Foundries, Indiana Harbor Works, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing thereon, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in substance, that the respondent on or about November 11, 1943, discharged Carmen Tamburo and Everett Nansen, for the reason that they joined and assisted the Union and engaged in concerted activities with other employees of the respondent for the purposes of collective bargaining and other mutual aid or protection. On September 2, 1944, the respondent filed an answer 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 September 14 to 19, 1944, at Chicago, Illinois before Horace A Ruckel, the undersigned 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 an organizer Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues were afforded all parties At the close of the hearing the undersigned granted a motion by counsel for the Board to conform the pleadings to the proof with respect to formal matters, and advised the parties 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 None of the parties argued orally. On October 3 and 5, 1944, the respondent and the Board, respectively, filed briefs Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The respondent is a New Jersey corporation, licensed to do business in the State of Indiana, where it operates a plant at Indiana Harbor. It is engaged in the manufacture of miscellaneous steel castings The principal materials used by the respondent consist of steel, iron, and coal. During the year 1943, the value of such materials was in excess of $1,000,000, of which amount more than 50 percent was shipped to the respondent from points outside the State of Indiana. During the same period, the value of the respondent's finished AMERICAN STEEL FOUNDRIES 39 products was in excess of $1,000,000 , of which more than 50 percent was sold and delivered to points outside the State of Indiana. H THE ORGANIZATION INVOLVED Foreman's Association of America , Chapter 57, is a labor organization ad- mitting to membership supervisory employees of the respondent. It is affiliated with the Foreman's Association of America. III. THE UNFAIR LAROE PRACTICES A The discharges 1. Carmen Tamburo Tamburo first started to work for the respondent during the latter part of 1921, as a laborer in the chipping room. In 1924 he was promoted to chipping work, which he continued to do until 1926, when he left the respondent's employ, returning in 1984. In July 1941, he was made a foreman. In July 1942, be was promoted to instruction supervisor at $54 per week, and in July 1943, be- came unit foreman at the same salary. He held this position at the time of his discharge on November 11, 1943. In 1937, while Tamburo was working as a chipper, Local 1206 of the Steel Workers Organizing Committee, affiliated with the C. I. 0, was organized in the respondent's plant, and Tamburo was elected president. He resigned his membership in July 1941,1 when he became a foreman. During the summer of 1943, the respondent's supervisory employees began or- ganizing, and on October 10 of that year the Union was formed at a meeting at, which approximately 30 foremen were present 2 Tamburo was elected chair- man of the negotiating committee composed of five members, one of whom was Harley Conlin, a foreman in the time department On October 11, Tamburo and Conlin met with John Porter and Arthur McCullough, works manager and assistant works manager, respectively. Tainburo stated that a majority of the supervisory employees belonged to the Union and requested a meeting between representatives of the respondent and the Union to discuss recognition of the latter as bargaining representative of the supervisory employees. Porter re- plied that it would be necessary for him to refer the matter to his superiors, at Chicago, and promised to communicate with Talnburo on October 15. On Sun- (lay, October 17, no word having been received from Porter, the Union held a meeting as the result of which, on the following day, a letter was sent the re- spondent requesting a conference. Subsequently, a resolution of similar purport signed by approximately 78 supervisory employees, was presented the respondent. On November 9, Jack MemmDger, president of the Union, and Everett Nansen, a member of the grievance committee, and chief departmental clerk 3 in the time department, requested Tamburo to take up with management the grievance of Leo Slankowski, an employee in the time department, which had previously been presented to the respondent by Nansen, and rejected.' Tamburo called on McCullough during the day of November 9. McCullough asked Tamburo if he represented the Union, and when Tamburo replied that such was the case, I The respondent signed a contract with Local 1206 in 1937 covering its production and maintenance employees This contract, or a renewal thereof , was in effect at the time of the events herein complained of 2 The charter was issued on October 4, 1943. 3 Also referred to in the record as chief shop clerk. 4 The Union claimed that the respondent had violated its seniority policy in appointing Walter Johnson, rather than Slankowski , to a position as assistant to Nansen. The part played by Nansen in attempting to promote Slankowski to this position , and its connection with Nausea 's discharge, is hereinafter discussed. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McCullough stated, in substance, that the respondent would not recognize the Union, and would not discuss Slankowski's grievance. On the following day, November 10, Tamburo met McCullough in the employment office and asked him if the respondent had changed its mind with respect to meeting with the Union's committee. McCullough replied that his previous refusal was "final." Later that day Tamburo, on Menninger's instructions, 'phoned Porter and informed his secretary that on the following day, at 3 p. in. the foremen would call upon Porter in a body to demand a conference to discuss union recognition. Tamburo added that it would be "good policy" for Porter to be present and that it would avoid "trouble." On November 11, shortly after 1 p. in., while at home, Tamburo was sum- moned to the plant where he arrived about 2 p. in. He was referred to McCul- lough who informed Tamburo that he was discharged. McCullough admitted, while testifying, that he gave Tamburo no reason for terminating his employ- ment. At 3 p. in., between shifts, in accordance with Tamburo's 'phone message to Porter the previous day, a group of approximately 50 foremen gathered outside Porter's office. Porter admitted Menninger to his office where, in response to an inquiry by Menninger as to why Tamburo had been discharged, and to his request for a meeting to discuss recognition of the Union, Porter told Menninger that Tamburo's discharge was no concern of the Union, and repeated that the respondent would not meet with its representatives On the same day the respondent replied to the Union's letter of October 18, stating that it would not recognize the Union until it had been certified by the appropriate Government agency. The respondent bases its defense to Tamburo's discharge principally upon an incident which occurred on November 7, four days previous thereto. On November 3, the respondent's non-supervisory employees went on strike and the plant was shut down! On Sunday, November 7, the Union and Local 1206 held separate meetings. At the Union's meeting Tamburo, who had been presi- dent of Local 1206 before becoming a foreman, was delegated together with Leonard Hayes, another foreman, to appear before the meeting of Local 1206 and was instructed to assure the striking members of that organization that the foremen would not take their jobs as production workers, and to urge them to return to work. Tamburo and Hayes forthwith appeared before the meeting of Local 1206 where Tamburo, according to his own testimony, supported by that of Hayes, delivered the Union's message in accordance with his instructions." 5 The circumstances surrounding the strike are not revealed by the record. "Although the respondent's answer and brief allege that Tamburo was discharged for "inefficiency and insubordination," no evidence of insubordination was adduced at the hearing. There is evidence that Tamburo's transfer in July 1942, from his job as a production foreman to one as an instruction foreman, was occasioned by friction between Tamburo and the employees under his direction McCullough, who took over his duties as assistant works manager in June 1943, testified that he was first informed of the circumstances surrounding Tamburo's transfer during the first part of November, and did not verify it by reference to Tamburo's personnel record until after the latter's discharge. There is also evidence that after McCullough's taking over as assistant works manager, Baker, Tamburo's superior, and Quinn, another super- visor, on several occasions complained that Tamburo had difficulty in getting along with his nien. McCullough admitted, however, that he did not talk with Tamburo concerning these complaints, and there is no evidence that McCullough or Porter discussed them at the time that they determined to discharge Tamburo. That the principal reason alleged for Tamburo's discharge was his appearance before Local 1206, is shown by the testimony of Porter Q Now, you say the discharge of Tamburo was because lie attended this meeting of 1206 and expressed himself there, is that correct? A. Yes AMERICAN STEEL FOUNDRIES 41 Tamburo's presence at this meeting was reported to Porter, according to the latter's testimony which the undersigned accepts as true, on the morning of November 11 The information conveyed to Porter was merely that Tamburo had promised the strikers "support." He was not informed that Tamburo had, in addition, urged them to return to work Upon receiving this information, and admittedly without further investigation and without asking Tamburo concerning his presence at the meeting, Porter conferred with McCullough, and the decision was made to discharge Tamburo. 2 Everett Nansen Nansen first came to work for the respondent in October 1939, as a time study employee in the time department. In 1942 he was promoted to chief depart- mental clerk under the supervision of W. R. McKnight, works auditor, a position which he retained until his discharge on November 11, 1943, along with Tamburo. Nansen joined the Union in September 1943, and was named steward for the accounting department The first grievance filed with the Union after its formation originated in the time department and had to do with the promotion of Walter Johnson, in prefer- ence to Slankowski, to the position of assistant to Nansen As has been related, the Union, through Nansen, attempted to obtain a meeting with management to discuss this grievance. When lie failed, the grievance was referred to Tam- buro, who was similarly unsuccessful. The circumstances giving rise to this grievance, which culminated in Nansen's own discharge, are hereinafter set forth. Nansen, who worked on the day shift, had under him three employees, Conlin,' Coughlin, and Slankowski, who worked on different shifts, and whose duties included some measure of supervision over the time clerks on each of the three shifts During the latter part of October or the first of November, McKnight called Nansen to his office and told him that he was appointing Walter Johnson, from another department, as an assistant to Nansen. Nansen agreed that he needed an assistant, but asked McKnight for time in which to investigate John- son's qualifications, and McKnight consented. Later the same day, or on the following day, Nansen reported to McKnight that Johnson was not satisfactory to him, and suggested that Coughlin or S]ankowski be given the promotion. McKnight, however, insisted on Johnson, and the latter's appointment was an- nounced at a departmental meeting on November 6 On the following day, November 7, at a meeting of the Union, President Men- ninger raised the question of the promotion of Johnson in preference to Slan- kowski, and it was voted to take the matter up with management as a grievance. Accordingly, Nansen was instructed to present the grievance to McKnight. Nansen, accompanied by Slankowski, saw McKnight on November 9 McKnight testified as follows with respect to his conversation with Nansen : Q. That was the reason for his discharge? A. That is right. As well as by the testimony of McCullough : Q Now, so far as speaking at the C I O. meeting , that was the matter which raised the matter of his discharge , isn't it? A. That was the immediate incident, yes Q If that had not come up you would not have considered these other com- plaints sufficient to discharge him, would you? A. No. 7 The controversial status of Conlin , and the circumstances surrounds ng his appointment by Nansen. are hereinafter discussed 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. What was said about the Foreman's Association at that time? A. As I recall the conversation Nansen and Slankowski came in and sat down. Nansen said, "The Foreman's Association wants to know why you didn't give preference to Slankowski over Johnson?" Q. What did you say, sir? A. I said, "Are you speaking as the representative of the Foreman's Association?" Q. Go ahead, give us the conversation. A. He said, "Yes." I said, "I have no dealings with the Foreman's Associ- ation and I won't talk to you any further." Q Is that all? A That ended the conversation. That noon, at a meeting of department stewards, it was decided to ask Tam- buro, as chairman of the Union's negotiating committee, to present the grievance to McCullough. As has been stated previously in the discussion of Tamburo's discharge, Tamburo met with McCullough later that day, only to be told what McKnight had told Nansen, namely that the respondent would not discuss the grievance and that the respondent did not recognize the Union The gathering of approximately 50 foremen in front of Porter's office at 3 p. m. on November 11, in another attempt to discuss recognition of the Union, has previously been described. As has been found, Tamburo was discharged imme- diately prior to the gathering. Immediately after the gathering had dispersed, McKnight called Nansen to his office and told him that he, too, was discharged. When asked by Nansen the reason for his discharge, McKnight refused to give one. Johnson immediately took Nansen's place as chief departmental clerk. Nansen entered the armed services of the United States on March 16, 1944. At the hearing McKnight testified as follows concerning his reasons for dis- charging Nansen : Q. Why did you discharge Mr. Nansen? A. I discharged Mr. Nansen because of the numerous occasions in which he had refused to follow orders and the cases in which lie acted contrary to my instructions. Q. Was there any immediate incident that led to his discharge? A. Yes The immediate cause of his discharge was his coming to my office on Tuesday, the 9th, with Leo Slankowski and questioning my au, thority to appoint someone under his supervision. The respondent defends its discharge of Nansen on the grounds of inefficiency and insubordination . In support of its defense it relies on Nansen's promotion of Conlin to the position of shop clerk on the night shift, allegedly without McKnight's approval. The circumstances surrounding Conlin's promotion and his subsequent demotion by McKnight were as follows: In July 1943, according to Nansen's testimony, Nansen suggested to McKnight that a position as shop clerk, or shift supervisor, should be created on the night shift, and suggested Conlin, a timekeeper, for the job. McKnight, according to Nansen, agreed to this suggestion and to Nansen's naming of Conlin. About a week later, McKnight asked Nansen why he had promoted Conlin to this posi- tion, stating that Nansen had done so without his, McKnight's, permission. Nansen replied that he had understood from his previous conversation with McKnight that this permission had been given. McKnight, although admitting that he had on various occasions discussed with Nansen the qualifications of Conlin and other employees, denied having any conversation with Nansen specifically concerning the promotion of Conlin until October 15. The undersigned credits Nansen's testimony on this point as AMERICAN STEEL FOUNDRIES 43 against that of McKnight, and finds the facts to be as set forth above He further finds, however, that McKnight did not authorize the promotion of Conlin in July, although Nansen understood that he had done so, and that as the result of the failure of the two men to understand one another, the second conversation took place a week later. After the second conversation, McKnight seemingly acquiesced in Conlin's appointment, for Conlin continued to perform duties as shop clerk on the night shift, though without any change in his pay as timekeeper, until about October 15. On this date it is undisputed that McKnight directed Nansen to prepare a list of employees under his supervision together with their titles. Nansen did so, and submitted to McKnight a list on which Conlin appeared as a shop clerk. McKnight on this occasion again told Nansen that Conlin's promotion was without McKnight's authority, and ordered Conlin back to timekeeping.8 Conlin resigned his employment on Oc- tober 23. To summarize, it appears, and the undersigned finds, that while McKnight did not originally grant Nansen authority to promote Conlin, McKnight accepted the situation to the extent of permitting Conlin to perform temporarily the duties of shop clerk though without the salary and the formal title which at- tached to that position.' That Conlin was in fact performing such duties is apparent from McKnight's testimony, quoted above, that on October 15 he instructed Nansen to order Conlin "back to his timekeeping work." Conclusions as to the discharges The respondent contends that it was justified in discharging Tamburo because of his appearance at the meeting of Local 1206, and the statements which it was reported that he had made there. Irrespective of whether Tamburo's own version of his remarks on that occasion, or that given the respondent by its informants on November 11, was the nearer in accordance with the facts, it cannot be denied that, under either version, his remarks amounted to moral support of the strike. By the same token, however, it cannot seriously be argued that Tamburo could have been understood by the strikers as speaking for management It is only by crediting, as the undersigned does, Tamburo's further testimony that lie urged the strikers to return to work, that it can be contended that the strikers might have considered him as speaking for the respondent Tamburo's remarks in this connection, however, admittedly were not reported to management, and hence did not affect the respondent's decision to discharge him. Although the respondent contended that Tamburo violated "company policy" in appearing before the meeting of Local 1206, Porter admitted, while testifying, that Tamburo had never been informed of any such policy and that a similar incident had never previously occurred. It is clear from the record that there was not any formal plant rule forbidding supervisory employees from attending union meet- cKnight's testimony as to this conversation and his demotion of Conlin, was, in part, 11 ag follows: Q What was the occasion for telling him (Nansen) at that time? A - I immediately got in touch with him and asked him why he had made Conlin shift supervisor in the face of the fact that I had repeatedly told him that he could not make a promotion without securing permission from me. Q. What did Nansen say '9 A Ile said that it was his understanding that he had that authority and I re- minded him that he didn't have that authority and I ordered him to order Conlin back to his timekeeping work. [Italics supplied.] 91t will be observed that McKnight demoted Conlin four days after Conlin's and Tamburo's interview with Porter and McCullough, alluded to above in connection with Tamburo's discharge, to request a meeting, for the purpose of discussing the re- spondent's recognition of the Union. The complaint does not allege, however, that Conlin's demotion was discriminatory 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ings of production workers, and that what Porter had in mind when he testified as to the respondent's policy with respect thereto, was merely the propriety of such an act on the part of a foreman 1U The respondent contends, in its brief, that Tamburo's appearance at that meet- ing constituted, in itself, and irrespective of anything he said, a violation of the respondent's neutrality and exposed the respondent to a charge of interference with the organizational activities of its employees. In support of this contention counsel cites the Soss case," where the Board discusses the status of supervisory employees under the Act and holds that they are "employees" within the meaning of the Act and subject to the protection of Section 8 (1) and (3) thereof. Por- tions of the Board's decision in the doss case are set forth below.12 The undersigned does not find it necessary to determine, however, whether Tamburo's appearance before Local 1206 constituted such collective activity as, standing alone, would insure him against discharge or other discipline He be- 10 Porter's testimony as to his conception of a foreman's duties in the existing cir- cumstances was, in part, as follows. Q. (By Mr. Kennedy.) Would it also have been against the company policy for Mr. Tamburo to have addressed that meeting even though he urged the workers to go back to work? Would he have any authority to make such a ... A. He wouldn't have any authority for it In handling a situation of that kind the works manager knows what should be done and he issues all the orders and directions to the supervisors as to their part in handling a situation that develops of that nature. Now, they should do what the works manager tells them to do. They have no authority to do otherwise in a situation such as that which occurred in the plant at that time Q Is it company policy or was it company policy at that time not even to discuss a matter of this kind with the Union while it was out on strike, not to discuss it until they returned to work's Mr PACKARD. I object, Mr. Examiner. Trial Examiner RticKEn. You may answer A The company policy-it was an unauthorized strike The attitude of the company was to handle it in the regular manner by taking it up first with the officials of the local, then with the international officers and then reporting it to the war Labor Board in the proper manner. "Matter of Soss Manufacturing Company and Foremen's Association of America, 56 N L R. B 348, decided May 8, 1944, together with Matter of Republic Steel Cor- poration (98" Strip Mill) and Foreman's Association of America, 62 N L. R B 1008. 11 "We conclude that supervisors are `employees' and that supervisory status does not by its own force remove an employee front the protection of Section 8 (1) and (3) of the Labor Relations Act "In reaching this conclusion we do not mean to suggest, of course, that every dis- charge of a supervisory employee for engaging in union activity is a violation of the Act. As well as being employees, supervisors are also representatives of management and their conduct is held attributable to their employer when it interferes with the rights of ordinary employees to self-organization and collective bargaining. That being true, we recognize the right of an employer to protect his neutrality by requiring his supervisory employees to refrain from unneutral activities which impinge upon the rghts of their subordinates, and to take appropriate measures to that end Consequently, the right tinder the Act of supervisors to protection in their organizational and other concerted activities is not an unqualified one, but is subordinate to the organizational rights and freedom of rank and file employees, and to the need of an employer to main- tain his neutrality. "In the cases now before its we are concerned solely with the question of the right of employers to discriminate against foremen because of their membership and activi- ties In an independent labor organization whose membership is confined to supervisory employees Adherence of supervisory officials to such an organization cannot normally have any impact upon the rights of ordinary employees, nor can it normally affect an employer's position of neutrality. On the basis of the charges Lefore us, and without determining the merits of the cases, we are of the opinion that the supervisory status of the foremen alleged to have been discriminated against presenti no lar to findings of violations of Section 8 (1) and (3) of the Act " AMERICAN STEEL FOUNDRIES 45 lieves it clear that the real reason for Tamburo's discharge was his activity as a spokesman for the Union in demanding its recognition as representative of the respondent's foremen. It is evident that the respondent looked with disfavor upon and was determined to repulse all attempts of its foremen to organize and to bargain collectively. Tamburo's discharge occurred at the very hour when the discontent of the members of the Union reached its climax in the gathering of a group of approximately 50 foremen outside Porter's office His discharge immediately served to remove from its employ one of the Union's principal spokesmen . It emphasized as nothing else could have done what the undersigned believes and finds to have been a determination on the part of the respondent to put an end to the union organization of its foremen. The discharge of Nansen , following upon the heels of Tamburo 's own discharge, and four days following the demotion of Conlin, supports the finding that the persistence of the Union in pressing for recognition was the motivating cause for both discharges. The undersigned is not impressed with the reasons alleged by the respondent for discharging Nansen. Although Nansen, as has been found , promoted Conlin without McI ight 's authority, McKnight subsequently acquiesced in what amounted to a temporary advancement of Conlin to a position as shop clerk without the attending salary or title . Although McKnight reprimanded Nansen, lie took no disciplinary measure against either at the time of Conlin 's promotion or on October 15 when the issue as to Conlin was revived by McKnight and Conlin was demoted . Thereafter , almost a month elapsed before Nansen's discharge, during which time the record reveals no act by Nansen characterizable as in- subordination, unless the undersigned were to accept the respondent's application of this term to Nansen's attempt to present the Union 's grievance concerning the promotion of Johnson . McKnight admitted that this was the immediate cause of Nansen's discharge. What the respondent chose to regard as insubordination was merely the attempt of the Union to discuss a grievance of one of its mem- bers. The undersigned finds that the respondent in the case of Nansen, as in the case of Tamburo, determined to emphasize its refusal to accord the right of collective action to its supervisory employees by discharging him." Irrespective of the rights of supervisory employees to bargain collectively as decided in the Maryland Drydock" case, cited in the respondent's brief, the Board has held that such employees are within the protection afforded by Sec- tion 8 (3) of the Act, and may not be discharged because of their membership in or permissible activity on behalf of a labor organization.6 The undersigned finds that the respondent on November 11, 1943, discharged Carmen Tamburo and Everett Nansen because of their union membership and activity, and that in so doing the respondent discouraged membership 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 EIFFCT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with its operations as described in Section I, above, have a close, '3 It has previously been noted that Conlin was demoted to timekeeper on October 15, four days after Nansen's and Tamburo's demand on the respondent that it discuss recognition of the Union This demotion, of course, served to make Conlin ineligible to membership in the Union Hence, by the discharge of Tamburo and Nansen, and the de- motion of Conlin the respondent disposed of each of the three representatives of the Union who had acted as the Union's agents in demanding recognition Conlin, however, did not file a charge, and his name does not appear in the complaint '149 N 1, It B 733 `Sass Lfanufactariaq Company and Foremen's Association of America, ibid. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor prac- tices, 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 Carmen Tamburo and Everett Nansen by discharging them. He will therefore recom- mend that the respondent offer Carmen Tamburo immediate and full reinstatement to his former or substantially equivalent position without prejudice to his sen- iority and other rights and privileges, and that the respondent make Carmen Tamburo whole 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 lie normally would 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 With respect to Everett Nansen, the undersigned will recommend that upon application by him within ninety (90) (lays after his discharge from the armed forces of the United States, the respondent offer him immediate and full re- instatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and that the respondent make him whole 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 normally would have earned as wages during the periods (1) between the date of the respondent's unlawful discrimination and the date of his entry 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. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS oF LAW 1. Foreman's Association of America, Chapter 57, 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 Car- men Tamburo and Everett Nansen, thereby discouraging membership in a labor organization, 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 unfair labor practices within the meaning of Section 8 (1) of the Act. "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 elsewhere than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. It. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work relief projects shall be considered as earnings. See Repulic Steel Corporation v. N. L.R B., 311 U S 7. AMERICAN STEEL FOUNDRIES 47 4. The aforesaid labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent, American Steel Foundries, Indiana Harbor Works, its officers, agents, successors, and assigns shall. 1. Cease and desist from : (a) Discouraging membership in Foreman's Association of America, Chap- ter 57, or any other labor organization of its employees, by discharging or re- fusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment, or any terms or conditions of employment : (b) In any other manner intertering 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 Foreman's Association of America, Chapter 57, or any other labor organization, to baigain 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 undersigned finds will effectuate the policies of the Act. (a) Offer Carmen Tamburo immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges ; (b) Make whole Carmen Tamburo for any loss of pay he may have suf- fered By reason of the respondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during said period; (c) Upon application by Everett Nansen within ninety (90) days after his discharge from the armed forces of the United States, otter him full and im- mediate reinstatement to his former or substantially equivalent position, with- out prejudice to his seniority or other rights and privileges; (d) Make whole Everett Nansen 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 normally would have earned as wages during the periods: (1) between the date of the respondent's unlaw- ful discrimination and the date of his induction into the armed forces of the United States, and (2) between the date five (5) days after his timely appli- cation for reinstatement and the date of the offer of reinstatement, less his net earnings during these periods,' (e) Post immediately in conspicuous places throughout its plant at Indiana Harbor, Indiana, and maintain for a period of sixty (60) consecutive days from the date of posting, notices to its employees stating (1) that the respond- ent 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 afiirma- 17 The fact that Nansen may become entitled to further back pay following his timely application for reinstatement upon his discharge from the armed forces of the United States, should not be regarded as affecting the respondent's obligation to pav him im- mediately whatever amount is due him for the period from the date of the respondent's disci imination against him to the date on which he entered the armed forces of the United Sta te,. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Live action set forth in paragraphs 2 (a), (b), (c), and (d) hereof; and (3) that the respondent's employees are free to become or remain members of Foreman's Association of America, Chapter 57, and that the respondent will not discriminate against any of its employees because of membership in or activities on behalf of that organization. (f) Notify the Regional Director for the Thirteenth Region in writing with- in ten (10) 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 ten (10) days from the receipt of this Intermediate Report the respondent notifies the said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 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 statement in writing setting forth such exceptions to the Inter- mediate Report or to any other part of the record or proceeding (including r liugs upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally. before the Board, request therefor must be made in writing within ten (10) days from the date of the order transferring the case to the Board. HORACE A RUCKEL, Trial Examiner Dated December 30, 1944.