Hawkeye Steel Products Co.

In the Matter of E. DALE NASON AND MARTIN H. LORENZEN, CO- PARTNERS, D. B. A. HAWKEYE STEEL PRODUCTS COMPANY and UNITED FARM EQUIPMENT & METAL WORKERS OF AMERICA, C. I. O. Case No. 18-C-1165.-Decided April 26, 1946 DECISION AND ORDER On February 8, 1946, 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, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondents filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudi- cial errors were committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings and conclusions and recommendations of the Trial Exam- iner. In agreeing with the Trial Examiner's findings and conclusions, we are particularly persuaded by employee Gilda Moyer's uncontra- dicted testimony, which reveals that Superintendent Lorenzen and Foreman Trost expressed their opposition to the Union and engaged in conduct interfering with, restraining, and coercing the employees in the exercise of their self -organizational rights, and by her further uncontradicted testimony that Superintendent Lorenzen had made known the respondents' intention of discharging employees Draheim and Stykoff because of their activities in behalf of the Union. Super- intendent Lorenzen and Foreman Trost were not called as witnesses at the hearing before the Trial Examiner, and no showing or claim was made that they were unavailable. 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, E. Dale Nason and Martin H. Lorenzen, d. b. a. Hawkeye Steel Products Company, Waterloo, Iowa, and their officers, agents, successors and assigns, shall: 67 N. L. R. B, No. 106. 815 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Discouraging membership in United Farm Equipment & Metal Workers of America, C. I. 0., or any other labor organization of its employees, by discharging, laying off, or refusing to reinstate any of their employees, or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Farm Equipment & Metal Workers of America, C. I. 0., 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 bar- gaining 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 John Draheim and Gilda Moyer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole John Draheim, Tony Stykoff, and Gilda Moyer, for any loss of pay they may have suffered by reason of the respond- ents' discrimination against them, by payment to each of them of a sum of money equal to the amount which he or she normally would have earned as wages from the date of the respondents' discrimination against each to the date of his or her reinstatement or the respondents' offer of reinstatement, less his or her net earnings during said period; (c) Post at their plant in Waterloo, Iowa, copies of the notice at- tached to the Intermediate Report, marked "Appendix A." 1 Copies of said notice to be furnished by the Regional Director for the Eight- eenth Region, shall, after being duly signed by the respondents, be posted by them immediately upon receipt thereof, and maintained by them 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 respondents to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Eighteenth Region in writing, within ten (10) days from the date of this order, what steps the respondents have taken to comply therewith. i Said notice , however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words , "The Recommendations of a Trial Examiner " and substi- tut3ng in lieu thereof the words "A Decision and Order." HAWKEYE STEEL PRODUCTS COMPANY 817 INTERMEDIATE REPORT Mr. Stephen M. Reynolds, for the Board. Pike, Si as & Butler, by Mr. George E. Pike, of Waterloo, Iowa, for the respond- ents. Meyers & Meyers, by Mr. Irving Meyers, of Chicago, Ill., for the Union. STATEMENT OF THE CASE Upon an amended charge filed by United Farm Equipment & Metal Workers of America, C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eighteenth Region (Minneapolis, Minnesota), issued its complaint dated January 2, 1946, against E. Dale Nason and Martin H. Lorenzen, co-partners doing business as Hawkeye Steel Products Company, Waterloo, Iowa, herein called the respondents. The complaint alleged that the respondents had engaged and were 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, amended charge, and notice of hearing were duly served upon the respondents and the Union. With respect to the unfair labor practices, the complaint alleged in substance (1) that from on or about July 1, 1945, to the date of the issuance of the com- plaint, the respondents, in violation of Section 8 (1) of the Act, warned and discouraged employees against union membership and activities, threatened dis- crimination against employees prominent in the Union, and made derogatory statements about unions and union leaders; and (2) that the respondents, on specified dates in August 1945, and in violation of Section 8 (1) and (3) of the Act, laid off or discharged employees John Draheim, Tony Stykoff, and Regilda Moyer; and have since failed and refused to reemploy John Draheim and Regilda Moyer, in each case because the employee in question joined and assisted the Union and engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection. The respondents filed an answer in which they denied the allegations of the complaint concerning the unfair labor practices. The respondents also asserted in their answer that John Draheim and Regilda Moyer were discharged, and Tony Stykoff was laid off, in each case for reasons other than their union mem- bership or activities or their participation in concerted activities. Pursuant to notice, a hearing was held in Waterloo, Iowa, on January 15, 1946, before the undersigned Trial Examiner duly designated by the Chief Trial Ex- aminer. The Board, the respondents, and the Union were represented by counsel, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the end of the Board's case, an unopposed motion to amend the complaint to conform to the proof in minor matters of form (such as dates and misspelling of names) was granted. At the end of the hearing, the parties waived oral argument . Thereafter, pursuant to leave granted to all parties at the hearing, the respondents filed a brief with the Trial Examiner. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : 1I.n her testimony , Moyer gave her name as "Gilds Moyer." As hereinafter noted, the complaint was amended to correct misspellings of names. 692148-46-vol. 67-53 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The respondents, E. Dale Nason and Martin H. Lorenzen, doing business as Hawkeye Steel Products Company, have been engaged as copartners since Febru- ary 1, 1944, in the manufacture of war products and in the manufacture and sale of farm equipment at their plant in Waterloo, Iowa. During the first 10 months of 1945, the respondents purchased raw materials of an approximate value of $200,- 000, of which approximately 95 percent was purchased at. and shipped from points outside the State of Iowa During the same period, the respondents sold finished products of an approximate value of $525,000, of which approximately 25 percent constituted sales and shipments to points outside the State of Iowa. In their answer, the respondents admitted the allegation of the complaint that they have continuously caused large quantities of their finished products to be sold and transported in interstate commerce from their plant at Waterloo, Iowa, to and through States other than the State of Iowa. II. THE ORGANIZATION INVOLVED United Farm Equipment & Metal Workers of America, affiliated with the Con- gress of Industrial Organizations, is a labor organization admitting to member- ship employees of the respondents. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In the beginning of June 1945, a number of respondents' employees joined the Union, began wearing union buttons at work, and solicited the memberships of their fellow employees. Among those active in this solicitation were John Draheim and Tony Stykoff, both of whom worked in the foundry as moulders, and Gilda Moyer,' the only employee in the office of Foundry Superintendent Richard Lorenzen.' Draheim and Stykoff distributed the Union's membership application cards among the employees. Some of the girls employed in the hand grenade department handed their membership applications to Moyer, who then asked Superintendent Lorenzen whether she should deliver these cards to the Union's solicitors. After a slight hesitation, the superintendent told her she should do so and added "I want the Union in here." Thereupon, Moyer turned in to the Union her own application for membership as well as those of the other girls. Notwithstanding Superintendent Lorenzen's statement to Moyer, the respond- ents were apparently made uneasy from the outset by the organizational activi- ties of their employees. Draheim had been hired on May 28, 1945, and a few days later asked the respondent Nason for an advance against his wages. Nason granted the request but having seen Draheim pass out cards to the other employees, he asked Draheim why the latter had started organizing. When Draheim denied any connection with the Union's activities, Nason remarked that he did not care whether the Union "got in" but wanted the employees to make up their own minds.4 On June 28, 1945, a union committee, including Draheim, met with both of the s Referred to in the complaint as "Regilda Moyer." See footnote 1, supra. Superintendent Richard Lorenzen is the brother of the respondent , Martin Lorenzen. The findings concerning Nason's statements to Draheim are based not only upon Dra- helm's testimony but also upon Nason's admission that, although he never spoke to Dra- heim about the Union , he asked Draheim "why it was that be wanted to organize." Accord- ing to Nason , he was "just interested " HAWKEYE STEEL PRODUCTS COMPANY 819 respondents and a Field Examiner of the Board at the office of the respondents' attorney. Stykoff was also present although he was apparently not a formally designated member of the union committee. In the course of this conference, the Union and the respondents entered into an agreement to hold an election among the employees to determine whether or not they wanted to be represented by the Union The election was held on July 10, with Draheiin and Moyer acting as observers for the Union. Seventy votes were cast against, and 27 for, repre- sentation by the Union. So far as the record discloses, there has been no union activity in the respondents' plant since that time. Both before and after the election, however, the respondent Martin Lorenzen, Foundry Superintendent Richard Lorenzen, and Foundry Foreman Fred Trost made it plain by their frank statements to, or in the presence of Moyer, whose testimony was uncontradicted, not only that the respondents opposed the eni- ployees' attempts to secure representation by the Uifion but that they intended to discharge Draheim and Stykoff because of their leadership of the union movement. Thus, a week before the election, Foreman Trost, noting that Moyer wore a union button, laughed and asked her, "What good do you think that will do you?" At about the same time, Superintendent Lorenzen told Moyer that the Union would not get an election because both of the respondents and Manager Fergemann "don't want any union in here." Several times during this general pe- riod, the respondent Lorenzen and Superintendent Lorenzen also frankly discussed in Moyer's presence their intention to dismiss employees "unfavorable" to them when the war ended. On one such occasion after the election, Superintendent Lorenzen told Moyer that when the war was over, the respondents "could get rid o C these men" ; that they "wouldn't have to put up with a lot of things" ; and that John Draheiin "wouldn't be here long." When asked by Moyer why he had hired Draheiin, the superintendent replied with obvious reference to Draheim's union activities, "Well, I knew they wouldn't get any place anyway." Finally, on August 17 or 18, 1945, immediately after the announcement of the cessation of hostilities, Superintendent Lorenzen told the respondent Lorenzen, again in Moyer's presence, "now we can get rid of our agitators like Tony [Stykoff] and John Draheiin. The C. I. 0. picked the dumbest people to represent them," to which tie respondent Lorenzen replied, "Yes, that's right" From the foregoing facts shown by the uncontradicted testimony of the Board's witnesses it is clear (1) that the respondents, through Nason, questioned Draheim concerning his union activity and, though disclaiming any intent to discourage such activity or union membership, did in fact attempt to do so and (2) that the iespciuients through the statements made by the respondent Martin Lorenzen, Superintendent Richard Lorenzen, and Foreman Trost directly to, or in the presence of, Regilda Moyer, who was known to them as a leader of the Union, not only ridiculed the Union and its leadership, but also threatened the union leaders with discharge. The undersigned therefore finds that by these acts the respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby committing unfair labor prac- tice, within the meaning of Section 8 (1) thereof. B. Discrimination 1. The discharge of John Draheiin John Draheim was employed by the respondent as a moulder from May 28, 1945 until his discharge on August 210,194V He joined the Union in the early part of b Draheiin had been previously employed by Hawkeye Steel Products Company for 5 or 6 months beginning in January 1936, when the respondent Martin Lorenzen was the sole proprietor of the business 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 1945, and signed up between 35 and 40 union members among the respondent's employees not only in the foundry but in the rest of the plant as well. As already noted, he was questioned by the respondent Nason as to why he had begun organiz- ing the employees ; he served on the union committee which met with the respond- ents on June 28; and he also acted as an observer for the Union at the election held on July 10. As has also been noted, Superintendent Lorenzen, with a clear allusion to Draheim's union activities, told Moyer that "John Draheim [won't] be here long" and shortly thereafter also referred to him as an "agitator" whom the end of the war would permit the respondents to discharge. On Monday, August 20, 1945, less than a week after the announcement of the Japanese surrender and the cessation of hostilities, Foundry Foreman Eastman told Draheim he had been instructed by Superintendent Lorenzen to discharge Draheim but did not know the reason therefor. When Draheim asked the superintendent, the latter answered, "For being absent." The respondent Nason, the only witness produced by the respondents, testified that he himself, without consulting Superintendent Lorenzen or the foundry foreman, had made the decision to discharge not only John Draheinb but also Tony Stykoff and Gilda Moyer, and had instructed Superintendent Lorenzen to do so. According to his testimony, Nason, as one of the partner-proprietors of the business, is primarily concerned with decisions of policy and with the handling of financial details and some of the personnel and production problems. Although he is in touch with the production departments, with "general supervision" over them, he admitted that he has "very little" actual contact with the production end of the business and the superintendent "ordinarily" initiated discharges. While Nason added that "sometimes" lie discharged employees, he was able to cite as examples only the discharges of Draheim, Stykoll, and Moyer and the subsequent discharges of two other employees Thus, from tiason's testimony, it is apparent not merely that it was unusual for him to order discharges but that the three union leaders involved in the present case were the hr,t euiplovecs whom he had ever discharged. Nason testified that his decision to discharge Diaheim was Based upon Dra- heim's inefficiency and repeated absences from work in spite of warms ge, and not upon his known activity as a member of the Union. keeordiug to the sub- stance of his testimony, his examination of the respondents' records had shown that, during the entire period of Draheim's employment consisting of 07 uorkiwg days, Draheim had worked only about 75 percent of the time or 4081;2 hours out of 540 hours ; ° that he had worked only one complete week without loss of any time; and that he had been absent 12 entire working days and fractions of about 11 other working days varying from 1% to 6% hours each. Furthermore, accord- ing to the respondents' records, Draheim turned out 6,824 hand grenades between July 23 and August 8, 1945, of which 1,521 or 22.3 percent were defective or scrap due to his fault. For purposes of comparison, Nason also submitted the records of Carl Finger, another employee who, unlike Draheim, had no experience as a moulder before he was hired by the respondents on approximately July 23, 1945. According to these records, Finger had not been absent at all from that date until August 20 and, on the same days worked by Draheim during that period, had turned out 7,680 hand grenades, only 736 or 9.5 percent of which were scrap attributable to his fault. A complete and fair appraisal of Draheim's work record and efficiency, how- ever, requires consideration of certain facts not reflected by these attendance "Nason testified that Draheim worked 4001A hours or 74 percent of the working time during the period of his employment. Nason's detailed testimony, week by week, however, indicates that Draheim worked 408% hours. HAWKEYE STEEL PRODUCTS COMPANY 821 and production figures. Thus, Nason admitted that Finger, although a new employee, had the best record of all the moulders of hand grenades in the re- spondent's employ, but stated that the highest scrap percentage of any other moulder was at least 3 percent less than that of Draheim. Furthermore, it is not clear from the evidence just how, and by whom, it was determined whether scrap in the case of hand grenades was caused by the moulders. Nor is it clear how reliable was this determination. For, although most of the moulders worked on a piece-work basis and were not to be paid for scrap for which they were responsible, it appears that no scrap was ever in fact charged against the hand grenade moulders as it was against the others. In addition, for some reason not satisfactorily explained, records of the scrap in the case of the hand grenades were discontinued after August 8. With respect to Draheim's poor attendance record, there is no dispute that he had been frequently absent from work ; that he had been individually warned by Nason in the latter part of July concerning his absences ; and that about 10 days before his discharge, the foundry foreman had told the moulders as a group that future unexcused absences would result in disbharge. On the other hand, Draheim attributed his absences to illnesses from stomach ulcers and it does not appear, either from the respondent's records or other evidence in the evidence in the case, whether he was excused by the respondents. Moreover, there was uncontradicted testimony that five other moulders were absent as fre- quently as Draheim but were not discharged. Drabeim also testified without contradiction that after the foundry foreman's warning to all the moulders, he was not absent unless he was first excused. Draheim's poor record, even if most favorably viewed in the light of the fore. going considerations, would have constituted fair grounds for his discharge. Thus, were it not for the strong evidence that the respondents had marked Draheim for discharge because of his union leadership, their contention that he was discharged because of his record would be credible. But, of course, the problem is not whether Draheim might fairly have been discharged because of his work and attendance record but whether, under the circumstances of the case, it appears that he was in fact discharged therefor or for his union mem- bership and activities . In the present case, the latter conclusion is clearly im- pelled by the record. For the respondents were obviously aroused by Draheim's union activities to the point where the superintendent and the respondent Lorenzen had definitely decided to discharge him as a union "agitator." And Superintendent Lorenzen, with remarkable frankness, told Moyer, another known union leader, that Draheim would be discharged at the end of the war, as in fact he was. Nason's attempt to assume responsibility for the discharge does not refute this conclusion . Even aside from the fact that he, too, had inter- fered with Draheim's union solicitation , his unusual assumption of the function of discharging the three union leaders, including Draheim, must be regarded, under the circumstances of the case, as indicating a consciousness that the dis- charges would appear to be discriminatory and a desire to divert responsibility from his less discreet partner and foundry superintendent. Upon the foregoing considerations the undersigned finds that the respondents discharged John Draheim because of his union membership and activities, thereby discriminating against him in regard to his hire and tenure of employment and discouraging membership in a labor organization in violation of Section 8 (1) and (3 ) of the Act. 2. The lay-off of Tony Stykoff Tony Stykoff has been employed by the Hawkeye Steel Products Company for approximately 5 years, starting work for it when Martin Lorenzen was the sole 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proprietor. A moulder for the last 37 years, he has performed all types of moulding. For about 6 or 7 months prior to his lay-off on August 20, 1945, he bad been floor-moulding a series of manifolds which the respondents were mak- ing for the Heisler Company. Shortly before his lay-off, the Heisler Company asked the respondents temporarily to discontinue this work pending a contem- plated change in design. For the next few days, Stykoff was put on other jobs but on August 20, 1945, he and Jake Shaffer, his partner, were discharged by Superintendent Lorenzen. On the same day, however, the respondent, Martin Lorenzen, told Stykoff he was not discharged but merely laid off. And as a matter of fact, he was recalled on October 9, 1945, to resume his work on the Heisler manifold job. As already noted, Stykoff joined the Union in the. first part of June, 1945, so- licited union memberships from his fellow-eniplovees, accompanied the union committee when it conferred with the respondents on June 28, and was specif- ically named by Superintendent Lorenzen, in his conversation with the respondent Lorenzen, as one of the "agitators" who would be discharged with the expected termination of the war. Furthermore, upon Stykoff's being laid off, he re- marked to Superintendent Lorenzen, "Oh, you don't want us to organize." The superintendent replied that Stykoff's union activities had nothing to do with his lay-off but added, "Why don't you get a union that is a union?" Nason testified that, as in the case of Draheim, he decided to discharge Stykoff and so instructed Superintendent Lorenzen, but that, contrary to his instruc- tions, Stykoff was merely laid off. Denying any intent to discriminate although he knew of Stykoff's union activity, Nason further testified that his decision to dismiss Stykoff was based (1) upon a desire to reduce the pay roll, (2) upon Stykoff's unwillingness to work on anything but the Heisler job and his intention to take a vacation when that was completed, (3) upon the protests of the other employees against working with Stykoff because of his vile language; and (4) upon Stykoff's high percentage of scrap. With the exception of the last given reason, none of these asserted grounds for Stykoff's discharge seem to have any firm basis in fact. Contrary to the suggestion that the respondents were generally reducing their pay roll, Stykoff testified without contradiction that there was plenty of work; that junior moulders, including a man broken in by him the previous week, were not laid off ; and that about 12 new men were hired during the period of lay-off. Concerning his alleged unwillingness to work at anything but the manifold job, Stykoff testi- fied, again without contradiction, that a few clays before he was laid off, Super- intendent Lorenzen had spoken to him of the possibility of a lay-off and he had then not only accepted the proffered alternative of work on another moulding job in the plant, but had twice shifted to different jobs at the superintendent's request immediately before his lay-off. With reference to his intention to take a vacation, Stykoff admitted that he had already drawn a week's vacation pay. But he had not been absent from work for an entire year and his request for a week off most certainly would not ordinarily justify the extended lay-off actually imposed upon him much less the discharge which Nason had decided upon. Nor was Nason convincing in his testimony that his decision to discharge Stykoff was in part based upon the objections of fellow employees to his vile language. In this connection Nason testified that in October, 1944, Stykoff's profanity had provoked an assault upon him in the plant by Steve Balibon, a fellow moulder ; that Stykoff had Balibon arrested, that immediately thereafter, other employees had objected to Stykoff's language ; that Nason had reprimanded Stykoff; that the protesting employees, Stykoff and Balibon, had continuecj to work together ; that Stykoff's language had improved ; and that no further pro- HAWKEYE STEEL PRODUCTS COMPANY 823 tests had been made to Nason about Stykoff until the spring of 1945. Nason's testimony does not disclose when the last of these protests was made, except that none came to his notice within the three weeks immediately prior to Sty- koff's lay-off. Upon his testimony, the undersigned is not convinced that Stykoff s language or the protests of his fellow employees were a live issue at the time of Stykoff's lay-off, or that in fact they played any role in Nason's decision to discharge him. Thus in the opinion of the undersigned, the only reason assigned by Nason for Stykoff's discharge which had any colorable basis in fact was Stykof's high percentage of scrap. While, as in the case of Draheim, this might reasonably have led an employer to discharge him or to lay him off, the evidence of the respond- ents' settled decision to discharge him because of his union activities is so strong that the undersigned concludes that this was in fact the motivating basis. Upon the foregoing facts the undersigned finds that the respondents laid off Tony Stykoff from August 20, 1945 until October 9, 1945, because of his union membership and activities, thereby discriminating against him in regard to his hire and tenure of employment and discouraging membership in a labor organiza- tion in violation of Section 8 (1) and (3) of the Act. 3. The discharge of Gilda Moyer Gilda Moyer was employed by the Hawkeye Steel Products Company from February 7, 1943' until her discharge on August 25, 1945. For the first year, she worked in the valve department as a machine operator. After February 18, 1944, she was employed as the only employee in the office of Foundry Superin- tendent Lorenzen, for whom she kept the foundry records and did stenographic work As already noted, she joined the Union in June, 1945, served as one of its observers in the consent election held on July 10, 1945, and was known by the respondents to be one of the Union's leaders. From the beginning of March, 1945, Moyer repeatedly requested Superintendent Lorenzen to furnish her with an assistant because of the amount of her work. Though relieved of her time-keeping duties for a short period, Superintendent Lorenzen told her on April 18, 1945, that she was to resume these duties and to assume other new tasks as well, but that she would get no raise. According to her testimony, she objected and then, when the superintendent asked her if she wanted to quit, she did so immediately, returning to her work, however, on the following Monday, April 23, when the superintendent visited her at her home and asked her to come back. Thereafter, Superintendent Lorenzen first promised Moyer to provide her with the assistance of Evangeline Lorenzen, daughter-in-law of the respondent Lorenzen, who was then working as an inspector in the hand grenade depart- ment. But, shortly before Moyer was discharged, he informed her that this was impossible because Evangeline Lorenzen was needed to fill a vacancy which would occur in the shipping department on September 1. On August 23, 1945, Superintendent Lorenzen told Moyer she was being dis- charged on August 25, the end of the week, because "orders . . . from Washing- ton" required the respondent "to get rid of all our married women" and that Evangeline Lorenzen would take her place. On the following day, when Moyer learned that there was no such Federal rule, she asked the superintendent who had ordered her discharge. His reply was, "I won't say, it came from the other office Now that the war is over, we can hire and fire as we please." 7 As in the case of Stykoff her employment by the Company began before, and continued after, the formation of the respondents' present partnership. DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,Pursuant to her discharge, Moyer's work for the respondents ceased on August 25. Evangeline Lorenzen took her place and was provided with an assistant. Moreover, contrary to the Superintendent's original explanation of Moyer's discharge, 44 or 5 other married women were retained as employees and one was hired in October. Again, as in the case of Draheim and Stykoff, Nason stated at the hearing that he had made the decision to discharge Moyer, without consulting Superintendent Lorenzen. He testified that Evangeline Lorenzen wanted an office job; that this necessitated the discharge either of Moyer or of one of the four girls employed in the main office ; that of these five girls, only Moyer, by her "walk-out" the preceding spring, had ever caused the respondents any trouble; and that he there- fore instructed Superintendent Lorenzen to discharge Moyer with this explana- tion, learning only later that the superintendent had told Moyer she was dis- charged because she was a married woman. Nason admitted that several of the four girls in the main office had worked for the respondents a shorter time than had Moyer and he did not deny that a new girl was hired to assist Evange- line Lorenzen in the foundry office after Moyer's discharge Upon this testimony, the undersigned is convinced that the respondents dis- charged Moyer because of her union activities, as they had discharged Draheim and laid off Stykoff a few days previously, and not for the reasons assigned by Nason in his testimony. Superintendent Lorenzen's explanation of the discharge to Moyer at the time was obviously a lame attempt to conceal the real reason. If, as Nason testified, the superintendent had been instructed by Nason to tell Moyer that she was being discharged to make a place for the wife of the super- intendent's nephew, and that Moyer had been chosen for discharge rather than the other office girls because of the incident the preceding spring, the superin- tendent no doubt would not have hesitated to tell Moyer that was the case. Moreover, since the respondents hired another girl to work with Evangeline in the office, Moyer's discharge was clearly not necessary to attain the objective stated by Nason. The undersigned therefore finds that the respondents discharged Gilda Moyer on August 25, 1945, because of her union membership and activities thereby dis- criminating against her in regard to her hire and tenure of employment and discouraging membership in a labor organization in violation of Section 8 (1) and (3) 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 described in Section I, above, have a close, Intimate, and substantial relation to trade, traffic, and com- merce 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 unfair labor prac- x}c es within the meaning of Section 8 (1) and (3) of the Act, the undersigned will recommend that they cease and desist therefrom and take certain affirmative acttou In order to effectuate the policies of the Act. The unfair labor practices found by the undersigned represent an attempt by the respondents to defeat self-organization among their employees by a course of unlawful conduct based upon discrimination which "goes to the very heart HAWKEYE STEEL PRODUCTS COMPANY 825 of the Act,"' and constitutes the grossest form of violation of the rights guar- anteed by Section 7, and generally protected by Section 8 (1) of the Act. That an employer has deliberately resorted to discrimination, as have the respondents in the present case, indicates not merely his disposition to commit similar acts of discrimination in the future but also (1) his broader and basic "attitude of opposition to the purposes of the Act to protect the rights of employees gener- ally," ° and (2) the consequent likelihood of his resorting to the lesser acts of interference, restraint, and coercion with these rights as guaranteed by Section 7 and protected by Section 8 (1) of the Act1° The preventive purposes of the Act will be thwarted unless the Board's order is coextensive with this threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent industrial strife which burdens and obstructs commerce and thus to effectuate the policies of the Act, the undersigned will recommend that the respondents cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. The undersigned has found that by discharging John Draheim and Gilda Moyer and by laying off Tony Stykoff between August 20, 1945 and October 9, 1945, the respondents discriminated against them in regard to their hire and tenure of employment, thereby discouraging membership in a labor organization. it will be recommended (1) that the respondents offer John Draheim and Gilda Moyer immediate and full reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges; (2) that the respondents make John Draheim and Gilda Moyer whole for any loss of earnings suffered by them by reason of their discriminatory discharges by payment to each of them of a sum of money equal to that which he or she normally would have earned as wages from the date of his or her discriminatory discharge, to the date of the offer of reinstatement less his or her net earnings," during that period; and (3) that the respondents make Tony Stykoff whole for any loss of pay he may have suffered by reason of his discriminatory lay-off by payment to him of a suin of money equal to that which he normally would have earned as wages between August 20, 1945 and October 9, 1945, less his net earnings during that period. It will also be recommended that the respondents post appropriate notices. Upon the basis of the above findings of fact, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Farm Equipment & Metal Workers of America, C. I 0, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of John Draheim, Gilda Moyer, and Tony Stykoff and thereby discouraging membership in United Farm Equipment & Metal Workers of America, C. I. 0., the respondents have engaged in, and are engaging in, unfair labor practices within the meaning of Section 8 (3) of the Act. 8N. L. R. B. v. Entwistle Manufacturing Co, 120 F. (2d) 532, 536 (C. C. A 4) See also N. L. R. B. v. Automotive Maintenance Machinery Go, 116 F. (2d) 350, 353 (C. C. A. 7). 0 May Department Stores Company v. N. L R. B, 323 U. S. 376 10 See N. L. R. B. v. Empress Publishing Company, 312 U. S. 426, 437. 11 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 respondents, 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 earnings . See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7), of the Act. RECOMMENDATIONS On the basis of the above findings of fact and conclusions of law, the under- signed hereby recommends that the respondents, E. Dale Nason and Martin H. Lorenzen, co-partners doing business as Hawkeye Steel Products Company, Water- loo, Iowa, their agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Farm Equipment & Metal Workers of America, C. I. 0., or in any other labor organization of their employees, by dis- criminatorily discharging or ]riving off employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condi- tion of employment ; (b) In any other manner interfering with, restraining, or coercing their em- ployees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist United Farm Equipment & Metal Workers of America, C. I. 0, or any other labor organization, to bargain collectively through repre- sentatives 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 eftec- tuate the policies of the Act : (a) Offer to John Draheim and Gilda Moyer immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay he or she may have suffered by reason of the discrimination against them, by payment to him or her of a sum of money equal to that which he or she normally would have earned as wages from the date of his or her discriminatory discharge to the date of the offer of reinstatement, less his or her net earnings during the period. (b) Make Tony Stykoff whole for any loss of pay he may have suffered by reason of his discriminatory lay-off by payment to him of a sum of money equal to that which he normally would have earned as wages between August 20, 1945 and October 9, 1945, less his net earnings during that period. (c) Post at their plant in Waterloo, Iowa copies of the notice attached hereto. marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by the respond- ents, be posted by them immediately upon receipt thereof, and maintained by them 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 respondents to insure that said notices are not altered. defaced, or covered by any other material; (d) Notify the Regional Director for the Eighteenth 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 with the foregoing recommendations. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondents have notified said Regional Director in writing that they will comply with the foregoing HAWKEYE STEEL PRODUCTS COMPANY 827 recommendations, 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, effective November 27, 1945, as amended, 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, Ro- chambeau Building, Washington 25, 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 exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any .party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within, ten (10) days from the date of the order trans- ferring the case to the Board. WILLIAM F. SCISARNIrow, Trial Examiner. Dated February 8, 1946. APPENDIX A NOTICE To ALL EMPLOYEF.s Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist United Farm Equipment & Metal Workers of America, C I 0., or any other labor organization, to bargain collectively through rep- resentatives 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 John Draheim and Gilda Moyer immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and will make John Draheim, Gilda Moyer, and Tony Stykoff whole for any loss of pay suffered as a result of discrimination. All our employees are free to become or remain members of the above-named union or any other labor organization We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. E. DALE NASDN AND MARTIN H. LOR- ENZEN , CO-PARTNERS DOING BUSINESS AS HAWKEYE STEEL PRODUCTS COMPANY 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.