Harrison Sheet Steel Co.

HARRISON SHEET STEEL CO. 81 and also indicates that the substance of the conduct in question was brought to the attention of the Union before the charge in Case No. 2-CA-798 was filed. On July 22, 1949, the Respondent and the Board's Regional Director executed a Settlement Agreement in Case No. 2-CA-798. This agreement provided that the Regional Director would not issue a complaint on that charge and it also provided that the Respondent would post a notice stating, in part, that the Respondent "will not in any manner interfere with, restrain, or coerce our employees" in the exercise of their rights under Section 7 of the Act. This is the type of notice which normally would be required upon a finding of unfair labor practices in respect to the mattter contained in the amendments to the complaint in the present case. The failure of the charge in Case No. 2-CA-798 to refer specifically to inter- rogation and threats of shut-down does not necessarily indicate that such mat- ters were not actually contemplated therein. For it is the complaint, not the charge upon which the complaint issues, which is required to contain the speci- fication of unfair labor practices. Cathey Lumber Co., 86 NLRB 157. Under all the circumstances, I find that the matters added to the present complaint were covered by the earlier charge in Case No. 2-CA-798 and, in any event, were resolved in the Settlement Agreement. As the Respondent has not been shown to have engaged in any unfair labor practices since the execution of the Settlement Agreement, or otherwise to have failed to comply with its terms, I shall not consider evidence relating to the conduct which allegedly occurred before the Settlement Agreement was executed. Accordingly, I shall recommend the dismissal of the complaint in this respect, without determining whether the Respondent did in fact engage in the conduct alleged. Compare J. J. Newbury Co, Inc., 88 NLRB 947; Standard Leather Goods Company, Inc., 83 NLRB 256. As I have found that the Respondent has not engaged in any unfair labor practices properly alleged in the complaint, I shall recommend that the entire complaint be dismissed. CONCLUSION OF LAW The Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act. Recommendations Upon the basis of the foregoing findings of fact and conclusion of law, it is recommended that the complaint against Electronics. Equipment Conhany, Inc., Brooklyn, New York, be dismissed in its entirety. i HARRISON SHEET STEEL CO. and UNITED AUTOMOBILE . AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS 'OF AMERICA UAW-CIO HARRISON SHEET STEEL Co. and GEORGE RIBES, ET AL . Cases Nos. 13-VA-364 and 13±CA=369. April 30; 1951 Decision and Order IV- , n 7 ., . ,•,.,. On November 28, 1950, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had engaged in and'was engaging in certain unfair 94 NLRB No. 23. 953841-52-vol. 94-7 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 General Coun- sel and the Respondent filed exceptions to the Intermediate Report and supporting briefs? The Respondent's request for oral argument is denied, as the record, including the exceptions and briefs, adequately present the issues and positions of the parties. The Board 2 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the following additions, exceptions, and modifications. 1. We find, as did the Trial Examiner, that the Respondent un- lawfully supported the Teamsters and interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) and 8 (a) (2). In so finding, the Board relies upon all the conduct of the Respondent set forth in the Intermediate Report, excluding, however, the conduct of Philip Folan,3 a truck mechanic, but including the conduct of the group leaders, as set forth therein. These group lead- ers assigned work to other employees, issued instructions to them as to the mode of work performance, and attended meetings of super- visors; they had power to recommend discharge or transfer of per- sonnel unsatisfactory to them, and they were responsible for the quantity and quality of the work performed in their respective groups. Under the circumstances, we agree with the Trial Examiner that the activities of the group leaders, whether or not they be regarded as supervisors within the meaning of the Act, are attributable to the Respondent.' The group leaders exercised some authority over sub- ordinate employees and were in a strategic position to translate policies and desires of management to those employees; consequently, as the Trial Examiner concluded, their positions "identified them with management in such a way as to cause the employees to look to them for guidance regarding the Respondent's policies." 2. The General Counsel excepts to the Trial Examiner's failure to find that the Respondent's conduct with respect to the Employee, 1 The General Counsel's exceptions are limited to objections to the Trial Examiner's failure to make certain findings and recommendations hereinafter referred to. % Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three -member panel [ Members Houston , Reynolds , and Styles]. 3 The Trial Examiner found that Folan requested employee Todd 's assistance "in signing up the shop for the Teamsters." ° See Sioux City Brewing Company, 82 NLRB 1061 , 1063 and other cases cited in the Intermediate Report. HARRISON SHEET STEEL CO. 83 Representative Plan, as set forth in the Intermediate Report, violated Section 8 (a) (2) of the Act and to recommend that the Employee Representative Plan be disestablished. We agree that the Respondent violated Section 8 (a) (2) of the Act with respect to the Employee Representative Plan by participating in its formation and supporting it, as more fully set forth in the Intermediate Report. We further find that the Employee Representative Plan was a company-domi- nated labor organization. As the record shows that the Employee Representative Plan has ceased to function, we shall direct the Re- spondent to disestablish the Plan, if and when it should resume func- tioning.5 3. We agree with the Trial Examiner that the Respondent unlaw- fully discharged Charles Todd in violation of Section 8 (a) (3) and (1) of the Act for the reasons set forth in the Intermediate Report_ In addition to the facts there stated, we also note that the Respondent, disregarded its own written rules in discharging Todd. The Respond- ent's written rules provide that any employee was subject to dis- charge for "Fighting (starting it), and/or attempting bodily injury to fellow employee." The Respondent's investigation, of the Todd- Barti fight of June 27, the alleged basis of the discharge, did not reveal that Todd either started the fight or attempted to injure Barti. Thus, in discharging Todd, the Respondent ignored its own estab- lished rules governing the conduct of its employees. For this reason, as well as those relied on by the Trial Examiner, we are convinced that the Respondent seized upon the June 27 fight as a pretext to discharge Todd, and that, for the reasons stated in the Intermediate Report, the Respondent discharged Todd because of his union activities. 4. As stated above, the Trial Examiner found that the Respondent violated Section 8 (a) (3) and (1) of the Act by discharging Todd. As we agree with the Trial Examiner that the Respondent discharged Todd because of his opposition to the Teamsters, and to placate the Teamsters, we also find, as the General Counsel urges us to do, that, by discharging Todd, the Respondent further supported the Teamsters in violation of Section 8 (a) (2) of the Act. Order Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National 6 See Happ Brothers Company, Inc, 90 NLRB 1513; Sun Oil Company, 89 NLRB 833. Board Member Reynolds does not concur in the above finding that the Plan was a company-dominated organization inasmuch as (1) the Respondent did not initiate the Plan, (2) members of the various unions in the plant were selected as representatives on the Plan committee, and (3) at the time the Plan was established the Respondent expressly stated that it would deal with the committee concerning grievances only until such time as the Company recognized one of the unions seeking to represent its employees, and in fact later abandoned the Plan at the time it recognized the Teamsters. 84 DECISIONS OF NATIONAL LABOR" RELATIONS BOARD Labor Relations Board hereby orders that the Respondent, Harrison Sheet Steel Co., Chicago, Illinois, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of the Employee Representative Plan, or contributing support thereto, in the event that it returns to active existence. (b) Contributing support to Steel, Metal and Alloy Warehousemen and Handlers' Union, Local 785 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers df America, AFL. (c) Recognizing Steel, Metal and Alloy Warehousemen and Han- dlers' Union, Local 785 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or any successor thereto, as the representative of any of its employees for the purpose of dealing with the Respondent-concerning grievances, labor Z, Zn disputes, wages, rates of pay, hours of employment, or other condi- tions of work, unless and until said labor organization shall have been certified as, such representative by the National Labor Relations Board. (d) Performing or giving effect to its contract, effective November 1, 1949, with Steel, Metal and Alloy Warehousemen and Handlers' ' Union, Local 785 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, or to any modification, extension, supplement, or renewal thereof. (e) Discouraging membership in United Automobile; Aircraft, and Agricultural Implement Workers of America '(UAW-CIO), or 'United Electrical, Radio and Machine Workers of America, or any other labor organization of its employees, by discharging or refusing to, reinstate' any of its employees, or by discriminating in any, other manner in regardto their hire and tenure of employment or any term or condition of employment. (f) -Interrogating its employees concerning their, union activities, threatening them with discharge, or conducting polls of its employees concerning their 'union affiliation. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist United Automobile, Aircraft and Agricultural Imple- ment Workers of America (UAW-CIO), or United Electrical, Radio & Machine Workers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, to engaige in'con'certed activities for the-purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such i dtivities, except to the extent that such right, may bi-affected by an agreement, requiring membership in a• labor. organization as a condi- tion of employment, as authorized in Section 8 (a) (3) of the Act. HARRISON SHEET. STEEL CO., 85 2. Take. the following affirmative action, which the„ Board finds will effectuate thespolicies of the Act: (a) Withdraw ,and. withhold all recognition from, Steel, Metal and Alloy Warehousemen and Handlers' Union, Local,785 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and. Helpers.of. America, AFL, as the representative,;of,.any of,-,the Respondent'ss, employees,for, the purpose of dealing with. the Respond- ent concerning grievances, labor disputes, wages,: rates -of :pay,-hours of employment; or other conditions. of employinwit, unless and, until said labor organization shall haye,been certified as such representative by the National Labor Relations- Board. (b) Completely; disestablisli, the, : Employee,. Representative Plan in the'eventthat,it returns to active, existence. (c) Offer Charles Todd immediate, and full reinst,atemerit to his former,, or- a substantial]4y, equiyalent;,position without prejudice to his • seniority- •or.- other _-rights -And privileges; and .make him;,whole for any loss of-pay; that he may.have,suffe,red.by reason of, the Respond- ent's discrimination against. ,him, in• the manner, described, in the section- of-the Intermndiate,Report•entitled. "The-remedy." (d) Upon request, make available to the National Labor Relations Board or its agents, or ,examinationand, copying,,all payroll records, social .security payment records, time cards, personnel,.records' ane reports; and, all,other -records necessary to determine the amount of back pay due under the-terms of-this Order.. (e) Post at its office and four,plants,in Chicago and Cicero, Illinois, copies of the,notice attached. hereto and marked Appendix A.6 Copies of•said,rnotice, to,.be.furnished.by the Regional Director-,for, the Thirteenth Region; shall, after,. being, signed, by,,the ,Respondent's representative, be, posted.. by, ,the, Respondent and. maintained 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 .other- material.- (f) Notify the Regional Director. for .the,, Thirteenth,,Region in wr-iting,,. within, ten, (1Q) days from. the,date , of, this Order, what steps the,Respondent,has taken 'to, comply herewith. Appendix A - NOTICE TO. ALL -EMPLOYEES Pursuant!to a Decision and Order. of the National- Labor. Relations Board;'and in.orsler to effectuate the policies,,of the National Labor Relations Act, we hereby; notify our employee& that, 9 In-the event that,this Order is enforced by decree of a United States Court of Appeals, there -shall .be inserted, before, the words,."A Decision, and Order," the words, "A Decree of the United States Court of Appeals Enforcing." 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL withdraw and withhold recognition from the STEEL, METAL AND ALLOY WAREHOUSEMEN HANDLERS' UNION, LOCAL 785 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, until, it is certi- fied by the National Labor Relations Board. We will not recog- nize the STEEL, METAL AND ALLOY WAREHOUSEMEN AND HANDLERS' UNION, LOCAL 785 OF THE-INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, as the representative of any of our employees for the pur- pose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it, or any successor thereto, for any of the above purposes, unless and until it is certified by the National Labor Relations Board. WE WILL NOT give effect to our contract, effective November 1, 1949, with STEEL, METAL AND ALLOY WAREHOUSEMEN AND HAN- DLERS' UNION, LOCAL 785 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, or to any modification, extension, supplement, or renewal thereof. WE WILL NOT interfere with the administration of, STEEL, METAL AND ALLOY WAREHOUSEMEN AND HANDLERS' UNION, LOCAL 785 OF THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF- FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, or any other labor organization, or contribute support thereto. WE WILL disestablish the EMPLOYEE REPRESENTATIVE PLAN as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it, or any successor thereto, for any pf the above purposes in the event that it returns to active existence. WE WILL offer to the employee named below immediate and full reinstatement to his former or substantially equivalent posi- tion without prejudice to any seniority or other rights or privi- leges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination : Charles Todd 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 AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO) , OR UNITED ELECTRICAL, RADIO AND MACHINE WORK- HARRISON SHEET STEEL CO. 87 ERS or AMERICA, or any other labor organization, to bargain col- lectively 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, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain members of any labor organization, or to refrain therefrom. 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 labor organization, or nonmembership therein. HARRISON SHEET METAL CO. Employer. Dated-------------------- By ------------------------------- (Representative ) ( Title) 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. Irving If. Friedman, for the General Counsel. Mr. Irmn H. Weiss, of Chicago, Ill., for Respondent. Messrs. Max Raskin and Harold A. Katz, by Mr. Harold A. Katz, of Chicago, Ill., and Dlr. Charles J Chiakulas, of Chicago, Ill., for the UAW. STATEMENT OF THE CASE Upon a charge filed -on October 1, 1949, by George Ribes, et al., Individuals, and an amended charge filed on April 28, 1950, by United Automobile, Aircraft and Agricultural Implement Workers of America, herein called UAW, the Gen- eral Counsel of the National Labor Relations Board herein called respectively the General Counsel' and the Board, by the Regional Director for the Thir- teenth Region (Chicago, Illinois) issued a consolidated complaint dated May 3, 19550,1 against Harrison Sheet Steel Co:, herein called Respondent, alleging that Respondent had engaged in and was engaging in certain unfair labor prac- tices affecting commerce within the meaning of Section 8 (a) (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act as amended, 61. Stat. 136, herein called the Act Copies of the complaint, the charge, and the amended charge, accompanied by notice of hearing, were duly served upon Respondent, UAW, George Ribes, and the Steel, Metal and Alloy Warehousemen and Handlers' Union, Local 785, affiliated with the International Brotherhood of Teamsters, herein called the Teamsters. On* July 11, 1950, the General Counsel issued certain amendments to the consolidated complaint copies of which were served upon the parties. 'This designation has particular reference to counsel appearing at the hearing on behalf of the General Counsel. 'Oil the same date the Board issued an order consolidating the two cases for the purposes of hearing. 83 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the unfair labor practices the consolidated complaint, as amended, alleged, in substance, that Respondent: (1) From about June 8, 1949, to the date of the consolidated complaint as amended, engaged in a continuous course of interference, restraint, and coercion of its employees in the exercise of the rights guaranteed in Section 7 of the Act by (a) on about September 27, 1949, agreeing to recognize, and thereafter recognizing, the Teamsters as the bargaining agency for its members among Respondent's employees; (b) on September 27, 1949, agreeing to enter into negotiations with the Teamsters for an agreement covering its members on November 1, 1949, executing an agree- ment with the Teamsters requiring membership in that of ganization as, a condition of employment without first using the procedure specified in Sec- tion 9 (e) and Section .8 (a) (3) of the. Act, and since September 27, 1949, refusing to recognize UAW and United Electrical, Radio and Machine Workers of ;America, herein called UE, as the bargaining agents for their members ; (c) about September 29, 1949, conducting an election among its employees for the purpose of selecting a collective bargaining representative wherein Respond- ent limited the choice of representative to the Teamsters only; (d) on or about September 29 and October 7, 1949, soliciting various employees to become mem- bers of the Teamsters and threatening them with reprisals for refusing to do so; (e) on about November 1, 1949, pursuant to negotiations with the Teamsters, granting its.employees a 5 cent an hour wage increase; and (f) on about March 3, 1950,_ by, George Sweeney, its personnel manager, entering into an agreement with the Teamsters for a union-shop election despite the fact that Respondent knew that the Teamsters did not represent the majority of its employees; and (2) on or about June 27, 1950, discharging Charles Todd, and thereafter failing and refusing to reinstate him, for the reason that he joined and assisted UAW. On May 29, 1950, Respondent filed an answer to the consolidated complaint, and to the consolidated complaint as amended. Respondent's ans+er, as amended, adiuitted certain allegations of the consolidated complaint as amended with respect to the nature of its business, but denied that it had engaged in any unfair labor practices. Pursuant to notice, a hearing was held on August 8, 9, 11, 14, 15, 21, and 22, 1950, at Chicago, Illinois, before Horace A. Ruckel, the undersigned Trial Ex- aminer duly appointed, by the Chief Trial Examiner. The General Counsel, Respondent, and UAW were represented by counsel and participated in the bearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues, was afforded all parties. At the conclusion of the hearing the Trial Examiner granted a motion by the General Counsel to conform the pleadings to the proof in formal matters and reserved ruling upon a motion by Respondent to dismiss the complaint. This motion is disposed of by the recommendations hereinafter made. The, parties waived oral argument but were granted until September 6, 1950, to file briefs herein. Subsequently the time within which to file briefs was extended by the Chief Trial Examiner to October 10. On this date the General Counsel and Respondent filed briefs. ,Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is an Illinois corporation having its principal office in Chicago, Illinois, and operating four plants in Chicago and Cicero, Illinois. All these plants are involved in this proceeding. They are sometimes hereinafter referred HARRISON SHEET STEEL CO. 89 to, collectively, as the plant. Respondent at the above plants is now, and at all times mentioned herein has been, engaged in the production and setup of fabricated steel' products. In the course and operation of its business Respondent causes and has continuously caused at all times mentioned herein, quantities of raw materials consisting primarily of sheet steel used by it in the manufacture and processing of its finished products, to be purchased and transported in interstate com- merce fo its Chicago and Cicero plants from and through States of the United States other than the State of Illinois. The `value of the raw materials pur- chased annually exceeds $3,000,000, of which dollar value approximately 70 percent is shipped to its plants from points outside the State of Illinois. In the conduct and operations of its business Respondent causes and has continuously caused at all times mentioned herein, large quantities" of its finished products to be sold and transported in interstate commerce from its plants in Chicago and Cicero, Illinois, into and through States of the United States other than the State of Illinois. The value of its finished products sold annually exceeds $5,000,000, of which dollar value approximately 60 percent is shipped to points outside the State of Illinois. II. THE ORGANIZATIONS INVOLVED United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations ; United Electrical, Radio and Machine Workers of America; and Steel, Metal and Alloy Ware- housemen and Handlers' Union, Local 785 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, are labor organizations admitting to mem- bership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and 'coercion ; assistance to and support of the Teamsters 1. Background Prior to 1949, Respondent had a contract with UE, as the representative of its production and maintenance employees, and with the Teamsters as the repre- sentati^e of its ' tru`ck' drivers, the foriner expiring May 31, 1949.1 Prior to the expiration of its contract UE requested that Respondent enter into' negotiations fora new contract and a 60-day notice was duly served. Preceding the first meeting between Respondent and UE, the Teamsters filed a petition' for a Board election and an election*was held on June 1, 1949, with' only' that organization on the ballot, the UE at the time not being in compliance with Section 9 (f), -(g), and (h) of the Act. . ' I ' The Teamsters failed to receive a majority of votes cast in the election. Shortly thereafter UE again presented its'claim'for'bargaining rights *to Respondent, and the Teamsters demanded that Respondent recognize it in spite of ,the result of the Board election During the lhonth of June 1949, UAW-began actively to organize'Respondent's employees, and late in that month or early in July its representatives similarly deiiianded recognition by Respondents These - de- mands ivere' substantially reiterated by both UE and 'UAW on' about Septem- ber 27; 1949. Thus for 3 'months three different' labor organizations 'were claiming to represent employees of Respondent Case No. 13-RC-680. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Respondent forms the Plan It is admitted that about the middle of June 1949 , during the hiatus created in the labor-management relationship in Respondent's plant following the ex- piration of UE's contract , and assertedly acting at the request of various em- ployees, Respondent created an Employee Representative Plan in which two representatives from each of its four plants were elected to present grievances to management. The election machinery was set up by Respondent and the Plan was explained to the employees by the superintendents of the four plants at meetings of the employees , and the employees urged to select repre- sentatives. The elections were held on company time and property. The representatives thus elected met on various occasions with Respondent's representatives and discussed and adjusted grievances. 3. The Teamsters strike A. D. Sweeney, Respondent's director of industrial relations , testified that the claim of the Teamsters for recognition as representative of Respondent's employees came to a climax during the latter part of September when Fredericks, a representative of the Teamsters , informed him that unless Respondent was willing to meet with representatives of that organization and negotiate a contract they would strike the plant. Sweeney 's reply on this occasion was that since there were two or three unions seeking recognition Respondent would not bargain with any of them until it was certified by the Board. The Teamsters made good its threat of a strike and on Tuesday morning, Sep- tember 27, 1949, posted pickets outside Respondent's plants and stopped truck shipments . Respondent realizing, according to Sweeney , that unless its materials could be moved from one plant to another and to and from the warehouse it would shortly be forced to shut down operations , called together the repre- sentatives under the Plan, described above, and outlined the situation to them. Sweeney summarized it by saying that unless Respondent entered into some kind of an agreement with the Teamsters it would have to suspend operations. At the suggestion apparently of one or more of the Plan 's representatives, Respondent decided to take a poll of the employees. 4. Respondent conducts a poll of its employees The question to be proposed to the employees , according to Sweeney, was whether the employees would rather have the plant shut down or the Teamsters recognized as bargaining representative . Chester Cain , Respondent's executive vice president and production manager, was called into the meeting , confirmed. the position taken by Sweeney , and gave his sanction to the election . He made it clear, however, according to his own testimony as well as that of Sweeney, that regardless of the result of the poll Respondent would not consider it binding upon it, but would make its own final decision as to whether it would bargain with the Teamsters or shut down . Sweeney admitted while testifying that several of the Plant's representatives present asked that UE and UAW should be in- eluded on the ballot along with the Teamsters , and that he replied that the only permission Respondent would grant was a choice between the Teamsters on the one hand and shutting down the plant on the other. - Cain delegated Jerome Schneider , his assistant and son of Respondent 's treas- urer, to accompany representatives of the Plan and to help conduct the poll. The employees were assembled in separate plant meetings by the plant super- intendents where they were addressed by Schneider and representatives of the Plan. At each plant one or more of the employee representatives , in the presence HARRISON SHEET STEEL CO. 91 of Schneider and with his approval, made it clear that the choice before the employees was whether the Teamsters should be recognized or the plants closed down for an indefinite period. At the Kolmar Avenue plant, at least, George Miller, whom the General Counsel contends was a supervisory employee and whom Respondent asserts was only a gang leader, in Schneider's presence stated that the Teamsters was a good union and that the employees should "go along with it." Cain, who attended one such meeting at the Fifth Avenue plant, him- self told the assembled employees that Respondent had agreed with the Plan representatives to take the ballot and that the choice was whether the Teamsters should be recognized or whether, as a result of the picketing, Respondent's plant should close down. 5. The Teamsters is again rejected; Respondent's recognition of the Teamsters The ballots cast by the employees consisted of blank pieces of paper on which the employees were to write "Yes" if they were for recognizing the Teamsters, and "No" if they were against it. When the balloting was completed the ballots were taken to the Fifth Avenue plant where they were counted in the presence of Cain, Sweeney, and Jerome Schneider. The result of the vote was against recognition of the Teamsters. Respondent was not deterred, however, in what had now become a determination to recognize that organization, and in spite of the result of the balloting, on the evening of September 27, wrote the Team- sters, in part, as follows : The Harrison Sheet Steel Company, by its authorized representative, hereby recognizes the STEEL, METAL AND ALLOY WAREHOUSEMEN AND HANDLERS UNION, LOCAL #785, as the sole and exclusive collective bargain- ing agency for all of its members, exclusive of office, clerical, professional, truck drivers, and supervisory employees as defined in the Labor-Management Relations Act, 1947. * * * The Company further agrees that not later than two weeks after this date, specifically October 11, 1949, that it will commence negotiations with the Union for a labor agreement covering its members in the four production plants and that such labor agreement shall include conditional union security clause and check-off provisions without negotiation for its members. Within the next day or so Respondent posted on its bulletin boards the follow- ing notice to its employees : The Company has signed a memorandum agreeing to negotiate a contract with the A. F. of L. covering those of our employees who signed A. F. of L. membership cards. In spite of the fact that there were many employees who felt that we should not have done so, we were forced to take ,matters in our own hands in order to keep the plant operating and you men on your jobs. In keeping with the promise made to you several months ago, we have steadily refused to recognize any union which did not represent an over- whelming majority of the employees. Last Friday and yesterday we refused to recognize the A. F. of L. This morning the Union took the matter from our hands and stopped truck shipments. This left us in a position where we could continue our production only a matter of a few hours. Failure to recognize this strike would mean that all of our plants would be closed for lack of transportation. There was no legal way that the com- pany could stop this. Result would only mean a plant shut down and the loss of your job. - 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We beg of you to stay on your jobs and have faith that the company will not agree to anything -that will not be in the best interest of all of you. 6 Respondent signs a union-shop contract with the Teamsters During the months of October, November, and December, 4949, Respondent negotiated with the Teamsters for a contract. In December such a contract was agreed upon effective as of November 1. Respondent, in the recognition clause, -purportedly recognized the Teamsters as the bargaining agent only 'for those of Its members engaged in production work, including maintenance employees and excluding other categories, and agreed to a 5-cent hourly increase in wages and to other benefits applicable to all employees. It provided, moreover, that all em- ployees who, 'as of the effective date of the agreement, had been employed not less than 30 days, should become and remain members of the Teamsters in good standing, and that any newly hired employee should become a member of the union on the thirty-first day of his employment and should remain such in good standing as a condition of employment. Respondent agreed, upon written au- thorization, to deduct from the first pay of each month union membership dues for the current month. Upon written notice from the union Respondent agreed to dismiss from employment any employee delinquent in his dues. The inclusion of the union-security clause in the contract was not preceded by a union-authorization election as provided for in the Act. 'It was not until March 1950 that Respondent and the Teamsters entered into an agreement for a consent 'election for union authorization. The petition* for 'authority to make a union- 'shop agreement, signed by`Respondent as well as by the Teamsters, contained the statement that "there is no question concerning the representation of the employees'_in the unit described in' the petition," 'a -statement contrary to fact since'bOth UAW and UE, as well 'as the Teamsters, claimed to represent em- ployees. 7. Further support of and assistance to the Teamsters -During the period- following the election of June 1-which resulted' in a rejec- tion -of -the -Teamsters as -a -bargaining- representative, officers and members of -that organization were -active in the plant. Thus Charles Todd, whose subse- quent discharge-is hereinafter discussed, testified credibly that Philip-Folan, a truck mechanic, who prior to the election had urged him to help organize the plant for the Teamsters, -arid George 'Miller, admittedly a - gang leader, both pleaded with Todd after the election to do so. Todd further testified 'that-some- time in 'June, Folan-approached 'him"again while at work- andrequested his assistance in the signing-up' of the'shop for the Teamsters,'wdhich'TOdd- refused to do. During the same month, according to Todd's credited-'testimony,IJim and Bill Hogan, respectively vice' president and president of the Teamsters, not 'employees of Respondent, 'were in the plant on` various occasions 'talking to the employees about the Teamste'rs' and on 'one 'occasion, togetheri with-Miller, ad- "d'ressed a meeting of employees in the paint shop. -Todd further`testified'eredibly ''that in September br-October 1949,Miller'cameto his department and'told him }'and"other employees it"was 'their last chance to join 'the Teamsters unless they "wanted to"lose their seniority-and--'pay' add'itional' dues for -initiation. Neither "Folan'nor'Miller was-called`as'a witness, and 'the 'testimoiiy as to'their activities is uncontradidted in -the record. Todd further' te'stified''thatT'bn`one occasion bin' December"lie observed' the' Hogans 'in the plant, a'ccompahied -by' Miller and -'Pdidn 'talking'td the' employees. I Halton 'Newnan,' L`eslie' Walker, ,'Earl 'Rahle,3 and•'G'eorge' Burden,-'the last named a-group leader, testified credibly that during the fall' of• 11949-(their mem- HARRISON SHEET STEEL CO. 93 bership in the Teamsters was requested by Miller. Burden further testified that Carl Opermann, head of the time study department, a supervisor, told him that Respondent had been forced to recognize the Teamsters and asked him to help persuade the employees to go along with this program. Leslie Walker testified that Louis de Rudder, another group leader, told him that if he did not sign up with the Teamsters he would not have any seniority, that he would find him- self without a job, and that employees who, like Charles Todd, solicited for the UAW, he "understood" would lose their jobs. This testimony was not denied by the group leaders in question. Respondent's defense thereto is solely that it was not responsible for the activities of Miller, de Rudder, or Folan, and that the activities of the Hogans in the plant were not known to management. Conclusions Respondent's entire course of conduct subsequent to the Teamsters ' failure to win the election on June 1 was such as to indicate unmistakably to its em- ployees that Respondent favored the Teamsters over both the UE and the UAW, Assuming that Miller and de Rudder , whose activities on behalf of the Team- sters were widespread , were only group leaders , their activities were none the less attributable to Respondent , inasmuch as they occupied positions which identified them with management in such a way as to cause employees to look to them for guidance regarding Respondent's policies.' It is improbable that activities of such nature and extent as is revealed by this record could have escaped the attention of management's officials, and the undersigned finds that Respondent was well aware of them and tolerated them, as well as the activities of Folan, admittedly a rank-and-file employee , and the Hogans. It is apparent that the Teamsters, having failed to win the adherence of Re- spondent's employees in the June 1 election, increased its efforts in .this respect after the election with the active assistance of Respondent. In spite of the widespread activities of the Teamsters in the plant and the encouragement afforded them by Respondent, Teamsters failed in its objective. During the hiatus which ,existed after the election of June 1, Respondent further interfered with the rights of its employees by forming the Plan, including as representa- tives some who had been members of or sympathetic to one or another of the three unions concerned and by discussing grievances with it. The formation of the Plan, irrespective of whether the idea originated with Respondent , was ap- proved, aided, and used by it and :was itself violative of the Act. In September 1949 the Teamsters , despairing of winning a majority of the employees in competition with the UE and UAW, and Respondent having ex- pressed its unwillingness to recognize the Teamsters until and unless it was certified as the bargaining representative , called a strike and posted pickets at Respondent's gates. At this point Respondent 's desire that its employees be- come members of the Teamsters became a fixed determination to deal with the Teamsters ' despite its rejection by the employees. Accordingly, Respondent used the representatives under the Plan to conduct a vote in its four plants to determine whether they wished the Teamsters to represent them, and thus to obtain color of authority for the Teamsters . Respondent rejected requests of those employees , including Todd, who supported UE or UAW, that the employees be given a choice between all the competing labor organizations, and confined their choice to the Teamsters or no organization. It went further . In meetings held in all its plants, conducted by the Plan 's representatives in conjunction with those of management, it made known unmistakably and in the clearest possible 4 See : Union Twist Drill , Co., 88 NLRB 1361; The Ann Arbor Press, 85 NLRB 946; Sioux City Brewing Company, 82 NLRB 1061. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terms that the choice which the employees were called upon to make was be- tween the Teamsters, on the one hand, and a complete shutdown of the plant on the other. The voting was conducted on company time and property and the results were counted in the presence of Respondent's officials. In spite of the pressure exerted by Respondent, its employees again, and for the second time, rejected the Teamsters. Not dismayed by this result, and in the face of it, Respondent on the same day wrote the Teamsters promising to recognize it as representative for its members and to enter into contract negotia- tions with it. Thus the choice previously given Respondent's employees between the Teamsters and shutting down of the plant, coercive as it was, was no choice whatsoever, The Respondent, it is clear, was determined to recognize the Teamsters in any event and to deal with it regardless of the wishes of its em- ployees whose approval, it is manifest, was sought only for the purpose of cloth- ing Respondent's course of action with the cloak of its employees' approval, no matter how obtained. Assuming that, in the circumstances of September 27, Respondent was faced with a suspension of operations because of the strike of the Teamsters, it has been repeatedly held that such economic disadvantage, whether real or fancied, is no defense to a charge of unfair labor practices.` Respondent's further defense that it recognized the Teamsters for its members only, assuming that such was the case, is equally devoid of merit. It has been held that recognition under such circumstances of a labor organization for its members only is violative of the Act ° Stich, however, was not the case. While it is true that Respondent's letter of September 27 to the Teamsters and the contract which became effective November 1, both speak of recognition of the Teamsters for its members only, Respondent's subsequent course of conduct as well as further provisions of the contract itself negative such intention and demonstrate that, in effect, Respondent recognized the Teamsters as a representa- tive of all Respondent's employees. The wage and other substantive provisions of the contract were applicable to all employees and not merely members of the Teamsters. Moreover, the union-security clauses insured that the Teamsters should be the representative of all the employees. Section 2 of the contract provides that all present employees who have been employed not less than 30 days should become and remain members of the Teamsters in good standing. Section 3 provides the same thing with respect to new employees. The effect of these two,clauses is that membership in the Teamsters is to be coextensive with Respondent's employees. Recognition of the Teamsters as representative of its members only was tantamount to its recognition as a representative of all employees, since, under the contract, all employees were to become members. The granting of union security to the Teamsters constituted per se a violation of the Act inasmuch as it was not preceded by a union-shop election, as provided by the Act By the activities described above Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and interfered with the administration of a labor organization and con- tributed support to it. Such activities are violative of Section S (a) (2) of the Act. B. The dcsciirninatory discharge of Charles Todd Charles Todd came to work for Respondent in 1945. At the time of his dis- charge on June 27, 1950, lie was doing assembly work in the hinge department in s See : Guy F. Atkinson Co. at at., 90 NLRB 143; H. Milton Neuman at al, 85 NLRB 725. See Merrroll-Stevens Dry Dock and Repair Company, 49 NLRB 698. 7 See • Salant & Salant, Inc, 88 NLRB 104. HARRISON SHEET STEEL CO. 95 the Fifth Avenue plant. He joined the UE during the time that it represented Respondent's employees, and from June 1948 until February 1949 was chief stew- ard for the UE, and as such on various occasions handled grievances of employees. In April 1949, according to Todd's testimony, Cain called Todd to his office where he told Todd that he would like to have him assist the Hogan brothers in organiz- ing Respondent's plant for the Teamsters, and Todd told him that he would think it over. Some time after this, as has been related, Todd's support of the Teamsters was solicited by Miller and Folan to whom he gave the same answer he had previously given Cain, and on a second occasion, when approached by Folan, he told the latter that since the employees had voted against the Teamsters he did not care to help in organizing for it. About the same time Todd was approached by a representative of the UAW and he agreed to help organize Re- spondent's employees into that organization. It is admitted that Todd's activities in behalf of UAW were known to Re- spondent. The record indicates that he was ragarded as the foremost exponent of that organization in the plant. He was chosen as one of the eight employee representatives under the Plan, to represent the Fifth Avenue plant. When it was determined to take a poll of the employees as to whether they wished to be represented by the Teamsters, Todd stated in a meeting with Respondent's rep- resentatives, including Sweeney, that in fairness to the employees UAW should be represented on the ballot along with the Teamsters. Sweeney on this occa- sion admittedly replied that the only question to be put to the employees was whether they should accept the Teamsters or have the plant shut down. Todd continued his organizational work on behalf of the UAW during the summer of 1949. Early in September, according to his testimony, Sweeney called him to his office shortly before a scheduled meeting of the Plan's representatives and asked him to discontinue organizing for the UAW, stating that Respondent "could get rid of anybody (it) wanted to." During the month of May 1950, according to Todd's further testimony, he was paged over the loud-speaker system in the plant to answer the telephone. Sweeney was on the other end of the wire. Sweeney told Todd, according to the latter, that he had received a tele- phone call from Jim Hogan who told him that he was "pretty burned up" at Todd because of his organizing activities on behalf of the UAW. Todd told Sweeney to tell Hogan that he did not need to be incensed because he, Todd, had done all the organizing work that he needed to do at the Fifth Avenue plant. Sweeney denied while testifying that he told Todd that Respondent could do anything it wanted to about his job. Sweeney's version of the conversation with Todd concerning Hogan's complaint was that Hogan had objected that Respondent had clamped down on the Teamsters' organizing activity in the plant, but not on Todd's. The undersigned credits Todd's version of these con- versations, particularly since it is consistent with other and admitted assistance which Respondent gave the Teamsters during this period. Cain, called as a witness, did not specifically deny Todd's testimony that he requested Todd to organize for the Teamsters, but stated only that he did not think he had done so. The undersigned credits Todd's testimony in this respect. On about June 14, 1950, Todd was called to the office of Richard Schneider, Respondent's treasurer. Todd testified that Schneider opened the conversation by saying that he was "prepared to make a deal" and offered him a supervisory position if he would "give up the United Auto Workers, CIO, and any thought of organizing for them." When Todd told Schneider that he would have to think over the proposition Schneider, according to Todd, stated that if he, Todd, ever made a promise to Schneider, and double-crossed him, he would kill Todd. Schneider, according to Todd, went on to say that Respondent was prepared to spend $10,000 if necessary to keep the UAW out of the plant. Two days later, 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on Friday, June 16, Todd telephoned Schneider from his home with Leslie Walker, a fellow employee, listening at the receiver. Todd had previously told Walker that Schneider had threatened his life and that he wanted a witness to his telephone conversation with Schneider. According to Todd's testimony, which Walker corroborates, Todd told Schneider that he would not accept Schneider's offer and Schneider told Todd to come to Schneider's office the following Monday. On Monday, June 19, Schneider, according to Todd, opened the conversation by saying, "So you don't want to accept my offer," and when Todd said that he did not, Schneider went on to tell Todd that henceforth he "had better watch" himself in the shop for he would be watched every minute of the day while on the job, and that at the first "crooked move" Todd made he would be out on the street. Todd replied that he intended to watch himself and to stay on his job, and had no thought of doing otherwise. This terminated the conversation. Schneider's testimony was in sharp contradiction to Todd's. This is Schneider's version : On June 13, 1950, he received an anonymous telephone call, apparently from outside the plant, from someone who referred to Todd by an opprobrious term and asked him to tell Todd to "watch out," that "we" were out to "get" him. On the following day he telephone Todd, described the anonymous call, and asked Todd what it related to and if he could help him. Todd said there was nothing he could tell Schneider. He told Todd that he would like to have him pay Respondent the sum of $25 or $30 from each pay check on the sum of $1,000 which Respondent had lent Todd about 2 years before. A balance of $100 remained on the loan. Todd had been making regular payments of $10 from each pay check, and was not in arrears. He was afraid Todd might be harmed or quit his employment without paying Respondent the balance of $100. Todd said that he could not increase his payment so he suggested that Todd work for Respondent after hours as a salesman, as several other employees were doing, which would double his earnings. Todd said he would think it over. A day or so later Todd telephoned him 8 and, referring to the job of salesman, said he was turning it down because he preferred to "stick here with the boys." He told Todd to come to his office within the next day or so, which Todd did. During the ensuing conversation he repeated his suggestion that Todd take a job as salesman and renewed his request for larger payments from Todd, both of which proposals Todd again rejected. He did not offer Todd a job as supervisor or say that Respondent was prepared to spend $10,000 to keep UAW out of the plant. Ile did not threaten to kill Todd. The undersigned does not find it necessary to resolve the question of credibility thus presented. His conclusions with respect to Todd's subsequent discharge rest on other evidence. Todd was discharged by Respondent on June 27, 1950, allegedly for engaging in a fight with one Fred Barti. Barti first came to work for Respond- ent the day before, as an unskilled worker in the material shipping department. According to Todd's uncontradicted testimony, which the undersigned accepts as true, Barti sometime during the day of June 26 carne into the department where Todd worked, introduced himself, and stated that he was lonesome and wanted to make friends, to which Todd replied that Barti would become better acquainted in a few days. This was the entire conversation. On the following day, at ap- proximately 10: 30 a. in., Barti for the second time approached Todd and com- plained that he had been told that Todd had referred to him as a "jerk." Todd denied that lie had done so, stating that he had barely become acquainted with Barti, upon which, without any further provocation, Barti hit Todd, scattering over the floor the contents of a pan which he was carrying in both hands. Todd 8 This is the conversation which Walker testified he listened to. HARRISON SHEET STEEL CO. 97 thereupon clinched with Barti , but did not strike him . They were separated by the receiving clerk in Todd's department„ and both were immediately called to Sweeney's office. There Barti complained , in effect, that he was being mistreated as a new employee apd that Todd had struck him Todd denied that he had struck Barti and claimed that Barti had struck him. Sweeney told the two men to go home for the remainder of the morning and to come brick to see him in the afternoon and that in the meantime he would investigate the affair. Both To Id and Barb returned to see Sweeney that afternoon , and were discharged. Sweeney, according to Todd, told him that he had interviewed a number of em- ployees and could find no evidence as to who was at fault , but was therewith terminating Todd's employment until he, Todd, had gained additional evidence to prove that he had not started a fight with Barti . Todd returned to the plant 2 days later to receive his pay check but was never thereafter reemployed. Sweeney testified that upon receiving a report that there had been an alterca- tion between Barti and Todd, he interviewed various employees but found only one eyewitness, Halion Newman . Sweeney admitted that Newmaq told him that he had seen Barti strike Todd , but had not seen Todd strike Barti . Newman's testimony, on the contrary , was that Sweeney did not speak to him until 1 or 2 days later when he was called to Sweeney 's office where a lawyer for Respondent was present. The undersigned accepts Newman 's testimony in this respect as being in accord with the facts. Not only did the only eyewitness of the affair , Newman, exonerate Todd from striking Barti, but there is no testimony in the record that Sweeney was so informed by anyone , excepting Barti himself, although Sweeney was told by several persons that they had seen Barti and Todd in a clinch after a blow had been struck Sweeney admitted that, so far as he knew , Todd had never pre- viously been engaged in a fight while in Respondent's employ, and there is no evidence of this in the record or that during his 5 years of employment Todd was anything other than a satisfactory employee. Barti was hired on June 2 6, according to Sweeney, as the result of a request from the material shipping department foreman for an additional employee. On his application form Barti gave two references to previous employers which Respondent did not check before hiring him. Sweeney testified credibly that such a check was not usually made in the case of an unskilled 'employee such as Barti until after he had been -hired . Captain Barnes, head of the Chicago police labor detail, called as a witness , testified that he had been unable to serve a warrant on Barti, issued at Todd's request , that when he checked the two refer- ences given by Barti he found that Barti had never been employed by either of them, and that he could not find anyone at the address listed by Barti on his employment application who had ever heard of him . Nor did Barti appear as a witness. Newman testified that during the afternoon following the Todd-Barti incident, Milbratz, his group leader, told him to leave the matter as it was and not to "stick ( his) neck out." Milbratz admitted while testifying that he made this statement, in substance. Conclusions The General Counsel contends that the record supports a finding that Todd was "framed" by Respondent, and that 13arti was introduced into the plant by the Teamsters and Respondent for the express purpose of provoking Todd and furnishing an excuse for his discharge. The record does create a suspicion, per- haps a strong suspicion, that this was the case. But conclusions must be based on something more than a suspicion, even a strong one, and the undersigned be- 953841-52-vol 94-8 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lieves the evidence insufficient to support the finding contended for by the General Counsel. The facts of the Todd-Barti incident, however, coupled with other facts in the case, do support a finding, which the undersigned makes, that Respondent discharged Todd because of his activity on behalf of UAW. ` It is abundantly clear from the record, and it has been found, that Respondent, after the Teamsters failed to win the election in June 1949, aided and supported it in its campaign to win Respondent's employees. Todd was urged by several of Respondent's group leaders, as well as by Cain, its production manager, to leave the UAW and support the Teamsters. He refused to do so, and instead became spokesman for the UAW point of view in the Plan which Respondent formed in violation of the Act. It has been found that Sweeney on one occasion asked Todd to discontinue his activity on behalf of the UAW because the Teamsters were objecting to it and in May 1950, the month preceding his discharge, Sweeney in- directly threatened Todd with the loss of his job if he continued his activity. Instead, Todd openly allied himself with the UAW and became its acknowledged champion, in sharp conflict with Respondent's determination to aid and support the Teamsters and to negotiate with it as representative of its employees. Although it is not found that Respondent itself contrived the Todd-Barb incident, it is found that Respondent utilized it to furnish a basis for Todd's discharge. Admittedly, Respondent did not have any evidence that Todd orig- inated the dispute with Barti or struck Barti, other than the latter's own state- ment which was contradicted by Todd Newman, the only other eyewitness to the altercation in its inception,-admittedly told Sweeney that the only blow he had seen struck was by Barti. Sweeney discharged Todd, as has been found, before talking with Newman. If the undersigned were to accept, however, Sweeney's testimony that he talked with Newman on the afternoon of the dispute and of Todd's and Barti's discharges, rather than a day or so later as has been found, then it follows that Sweeney discharged Todd with evidence in his possession, and the only evidence lie had on the point that Barti struck Todd and that Todd did not retaliate. Barti had been employed by Respondent as an unskilled laborer only 1 day before his encounter with Todd. The latter had been em- ployed for 5 years as a skilled employee, and it is not contended that he was any- thing other than a capable and trustworthy one with no previous record of quarrelsomeness. The undersigned believes and finds that Respondent, to placate the Teamsters and to further Respondent's policy of dealing with that organization, and that organization only, amply demonstrated by the record, determined to rid itself of Todd, the leader of the opposition to the Teamsters. In so doing Respondent violated Section 8 (a) (3) of the Act, and thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section III, above, occurring in connection with the operations of Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that Respondent has engaged in certain unfair labor practices, it will be recommended that it take certain affirmative action designed to effectuate the policies of the Act. HARRISON SHEET STEEL CO. 99 It has been found that Respondent assisted and suppoited the Teamsters, recognized it as the exclusive bargaining agent of its employees, and entered into an unlawful contract with it. It will therefore be recommended that Re- spondent withdraw and withhold recognition from the Teamsters and cease giving effect to its contract with that organization effective November 1, 1949, and to any modification, extension, supplement, or renewal thereof, unless and until the Union shall have been certified by the Board. Nothing in these recom- mendations, however, shall be deemed to require that Respondent vary or aban- don those wage, hour, seniority, or other substantive features of its relations with its employees established in performance of said contract, or to prejudice the assertion by the employees of any rights they may have had under such agreement. It has been found that Respondent discharged Charles Todd on June 27, 1950, because of his union membership and activity. It will therefore be recom- mended that Respondent offer Charles Todd immediate and full reinstatement to his former or a substantially equivalent position,' without prejudice to his seniority and other rights and privileges and make whole the said Charles Todd for any loss of pay he may have suffered by reason of Respondent's discrimina- tion against him. Consistent with the Board's new policy in the method of computing back pay10 it will be recommended that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the discriminatory discharge to the date of a proper offer of rein- statement. The quarterly periods, hereafter called "quarters," shall begin with the first day of January, April, July, and October. Loss of pay shall be deter- mined by deducting from a sum equal to that which he would normally have earned for each quarter or portion thereof, his net earnings,' if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other gnaf'ter. It will also be recommended that Respondent make available to the Board, upon request, pay- roll and other records to facilitate the checking of the amount of back pay due. The scope of Respondent's illegal conduct as found above discloses a purpose to defeat self-organization among its employees. Because of Respondent's unlawful conduct and its underlying purpose the undersigned is convinced that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from Respondent's conduct in the past. The preventive pur- poses of the Act will be thwarted unless the recommendations are coextensive with the threat. In order, therefore, to make effective the interdependent guarantee of Section 7, to prevent a recurrence of unfair labor practices and thereby minimize industrial strife which burdens and obstructs commerce and thus effectuate the policies of the Act, the undersigned will recommend that Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. ° In accordance with the Board 's consistent interpretation of the term , the expression "substantially equivalent position " is intended to mean "former position whenever possible and if such position is no longer in existence then to a substantially equivalent position " See: The Chase National Bank o f the City of New York, San Juan, Puerto Rico Branch, 65 NLRB 827. 'IF. W. Woolworth Company, 90 NLRB 289. 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 elsewhere, which would not have been incurred but for this unlawful discrimination, and the consequent necessity of his seeking employment elsewhere . Crossett Lumber Company, 8 NLRB 440 Monies received for work performed upon Federal , State , county, municipal or other work-relief projects shall be considered earnings . Republic Steel Corporation V. N. L. R. B, 311 U. S. 7. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, United Elec- trical, Radio and Machine Workers of America, and Steel, Metal and Alloy Warehousemen and Handlers' Union, Local 785 of the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By contributing support and assistance to Steel, Metal and Alloy Ware- housemen and Handlers' Union, Local 785 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Charles Todd, thereby discouraging membership in a labor organization, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The unfair labor practices aforesaid are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] AMERICAN BROADCASTING COMPANY (KGO-TV) and NATIONAL Asso- CIATION OF BROADCAST ENGINEERS AND TECHNICIANS , SAN FRANCISCO CHAPTER, PETITIONER. Case No. 2O-KC-1214. April 30, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Harry V. Bamford,, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Pursuant to the provisions of Section 3 (b) of the Act, the Board. has delegated its powers in connection with this case to a three- member panel [Chairman Herzog and Members Murdock and Styles].. 1 The Employer moved at the hearing to dismiss the petition on the ground that many of the employees in the proposed unit are supervisors . Inasmuch as the exclusion of those individuals found to be supervisors does not substantially affect the makeup of the unit requested , we find that the Employer ' s motion to dismiss is without merit. Accordingly , we deny the motion . Compare American Broadcasting Company, Inc. (KECA-TV), 93 NLRB 1410 . The supervisory status of the employees in dispute is discussed in paragraph 4, infra. 94 NLRB No. 26.