West Ohio Gas Co.

In the Matter Of WEST OHIO GAS COMPANY and UNITED UTILITY WORKERS OF AMERICA (CIO) Case No. 8-C-1892.-Decided February 13,1948 - Mr. Thomas E. Shroyer, for the Board. Bentley, Neville, Cory & Boesel, by Messrs. Paul 0. Boesel and C. if. Cory, of Lima, Ohio, for the respondent. Mr. C. C. Smith, of Cleveland, Ohio, for the Union. 5 DECISION AND ORDER On November 25,1946, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that the respondent, West Ohio Gas Company, had engaged in and was engaging in certain unfair labor practices, and recommending that it` cease and desist therefrom and take certain affirmative action, as set- forth in the copy of the Intermediate Report attached hereto. There- after the respondent filed exceptions to the Intermediate Report and a supporting brief. On November 4, 1947, the Board, at Washington, D. C., heard oral argument in which the respondent participated; the Union did not appear. - The Board has reviewed the rulings made by the Trial Examiner- 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 respondent's exceptions and supporting brief, the contentions advanced by the respondent at the oral argument, and the entire record in the case, and hereby adopts the findings, conclusions and recommendations of the Trial Examiner, with the following addi- tions and modifications : 1. The Trial Examiner found that the respondent's part in the: preparation and circulation of the withdrawal statement constituted interference with the freedom of choice of the employees in -violation of Section 8 (1) of the Act. We agree. We do not believe, as did the Trial Examiner, that it was incumbent upon the -respondent to, 76 N. L R. B., No. 27. 179 781902-48-vol. 76-13 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD invite Smith, the Union's international representative, to the meeting of December 27, 1945, to which the respondent invited only the local union negotiating committee. Inasmuch as the respondent had dealt primarily with the local committee, we are of the opinion that the respondent was within its rights in calling in the local negotiating committee to discuss the directive of the War Labor Board. However, the respondent did not deal frankly and openly with the union com- mittee at this meeting. Cory, the respondent's attorney, testified that the Regional War Labor Board had advised him that the respondent and the Union could agree on a further extension of the escape clause deadline, if they so desired. It does not appear, however, that Cory disclosed this information to the union committee. On the contrary, the respondent advised the union committee that time was growing short. Cory's failure to explain to the union committee that the par- ties could extend the escape clause deadline is significant. Further, a representative of the respondent told the union committee that those union members who failed to withdraw from the Union by January 1, 1946, would have their dues checked off for a year. It is obvious, however, that the War Labor Board's directive was only a recommen- dation, the effectiveness of which would necessarily depend upon the willingness of both parties to incorporate such recommendations in a contract, a fact which apparently was not made clear to the Union. Moreover, the existing contract between the respondent and the Union was to expire on January 26, 1946. Thus, even had the Union and the respondent agreed to incorporate the recommendation of the War Labor Board into their existing contract, the most that could have happened to a non-withdrawing union member was that his dues would be checked off for only 26 days. In the light of these circumstances, we believe that the respondent misinformed the union members with respect to the urgency of withdrawals of membership in the Union and the consequences of a failure to withdraw, in order to influence them; to withdraw from the Union. We are further persuaded that the misinformation thus promulgated by the respondent had a direct bearing on, the circulation of the withdrawal statement. But the respondent's incorrect conduct did not end with the actions previously described. It is undisputed that, at Superintendent War- ren's suggestion, employee Gargis circulated the withdrawal state- ment on company time, with the use of the company truck. The state- ment in the dissenting opinion that Gargis "availed himself of com- pany time and facilities" does not fully reflect the respondent's active role. It is an interference violative of Section 8 (1) for an employer to intrude itself into the matter of resignations from a union and to, WEST OHIO GAS COMPANY 181 arrange for a withdrawal petition to be circulated at its expense? The fact that the respondent told Gargis also to circulate a second petition which could be signed by those employees who desired to remain in the Union does not alter the nature of the respondent's earlier conduct.' 2. The Trial Examiner found that the wage increases -granted by the respondent on January 30 or '31, 1946, were motived by a desire to forestall reorganization of the Union, and constituted conduct viola- tive of Section 8 (1) of the Act. We agree with this conclusion of the Trial Examiner. Employed Gargis, an officer of the Union and spokesman for'the employees, threatened that the men would go back into the Union if the respondent did not grant overtime pay as ordered by the War Labor Board.3 Moreover, Vail, the respondent's presi- dent, when the employees were discussing with him the question-of a wage adjustment, read them Smith's letter calling a meeting to discuss revival of the Union. Thus, it appears that the'respondent was gen- uinely concerned lest its employees should revive the Union, and that this concern was a persuasive factor in granting the wage increases 4 It is well established that an employer's act of granting or announcing benefits (although previously determined upon bona fide) for the purpose of causing its employees to accept or reject a representative for collective bargaining is a violation of Section 8 (1) of the Acts 3. The Trial Examiner found that, in March 1946, Superintendent' Warren stated to Sherry, an applicant for a job, that so far as he, Warren, was concerned, there would never be a union around any company where he worked. The Trial Examiner concluded that this statement interfered with, restrained, and coerced the employees iii violation of Section 8 (1)'of the Act. We agree with this conclusion. This statement must reasonably be viewed as a thinly veiled threat of economic reprisal against any employee who engaged in union ac- 1 Matter of Ames Harris 'Neville Company, 67 N. L. R. B. 422, and Matter of Van de Kamp's Hollant-Dutch Bakers, Inc., 56 N. L. R. B. 694, enforced 152 F ( 2d) 818 and 154 F ( 2d) 828 (C C. A. 9). ' We have held in the past that it is a violation of the Act for an 'employer to conduct an election among Its employees to determine whether or not they desired to be represented by a union , even though the employees were given a choice of endorsing or rejecting the union. Matter of Wire Rope Corporation of America, Inc., 62 N L. ' R. B. 380, and Matter of Van de Kamp's Holland-Dutch Bakels, Inc., supra. 3 Gargis said to Superintendent Warren, "Are you going to adjust the wages, or are you going to let us go back in the union and let them 'get it for us?" 4 The respondent does not attempt to justify the wage increases on the ground that it was simply 'carrying out the provisions of the War Labor Board directive. It could hardly do so under the facts, for the directive merely provided for time and one-half for all hours over 40 hours per week. While Gargis had only demanded compliance with the directive , the raises actually granted varied from $5 to $20 per month In, determining the wage raises , the respondent's pay roll was scrutinized and consideration was given to those who had been with the respondent a long time , but merit was the chief factor in determining the amount to be received by each employee. Thus, the raises were not limited to overtime pay as directed by the War Labor Board. G Matter of Hudson Hosiery Company, 72 N. L. R B. 1434, 1436-37, and Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678. 182 DECISIONS OF,NATIONAL LABOR, RELATIONS BOARD tivity.6 The claim that Warren's statement should be treated as an isolated expression of personal opinion, not reflecting the respondent's policy and not binding upon it, must be rejected in view of other acts of interference and the discriminatory discharge found herein.7 4. The Trial Examiner found that the respondent had discrimina- torily discharged employee Ralph Engle on January 16, 1946, because of his union activities, in violation of Section 8 (3) of the Act. We agree. While Engle had not been particularly active on behalf of the Union prior to January 1, 1946, it is clear that he was instrumental in attempts to stir up interest in the Union during the early part of January 1946. He wrote a letter to Smith, the Union's international representative, and later met Smith at a hotel in Lima to discuss re- vival of the Union. As a result of this meeting, Smith agreed to send a letter to all former members of the Union calling a meeting for January 20, 1946. Engle talked to many of his fellow employees and attempted to stir up their-interest in the proposed meeting. It is equally clear that the respondent had knowledge of Engle's activities. Smith mailed his letters on-January 15,1946, and employee Gargis received his copy at noon on January 16, when he went home for lunch. Gargis returned to the plant and showed the letter to Superintendent Warren. Later that same afternoon, Warren dis- charged Engle. Moreover, sometime between January 14 and 16, Warren called employee Snyder to his office and interrogated Snyder with respect to Engle's activities. The respondent contends that Engle was discharged because of his inefficiency. It is significant, however, that he was given no prior warning that his inefficiency would cause his discharge. It is also noteworthy that Engle had been complimented on his work prior to his discharge. Moreover, when Engle asked the reason for his dis- charge, he was given an obviously synthetic excuse.8 6 Our colleagues, in their dissenting opinion finding no threat of economic reprisal here, cite Matter of Atlanta Metallic Casket Company, 75 N. L. R. B. 208. In that case, we held that a supervisor 's statement that the day the C. I. O. "came in was the day he was leaving" did not violate the Act. The Atlanta Metallic Casket case is readily distinguishable from the instant case because here Superintendent Warren's statement that there would never be a union around any company where- he worked meant that he would take such affirmative action as might be necessary to prevent a union. from securing a foothold in the respondent 's organization, not that he would leave if a union came in. Our dissenting colleagues also express the opinion that Warren 's remarks were protected free speech . However, the respondent did not raise the defense of free speech at any time during the proceedings. 7 We also note that the respondent never announced a policy of neutrality toward collective bargaining nor assured its employees that they were free to join or not to join the Union as they chose. 9 Warren testified that, at the time of the discharge , he told Engle that changes in per- sonnel were being made and that Engle was included . Warren admitted , however, that he had not contemplated any changes in the storeroom, where Engle worked. Since Engle was the only employee discharged, the reason given to him by Warren was not the true one. WEST OHIO GAS COMPANY 183 The respondent's hostility to the Union is clearly shown by its con- duct discussed above. In view of Engle's attempt to revive the Union, the respondent's knowledge of these activities and the respondent's demonstrated hostility to the Union, we agree with the conclusion of the Trial Examiner that Engle was discriminatorily discharged be- cause of his attempts to revive interest in the Union. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National La- bor Relations Board hereby orders that the respondent, West Ohio Gas Company, Lima, Ohio, and its officers, agents, successors, and-as- signs shall : 1. Cease and desist from : (a) Discouraging membership in United Utility Workers of Amer- ica (CIO), or in any other labor organization of its employees, by dis- charging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employ- ment or any term or condition of their employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, to join or assist United Utility Workers of Amer- ica (CIO), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mu- tual 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 Ralph Engle immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority and other rights and privileges; (b) Make whole Ralph Engle for any loss of pay he may have suf- fered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal to the amount he would nor- mally have earned as wages during the period from January 16, 1946, the date of his discharge, to the date of the respondent' s offer of rein- statement, less his net earnings during said period; (c) Post immediately at its plant in Lima, Ohio, copies of the notice attached to the Intermediate Report, marked "Appendix A," 9 and mail This notice, however, shall be, and it hereby is, amended by striking from the first para- graph thereof the words "Recommendations of a Trial Examiner " and substituting in lieu thereof the words "A Decision and Order." In the event that this Order is enforced by decree of a Circuit Court of Appeals , there shall be inserted before the words "Decision and Order" the words "Decree of the United States Circuit Court of Appeals Enforcing." 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD copies thereof to all employees who do not regularly report to the plant in the course of their duties. Copies of said notice, to be furnished by the Regional Director for the Eighth Region (Cleveland, Ohio), shall, after being duly signed by the respondent's representative, be posted and mailed by the respondent immediately upon receipt thereof, and those posted shall be 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 any other material ; (d) Notify the Regional Director for the Eighth Region (Cleveland, Ohio) in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. MEMBERS REYNOLDS and GRAY, dissenting in part : We do not agree with the majority insofar as it finds violative of the Act (a) the respondent's activity in connection with the withdrawal petitions; (b) the, granting of wage increases; and (c) Superintendent Warren's remarks to Sherry. The record shows that notwithstanding the inactive status of the Union as the employees' bargaining representative, the respondent, in accordance with its statutory duty, arranged a meeting to bargain with the Union on the basis of certain War Labor Board recommendations. At this meeting, the members of the Union committee, instead of at- tempting to bargain, stated that they intended to withdraw from the -union and that a majority of members desired to do likewise 10 In response to a request by the Union committee as to how the members ,could effectuate their desires, the respondent suggested that the com- mittee give the employees an opportunity to sign petitions indicating either their withdrawal from, or their adherence to, the Union. The committee adopted this suggestion and dictated two such petitions to a company stenographer. While the committee member who solicited .the employees to sign the petition of their choice, also availed himself of company time and facilities, no showing was made that this was contrary to established practice. In our opinion, it was ill-advised of the respondent to have become involved in the matter, but we are not convinced on this record that its conduct amounts to a violation of the Act. Whether or not the respondent was discriminatorily motivated in granting the employees a wage increase is a matter on which reasonable io while perhaps the interpretation of the escape clause in the war Labor Board recom- mendations , given by the respondent's attorney at the Union's request, was erroneous, it had no bearing on the underlying reasons which prompted the decision of the Union committee and the members to disband the Union . Indeed, for all practical purposes the Union was defunct before the meeting at which the interpretation was given. WEST OHIO GAS COMPANY 185 men might differ. However, in view of the fact that the Union had recently disbanded for reasons not attributable to the respondent, that the former union members were continuing to press their demand for a wage increase through a committee of the whole, that the wage increase was announced shortly after a majority change in the composition of the respondent's Board of Directors, and that wage increases were given to the unorganized employees as well as to those in the unit formerly represented by the Union, we are persuaded to accept the respondent's explanation that the wage increases were attributable to a change in policy initiated by the new and recently elected members of its Board of Directors, and not to any unlawful motive n Finally, in interpreting Superintendent Warren's discussion of unions and strikes with Sherry, we find no "veiled threat of economic reprisal" and consequently his remarks must be protected as free speech 12 INTERMEDIATE REPORT Dlr. Thomas E. Shroyer, for the Board. Messrs. Bentley, Neville, Cory & Boesel by Messrs. Paul O. Boesel and C. H. Cory, of Lima, Ohio, for the Respondent. Mr. C. C. Smith, of Cleveland, Ohio, for the Union. STATEMENT OF THE CASE Upon an amended charge filed by United Utility Workers of America (CIO), herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated September 13, 1946, against West Ohio Gas Company, herein called the Respondent , alleging that the Respondent had engaged in and was engaging in, unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, together with notice of hearing thereon, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that since about December 1, 1945, the Respondent had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by (a) soliciting and encouraging its employees to abandon the Union; (b) granting wage increases to its employees for the purpose of discouraging an attempt to revive the Union; and (c) urging and persuading its employees to refrain from aiding, becoming, or` remaining members of the Union. The com- plaint further alleged that on January 16, 1946, the Respondent discharged, and thereafter refused to reinstate, Ralph Engle, because he had engaged in concerted activities and joined and assisted the Union. The Respondent's answer, dated September 25, 1946, denied the commission of all unfair labor practices. "Unlike the majority, we do not believe that the implied threat of a former Union member that unless a raise was granted the employees would rejoin the Union was an operative factor in the respondent's decision to favor all its employees with wage increases. '' Cf. Matter of Atlanta Metallic Casket Co., 75 N. L. A. B. 208. -186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice a hearing was held at Lima, Ohio, on September 30 and October 1, 1946, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board and Respondent were represented by counsel and the Union by a representative. All participated in the hearing. Full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the ,Board's case, the Respondent moved to dismiss the complaint. The motion was denied without prejudice to the right to make a similar motion at the close of the hearing, At the conclusion of the Respondent's case, the Respondent renewed its motion to dismiss the complaint. Ruling thereon was reserved. It is denied for the reasons hereinafter given. A motion by Board's counsel to conform the pleadings to the proof as to dates, names, and spellings, was granted. All the parties argued orally before the undersigned but declined the opportunity to file briefs or proposed findings and conclusions. From his observation of the witnesses and upon the entire record in the case, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is an Ohio corporation with its principal office and place of bus- iness in Lima, Ohio. It is engaged in the sale and distribution of fuel gas in Lima, Ohio, and within a 35-mile radius of that city. The Respondent's sales are in excess of $1,000,000 annually, and it numbers among its customers Lima Loco- motive Works, Lima Tank Depot, Westinghouse Manufacturing Company, and numerous other large industries. The Respondent's answer denied that it was engaged In commerce within the meaning of the Act, but at the hearing, the Respondent stipulated that for the purpose of this hearing only, it was engaged in commerce within the meaning of the Act' II. THE ORGANIZATION INVOLVED United Utility Workers of America (CIO), is a labor organization, admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; the discriminatory discharge 1. The resignations from the Union The Union was certified in January 1945 after it had won an election ordered by the Board.' On May 29, 1945, pursuant to negotiations, the Union and the Respondent entered into a contract covering the period from January 26, 1945, to January 26, 1946, on matters on which they were able to agree, but matters of union security, wages and hours, a reopening clause, and the duration of a pro- bationary period were referred to the War Labor Board. After June 1945, the members exhibited a lack of interest in the Union, a quorum failing to attend meetings thereafter and dues falling into arrears 8 Around the end of November 1 It was also stipulated that Lima Locomotive Works, to which the Respondent furnishes gas, is engaged In commerce within the meaning of the Act. 2 Matter of West Ohio Gas Company, 59 N. L. R. B. 1195. 1 Only two members were paid up in July, WEST OHIO GAS COMPANY 187 1945, Alfred Mumaugh, president of the Union's local at the Respondent's plant, wrote to the War Labor Board requesting withdrawal of the pending case. The Union representative in Cleveland objected to the withdrawal, however, and the matter proceeded to a panel hearing on December 11, 1945. These facts were known to the Respondent. Under date of December 19, 1945, the Regional War Labor Board issued its recommendations, among which were those for mainte- nance of membership and check-off.` On December 26, 1945, the Respondent notified the bargaining committee of the Union of the receipt of the recommendations and requested them to come to the office for a meeting the next day. On December 27 the bargaining committee, composed of Union President Alfred Mumaugh, Financial Secretary Paul Gargis, and Committee Members Frank Warmuth and Charles Hamilton, met with Presi- dent Vail, Vice-President Frank Pringle, General Superintendent W. J. Warren, and Charles Cory, the Respondent's attorney. Vail read the recommendations through. The recommendations contained an escape period, expiring on January 1, 1946, incident to the maintenance of memberships Vail asked what the com- mittee wished to-do about the escape clause, commenting that the time was get- ting short. One of the committee members requested an explanation of that clause, and it was explained that if they did not withdraw within the escape period their dues would be deducted from their salaries for another year. Gargis said he did not know about the others but he was getting out. The other com- mittee members expressed like intentions. Gargis said that all the members were delinquent and that the majority wanted to disband as they were dissatisfied. Pringle checked a list of union members against the pay roll and found that there were 23 members out of 42 in the unit. None of the 23 was in good standing. Mumaugh asked what procedure should be followed to resign. Vail explained that they would have to prepare a written resignation form for signatures. A company stenographer was called in, and Gargis and Mumaugh began dictating, and Cory suggested that there be a reference to the War Labor Board recom- mendations. After it was dictated, Vail said he thought they had not gone far enough and that he wanted them to dictate one for the signature of those desiring to stay in the Union. This suggestion was adopted and a second form was dic- tated. Gargis, a gas fitter, had the use of one of the Respondent's trucks and, with the approval of Superintendent Warren, he used the truck on December 28 to get the signatures of absent employees and out-of-town employees. Gargis presented both forms to the members and told them to sign the one they wanted to. All the members, except one who could not be located, signed to withdraw from the Union. 2. The discharge of Ralph Engle Ralph Engle was employed by the Respondent on December 4, 1944, on main- tenance work. On February 1, 1945, Engle was given the job of storekeeper.° As such it was his duty to disburse supplies and fittings at the window on requi- sition, to inspect and uncrate merchandise, such as stoves, some of which also had to be assembled, and to keep records of receipts and disbursements of fittings and merchandise, periodically checking his supplies and making purchase requi- sitions when necessary. He was also required to make daily reports. These duties be performed in the storeroom on the first and second floor of a building It recommended no change in wages but recommended time and a half for.all hours worked over 40 hours. 6 Cory testified that he was advised by the War Labor Board that the parties were free to agree on an extension of the escape period. ° He was the only employee in the storeroom. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in which the only other room was a laboratory.- - Twice a day he would pick up orders from, and deliver reports to, the dispatcher in another building, and occasionally he would leave the storeroom to get oil for employees or to pick up parcel post or get a drink. Employees working in town, especially foremen of the maintenance crews, usually got their supplies in the morning before starting to work or after lunch before returning to the job, but employees came for sup- plies through the day, and it was Engle's job to see that they were supplied. His hours were 8 a. m. to 5 p. m. with an hour off for lunch from 12 to 1 o'clock. Engle joined the local at the Respondent's plant as soon as he was employed, transferring his membership from another local of the Union On December 28, 1945, he signed the withdrawal from the Union when Gargis came to his house in the Respondent's truck and presented the two forms z ' A few days later, Engle in discussion with employees expressed his opinion to be that the Respondent had made up the forms for signature. He also met Union Representative Smith, on January 12, 1946, with a view to reorganizing the Union. As a result, Smith agreed to send a letter to all who had been mem- bers of the Union, announcing a meeting for Sunday, January 20, 1946. Engle asked a number of the employees if they were coming to the meeting. Between January 14 and 16, Superintendent Warren called Loren Snyder, a meter repair room employee, into his office and asked him whether Engle had said that "the Company had got up a paper to kick out the Union." Snyder re- plied affirmatively.8 At noon on January 16, 1946, Gargis went home and received the letter which Smith had written pursuant to his agreement with Engle. In this letter Smith referred to the fact that the employees were entitled to 2 hours extra pay per week as a result of the War Labor Board recommendations 0 and announced a meeting on January 20. Gargis returned to the plant and, referring to Smith's letter, told Warren that according to the War Labor Board the employees should be receiving time and a half over 40 hours and they were not getting it. He then asked Warren if he was going to adjust the pay or whether he was going to let the employees go back into the Union and let the Union get it for them. Warren replied that he would take the matter up with the proper authorities and see what he could do.10 , On the afternoon of January 16, Warren decided to discharge Engle, and be- tween 3: 30 and 4 p. m., he had Engle's separation slip and pay check prepared. Between 4: 40 and 5 p. m., Warren went to the storeroom, told Engle he was discharged and that at 5 o'clock he should remove his personal belongings and surrender the keys. Engle asked why he was discharged, and Warren told him he had nothing against him personally, that he was making changes in personnel, and that Engle was included in them. The separation slip given to Engle stated "change of personnel" as the cause of discharge. Warren testified on cross- examination that, although he was making personnel changes, none was contem- plated for the storeroom. 7 Engle was home sick at the time. Gargis came during working hours. 8 Warren denied having talked to Snyder about Engle . Snyder had not been a union member and impressed the undersigned as a credible witness. The undersigned finds por- tions of Warren 's testimony to be evasive and not altogether frank. His denial is not credited. 0 The War Labor Board recommended time and a half for time worked over 40 hours and the employees were on a 44-hour week. 10 Warren placed this incident as occurring on January 17, but Gargis placed it on the 16th, and there was evidence tending to corroborate Gargis' testimony that it occurred on January 16. WEST OHIO GAS COMPANY 189 - Because he failed to receive, in his check, pay for a week's vacation to which he was entitled, Engle returned to the plant on January 17 and asked Vice-President Pringle if he was entitled to vacation pay and why he was discharged. Pringle said that he did not know whyEngle was discharged and told Engle to-see Warren about both matters 11 Because Warren was away, Engle did not see him that day nor did he attempt to thereafter. 3 Subsetluent events Warren spoke to Vail following Gargis' demand for pay adjustment, and Vail told Warren to have "the boys" come up, setting the time at 1 p in. on January 18. Warren so notified Gargis on January 17. Although the Respondent apparently expected the committee to appear, Gargis brought all the available employees, 21 in number, at the appointed time to the office, where Vail and Pringle were present. Gargis said that the employees were not interested in the Union or union activity and that all they were interested in was a little more money. The Union and the employees' resignation therefrom were discussed, and Vail read and discussed the War Labor Board recommendations and also read the letter from Smith announcing the meeting of January 20. Vail then explained that these were five new directors ' and that there was to be a meeting of the board of directors. He said that he would not promise that he could get them any more money but promised that he would take the matter up with the directors. On about January 30 or 31, Vail called the employees together and announced an increase for all employees. The raises ranged from $5 to $20 per month and were effective, for all except the office employees and department heads, retro- actively to January 15. In March 1946, Warren interviewed William Sherry, an applicant for a job. In the course of the interview, Sherry remarked that his brother-in-law was working at the Westinghouse plant. At the time, there was a strike at that plant. Warren asked if Sherry had worked there, and when Sherry replied negatively, Warren commented that strikes "were raising hell around town" and added that as far as he was concerned there would never be a union around any company where he worked: B. Conclusions 1. Respecting Engle's discharge Warren testified that his reason for discharging Engle was because, in his opinion, Engle was not taking care of the storeroom and was spending too much unnecessary time outside of the storeroom visiting around the plant. Warren testified that two employees had complained that Engle had not given prompt enough service. These two were identified as Huffman and Gargis, who also testified to having made such complaints. Huffman's complaints related prin- cipally to his inability to get materials before 8 o'clock, starting time in the morn- ing, or during the noon lunch hour. Huffman and Gargis both testified to having complained of having to wait for materials while Engle would finish writing a report. Gargis' complaint and Huffman's last complaint to Warren were each made a month or more before Engle's discharge. Engle testified that the only 11 At the hearing the Respondent conceded Engle's right to vacation pay and offered to pay it. 11 There were nine members, altogether, on the board of directors. 13 The foregoing is based on Sherry's credited testimony. Warren admitted that he had commented on the trouble strikes were causing in Lima, but denied saying that no company be had anything to do with would ever have a union. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time Warren ever complained to him was about 3 or 4 months prior to his dis- charge when Huffman was trying to get some material at 12:45 p. in. while Engle was on his lunch hour. As Huffman was apparently on an emergency job, Warren told Engle to take care of Huffman. Warren testified that on the day of Engle's discharge he noticed Engle three times visiting in the meter repair room, once in the morning and twice in the afternoon, and that on the last occasion he decided to discharge Engle. lzeept for the last time, which he placed at about 3: 30 p. in., he did not specify the time. As previously stated Engle had occasion at least twice a day to go to the dispatcher's office. One of the routes which Engle might follow in going from the storeroom to the dispatcher's office was through the meter repair room. It does not appear that Engle spent any appreciable time visiting on any of these occasions or that anyone was inconvenienced by Engle's absence from the store- room, and Warren did not speak to him with reference thereto" Although Warren testified that he had had to speak to Engle no less than five times during the time the latter was in charge of the storeroom about serving the men promptly, no details were given as to what was said on these occasions. Since Engle, whose testimony the undersigned found reliable, testified that he was criticized by Warren only once and that that was when he was requested to open the store- room before the end of his lunch hour, the undersigned infers that, if Warren did speak to Engle as many times as he testified, he did so in general terms and not in such a way that Engle would regard it as criticism or warning. Both prior to and subsequent to the one criticism testified to by Engle, Warren had complimented Engle on his work.'s In view of the absence of any adequate warn- ing, Warren's hostile attitude toward unions in general, the timing of Engle's discharge in relation to the Union's reorganizational efforts, the fact that Warren gave Engle a pretended reason for his discharge and did not give him the reason which Warren testified was the cause for Engle's discharge, and all the circum- stances of the case, the undersigned concludes and finds that Warren discrimina- torily discharged Engle because of his union activities. 2. Respecting interference, restraint, and coercion Although the Union had already become inactive prior to the meeting of De- cember 27, 1945, and the respondent's motives at that meeting may have been sincere, the undersigned believes that the Respondent assumed an unnecessarily active role in the preparation and circulation of the withdrawal statement. Knowing that the local union officers had attempted to withdraw the case which was before the War Labor Board and that the Union representative in Cleveland had caused the case to proceed, the Respondent, if it had been entirely impartial, would have invited that representative to attend the December 27' meeting. Viewed in the light of the subsequent events, the Respondent 's part in the prepara- tion and circulation of the withdrawal statement is found by the undersigned to be interference with the freedom of choice and action of the employees con- templated by Section 7 of the Act. Likewise, the Respondent's prompt action in taking up the demand for more pay-which demand was coupled with an implied threat that , if a salary ad- justment were not made, the Union would reorganize-is regarded by the under- 14 It was not unusual for Engle to stop to say a few words to the employees in the meter repair room. Warren's office was near the meter repair room and he was likely familiar with Engle's habits. 1 15 Engle had also been complimented by the sales manager on the manner in which he was taking care of the merchandise. WEST OHIO GAS COMPANY 191 signed as motivated by a desire to forestall reorganization of the Union espe- cially in view of the timing of Engle's discharge , the fact that Gargis was seeking only what the War Labor Board had recommended whereas the Re- spondent gave substantial raises, the absence of any reassurance that the em- ployees were free to become or remain members of the Union , and all the circum- stances pointing to a desire on the part of the Respondent to free itself of the Union. It is therefore found that the Respondent , by assisting in the preparation and circulation of the statement of withdrawal from the Union, by discriminatorily discharging Ralph Engle on January 16 , 1946, by granting an increase in pay to its employees for the purpose of forestalling reorganization of the Union, and by Warren's statement of hostility toward unions which he made to Sherry, has in- terfered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the 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 Having found that the Respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has violated the Act by aiding in the preparation and circulation of the statement of withdrawal from the Union, by discharging Ralph Engle, by granting salary increases to its employees to fore- stall reorganization of the Union, and by making a statement of hostility to unions. Upon the entire record the undersigned infers and finds that the Respondent by its foregoing coercive course of conduct, and particularly by the discriminatory discharge of Ralph Engle , has displayed an attitude of opposition generally to the purposes of the Act. Because of the Respondent's unlawful conduct and the underlying purposes manifested thereby, the undersigned is convinced and finds that the unfair labor practices which it has committed are persuasively related to the unfair labor practices proscribed by the Act and that the danger of the commission in the future of any or all the unfair labor practices listed in the Act is to be anticipated from the Respondent's conduct in the past. The pre- ventive purposes of the Act will be thwarted unless the remedy is coextensive with the threat. It will therefore be recommended that the Respondent cease and desist not only from the unfair labor practices herein found but also from in any other manner interfering with , restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. The evidence indicates that some of the employees in the unit which had been represented by the Union have stations out of town or at the business office apart from the plant and that such employees are seldom at the plant. It will be recommended, therefore, that, in addition to posting the notice hereto attached and marked "Appendix A," the Respondent mail a copy of said notice to each employee who does not regularly report to the plant in the course of his duties. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since it has been found that the Respondent discriminated in regard-to the hire and tenure of employment of Ralph Engle, it will be recommended that. the -respondent offer him immediate and full reinstatement to his former or substan- -tially equivalent position,1e without prejudice to his seniority and other rights and privileges, replacing anyone subsequently placed in Engle's position. It will .further be recommended that the Respondent make Ralph Engle whole by pay- ing him an amount equal to that which he normally would have earned as wages from the date of the discrimination against him to the date of the offer of rein- statement, less his net earnings 17 during said period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following-: CONCLUSIONS 9g , LAW 1. United Utility Workers of America, affiliated with the Congress of Indus- trial Organizations,-is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Ralph Engle, thereby discouraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of -Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting ,commerce within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that West Ohio Gas Company, its officers, agents, successors, and assigns shall: 1. Cease anGI desist from : (a) Discouraging membership in United Utility Workers of America (CIO), or any other labor organization of its employees by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to the hire and tenure of employment or any term or condition of employment of any of its employees ; ' (b) In any other manner interfering with, restraining, or coercing its em- ployees, in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist United Utility Workers of America (CIO), or any other 10In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position " is intended to mean "former position wherever possible, but if such position is no longer.in existence, then to a substantially equivalent position ." See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. 17 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the Respondent , which would not have been incurred but for his unlawful 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. WEST OHIO GAS COMPANY 193 labor organization, to -bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to Ralph Engle immediate and full reinstatement to his former or substantially equivalent position,-'s without prejudice to his seniority and other rights and privileges, replacing anyone subsequently placed in Engle's position ; (b) Make whole said Engle for any loss of pay he may have suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from January 16, 1946, the date of his discharge, to the date of the Respondent's offer of reinstatement, less his net earnings " during said period ; (c) Post immediately at its plant in Lima, Ohio, copies of the notice attached hereto and marked "Appendix A" and mail copies thereof to all employees who do not regularly report to the plant in the course of their duties. Copies of said notice, to be furnished by the Regional Director for the Eighth Region (Cleveland, Ohio), shall, after being duly signed by the Respondent's representative, be posted and mailed by the Respondent immediately upon receipt thereof, and those posted shall be maintained by, it for sixty (60), consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Eighth Region (Cleveland, Ohio), in writing, within ten (10) days from the date of the receipt of this Intermediate Report, of what steps the Respondent has taken to comply herewith. It is further recommended that, unless on or before ten (10) days from the date Of"the receipt of this Intermediate Report, the Respondent notifies said Regional Director in writing that it will comply with the said recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or coun- sel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant-to Section 203 38: of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or pro- ceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further provided in said Section 203.39, should any party desire permission to argue orally before the Board, request therefor must be " See footnote 16, sup? a. " See footnote 17, supra. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. 'Dated November 25, 1946. APPENDIX A JAMES R. HEMINGWAY, Trial Examiner. NOTICE TO ALL EMPLOYEES 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 em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITED UTILITY WORKERS OF AMERICA (CIO), or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection. WE WILL orFER to the employee named below immediate and full rein- statement to his former or substantially equivalent position without preju- dice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as a result of the discrimination. Ralph Engle 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 organ- ization. WEST OHIO GAS COMPANY, Employer. By ------------------------------- (Representative ) (Title) Dated ----------- ---_--__ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.