Tidewater Iron & Steel Co., Inc.

In the Matter of TIDEWATER IRON & STEEL COMPANY, INC. and AMERICAN FEDERATION OF LABOR, PASSAIC COUNTY, NEW JERSEY DISTRICT Case No. 0-511.-Decided November 2, 1938 Soap Iron and Metal Industry-Interference, Restraint , and Coercion: warn- ing employees not to attend union meeting ; requiring overtime work in order to interfere with attendance at union meeting ; offering of wage increase to induce employees to renounce union-D iscriminat ton : discharge 's ; refusal to reinstate ; charges of , not sustained as to three persons-Rem statement Ordered-Back Pay: awarded. Mr. William Maslow, for the Board. Mr. George I. Marcus, of Hackensack, N. J., for the respondent. Mr. Seymour Simon, of counsel to'the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by American Fed- eration of Labor, Passaic County, New Jersey District,, the National Labor Relations Board, herein called the Board, by Elinore M. Her- rick, Regional Director for the Second Region (New York City), issued its complaint dated January 10, 1938, against Tidewater Iron & Steel Company, Inc., Passaic, New Jersey, herein called the respond- ent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint as amended at the hearing pursuant to notice pre- viously served upon the respondent, alleged in substance that the respondent had intimidated and coerced its employees to discourag:a their union activity; that it had discharged eight named employees z 'The record shows that the labor organization involved is Hod Carriers ' Building and Common Laborers' Union of Ameiica, Local No 472, herein called the Union Michael Watson, Henry illuriay, William Smith, Ernest Mobley, Thomas Wright, Baxter Walker, Governor Simpkins, and Will Jackson 9 N. L. R. B., No. 56. 624 DECISIONS AND ORDERS 625 because-of their union activities and membership; that it had refused reinstatement to five of these employees; and that although it had reinstated three of the • named employees -- it had discriminated against them in the division of available work because of their union activities. Copies of the complaint, notice of hearing thereon, no- tice of postponement of hearing, and notice of continuance of hear- ing were duly served upon the respondent and the Union. On Jan- uary 19, 1938, the respondent filed its answer, and at the hearing, its amended answer, in which it denied the allegations with respect to the unfair labor practices, and averred that the employees named in the complaint were laid off because of lack of work. The respondent also denied discrimination against the three employees who had been reinstated. Pursuant to notice, a hearing was held at Passaic, New Jersey, commencing on January 27, 1938, before George Bokat, the Trial Examiner duly designated by the Board. The Board and the re- spondent were represented by counsel and participated in the hear- ing. Full opportunity to be heard; to examine and cross-examine witnesses, and to introduce- evidence bearing, on • the issues 'was afforded all parties. At the conclusion of the respondent's case, the-attorney for the Board moved to strike from the amended complaint paragraph 3 (c) which alleged discrimination against three named employees in the distribution of available work, on the ground that, as to these in- dividuals, the Board failed to prove a prima facie case. He also moved to conform the pleadings to the proof. The Trial Examiner granted both motions.' His rulings are hereby affirmed. The Board has reviewed the rulings of the Trial Examiner on other motions and on- objections to . the admission of evidence and • finds that no prejudicial errors were committed. The rulings are hereby affirmed. On March 31, 1938, the Trial Examiner filed his Intermediate Re- port, copies of which were duly served upon the parties, finding that the respondent had engaged in certain of the unfair labor practices charged in the complaint and that ,it had discriminatorily discharged Michael Watson, Henry Murray, and William Smith. He further found that Ernest Mobley and Thomas Wright had- been laid off because 'of lack of'work. He recommended that the respondent offer reinstatement with back pay to Henry Murray, Michael Watson, and William Smith. Thereafter the respondent filed its exceptions to the Intermediate Report. Upon notice duly served on the respondent and the Union, a hearing for the purpose of presenting oral argument on the excep- tions - was held before the Board at Washington; D. C., on September S Baxter walker. EGovernor Simplon,;, and Will Jackson 626 NATIONAL LABOR RELATIONS BOARD 29, 1938. The respondent was represented by counsel and participated in the oral argument. The Board has considered the respondent's exceptions to the Intermediate Report and finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, a New Jersey corporation with its office and place of business in Passaic, New Jersey, is engaged :in the purchase and sale of scrap iron and metal. For the 6-month period ending on De- cember 31, 1937, approximately 5 per cent of the respondent's pur- chases, amounting to 1,143,275 pounds, were made outside of New Jersey. Sixty to sixty-five per cent of,the respondent's sales are made i o the Schiacone-Bonomo Corporation, herein called Bonomo, of Jer- sey City, New Jersey. The scrap iron and metal sold to Bonofno is loaded at the respondent's dock in Passaic, New Jersey, upon barges furnished by the purchaser, and shipped to'the Bonomo dock in Jer- sey City, New Jersey. These sales are made f. o. b. the respondent's dock. Ninety-five per cent of the scrap sold by the respondent to Bonomo is shipped to foreign countries. The remaining 35 to 40 per cent of the respondent's sales are made within New Jersey. The respondent normally employs from 17 to 22 men. II. THE ORGANIZATION INVOLVED International Hod Carriers' Building and Common Laborers' Union of America, Local No. 472, is a labor organization affiliated with the American Federation of Labor, admitting to its membership employees of scrap-iron and metal yards in New Jersey, including the employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Inter_ f erence, ,restraint, and_ coercion During the week of October 4, 1937, union handbills announcing a "monster meeting" of all workers in scrap-iron yards in New Jersey on Monday night; October 11,-1937, were distributed in the respond- ent's yard. On the day of the union meeting, Alex Shapiro, the respondent's president, asked William Smith, the yard- foreman, and James Cook, one of the oldest employees in point of service, to warn the employees not toq attendthe meeting that night. -Shapiro,,denied making this request, and Cook denied receiving it -or,- so instructing the men. However, we find, as several of the employees, including. Smith, testified, that the men, were told by Smith and Cook not to ,DECISIONS AND ORDERS 627 attend the meeting. Since no reason was shown for Smith and Cook to notify the men on their own initiative , it may reasonably be in- ferred that they acted pursuant to the respondent 's instructions and we so find. On the night of the union meeting the respondent 's employees were ordered to work an hour or an hour and a half overtime . The re- spondent contends that the employees were kept overtime because of the requirements of its business . The evidence shows that the re- spondent is charged with demurrage on barges furnished by Bonomo, if the barges are not loaded within a specified period. There is no evidence , however, that overtime work on October 11 was necessary or, indeed, that any overtime work was necessary in order for the barge which was then being loaded to sail on October 14, the date after which the demurrage charges commenced . Furthermore, it is diffi- cult to reconcile the respondent 's position that the men were kept overtime because of the press of work with its contention that four of the men who had been discharged shortly prior to the night of October 11-two of them that morning had been discharged because of lack of work. We find that the respondent required his employees to work overtime on October 11 in order to interfere with and dis- ,courage their attendance at the union meeting. Despite the respondent's efforts to discourage and interfere with their attendance, 13 employees were present at the union meeting, and 12 signed cards authorizing the Union to bargain collectively for them. On October 12, the day after the meeting, Alex Shapiro ascertained by inquiries among the men which of them had attended. - On the same day he told Melvin Fairclough that if the employees joined the Union either he or his brother, Ebby Fairclough, both crane opera- tors, would be discharged as the respondent could not afford to pay union wages to both men. On Saturday , October 16 , 1937, Alex Shapiro asked Smith to call n meeting of the employees the next day and offer them "a proposi- tion" if they would renounce their union membership . On the morn- ing of Sunday, October 17, Cook appeared at Smith's home and told Smith that Shapiro had directed him to aid Smith in calling the men together, and that he had a definite offer to relay to the men. Cook notified the employees , and that afternoon a meeting, attended by several of them, was held in his home. At this meeting, Cook announced that Alex Shapiro had told him to offer the men in- creases in wages to 45 cents and 50 cents an hour if they would give up their union affiliation and sign a contract. The employees ap- parently rejected the offer since no further action was taken at that meeting. - 134008-39-vol rx--41 giiiiBQ 628 NATIONAL LABOR RELATIONS BOARD About noon on Monday, October 18, 1937, Alex Shapiro called the employees together in the yard and restated Cook's offer of the pre- vious day. Some of the men pointed out that to accept this offer would create difficulty with the Union, as several of the employees had already signed union authorization cards. At the end of the meeting, Alex Shapiro is reported to have said, "Let it go like it is till we can see further." Both Cook and Alex Shapiro denied the statements attributed to them. Cook testified that he felt the situation in the yard was intolerable because some of the employees belonged to the Union and some were unaffiliated. He accordingly called the meeting, not at the request of Alex Shapiro, but on his own initiative, in order to induce the employees to act as a single group in joining the Union or opposing its organization. He nevertheless admitted suggesting that the men might ask the respondent for an increase in wages if they withdrew from the Union. Alex Shapiro testified that Cook had no authority from the respondent to call the meeting or to make any offers, and that at the October 18 meeting he merely announced that whether the men joined the Union was immaterial to him, his only interest being to avoid a strike. According to Shapiro, he fur- ther told them that if a pending unionization of all the scrap-iron yards in New Jersey was successful, they would automatically re- ceive a raise. However, the evidence clearly shows that Cook was one of the men appointed by Alex Shapiro to instruct the employees not to at- tend the union meeting. Several of the employees testified that Cook asserted he carried an offer from Alex Shapiro. Further, several of the employees testified that the offers made by Cook at the October 17 meeting and by Alex Shapiro at the October 18 meeting were prac- tically identical. Because of these circumstances we find that at the meeting of October 17, Cook, acting for the respondent, made an offer of a wage increase to induce the employees to renounce the Union. In finding that Shapiro made the same offer at the yard meeting on October 18, we are impressed by the testimony of Carol Buggs. Although Buggs attended the union meeting and signed a card, he was not laid off and left the respondent's employ in December 1937 upon friendly terms, to take a better job. We find that the respondent by the acts above set forth, has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The discharges Michael Watson was employed by the respondent in September 1936, and was promoted to the job of barge trimmer in March 1937. During the week of October 4, 1937, he distributed the handbills DECISIONS AND ORDERS 629 announcing the union meeting on October 11. During this week Alex Shapiro jokingly referred to Watson as "the walking delegate," and it is clear that he was aware of Watson's union activities. On October 9, 1937, Watson was laid off. On October 11, he attended the union meeting and signed a membership application card. The barge trimmer is charged with the duty of keeping material of inferior quality from being loaded upon the barges. The respond- ent contended that Watson was laid off because Bonomo had com- plained that objectionable scrap had been loaded and had insisted that the respondent's barge trimmer be punished by being laid off for a few days. On cross-examination, however, Meyer Shapiro ad- mitted that Watson was not discharged- because' of the Bonomo com- plaint,-but simply because the respondent "wanted to'lay him off for a few days." Meyer Shapiro, the respondent's treasurer and the official who laid Watson off, told Watson at that time that he would send for him in a few days. Watson, however, was never called back to work. In- stead, the respondent instructed Fred Herrin, a truck helper, in the performance of Watson's duties and appointed Herrin to replace Watson as the barge trimmer. The respondent maintained at the hearing that if it had recalled Watson, it would have been compelled to discharge Herrin as there was no other work in the yard to which the latter might be transferred. We do not believe that concern over Herrin's status was the reason for the respondent's failure to recall Watson. Herrin himself ad- mitted he was not as good a barge trimmer as Watson. Alex Sha- piro admitted that Watson was a good barge trimmer and that Herrin was inexperienced when given Watson's position. Furthermore, Meyer Shapiro, on direct examination, testified that in determining which of two men to lay off, it was the respondent's policy to retain the employee who was the most competent. We find that although the respondent may have had cause to lay Watson off for a few days, its failure to reinstate him was because of his union activities. By failing to reinstate Michael Watson, the respondent has discriminated with respect to his hire and tenure of employment, thereby discouraging membership in the Union and in- terfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. To understand the reasons given by the respondent for the remain- ing discharges, the nature of the respondent's business must be exam- ined. Commencing in September 1937,, the respondent bought more prepared, and less unprepared, scrap. This required fewer shearer operators and helpers to cut the steel. Also, the respondent reduced its purchases from peddlers who furnished for, the most part unpre- 630 NATIONAL LABOR RELATIONS BOARD pared steel, and increased its purchases from dealers who furnished prepared steel mostly delivered in their own trucks, thus necessitat- ing the employment by the respondent of fewer truck drivers and helpers. Henry Murray was hired by the respondent in April 1936, as a truck helper, and later became a truck driver. On Monday, October 11, he found that the truck he usually drove had a flat tire. There- upon, Alex Shapiro told him to take the day off. That evening Mur- ray attended the union meeting, and signed a union authorization card. On Wednesday, October 13, Murray applied for work and was told there was none. He returned on Thursday, October 14, when Alex Shapiro told him, "If it was not for the union, you would be working today." Baxter Walker, who at the time of the hearing had been reinstated, was present during this conversation and corrobo- rated Murray's testimony as to Shapiro's statement. The respondent assigned two reasons for Murray's discharge. First, it contended that he was discharged because he had been in- volved with Luther Buggs in the stealing of some metal in September 1937. Luther Buggs was discharged immediately after the theft was reported. Alex Shapiro's explanation that Murray was not dis- charged until more than a month after the theft was discovered be- cause the respondent had a "couple of jobs" for Murray to finish is not impressive, especially in view of his admission upon cross-exam- ination that he still considers Murray a satisfactory employee : Q. Murray was a good man? A. Yes. Q. You are willing to reinstate him now, aren't you? A. I would sooner have him than anybody else. The record clearly shows, and we find, that Murray's discharge was not because of his alleged theft of metals. The respondent claimed as the second reason for Murray's dis- charge that there was no work for him to do. The evidence shows that after Murray's discharge the truck which he usually operated was used only in emergencies, and that the truck was not licensed in 1938. The respondent offered these facts, as well as the general de- cline of available work resulting from the change in September 1937 in the character of its operations, to show that Murray was dis- charged because of lack of work for him to perform. Meyer Shapiro testified that in determining which drivers to lay off, the respondent considered the territories covered by the drivers since all of them might not be familiar with the particular places to which they might be sent. However, the respondent did not contend that Murray was laid off because he might have difficulty in locating places to which he might be sent. DECISIONS AND ORDERS 631 Another factor considered, Meyer Shapiro testified, was the type of trucks the respondent intended to continue in use, because, he claimed, all the men could not efficiently drive all the trucks. There was no showing that the respondent's trucks do not all operate alike. Nor was it claimed that Murray could not drive all the trucks efficiently. In the absence of such proof, it is a reasonable assumption that Mur- ray, an experienced truck driver, could operate any of the respond- ent's trucks. The respondent's time record establishes that from March 29, 1937, until the date of his discharge, Murray worked approximately 190 hours more than Ben Thorpe, another truck driver. Cook's testi- mony that Thorpe was not a steady driver is the only probable ex- planation of why Thorpe worked fewer hours than Murray. Yet the time record shows that after Murray's discharge, Thorpe worked 46 hours during the week of October 16, 391/2 hours during the week of October 30, 331/2 hours during the week of November 6, 34 hours during the week of November 13, 151/2 hours during the week of November 20, 13 hours during the week of November 27, 43 hours during the week of December 11, 45 hours during the week of Decem- ber 25, and 27 hours during the week of January 1. We cannot recon- cile the respondent's claim that it laid off Murray, a steady employee, because of lack of work, and the fact that it continued to employ Ben Thorpe, who in previous months had not been employed as steadily as Murray, and who, as the evidence shows, had not even worked dur- ing the 9 days previous to Murray's discharge. As we noted above, on October 12 Alex Shapiro ascertained which of the employees had attended the union meeting. Murray's testi- mony concerning Shapiro's statement on October 14 that Murray was not working because of his union membership was credibly corrobo- rated by Walker. Moreover, it is significant that Murray was the only truck driver for the respondent who attended the union meeting of October 11. Although Murray may have been laid off on October 11 because of lack of work, we find that the respondent refused to reinstate him on October 14, when he applied for work because of his union activities. We find that the respondent, in refusing to reinstate Henry Murray, discriminated in regard to his hire and tenure of em- ployment, thereby discouraging membership in the Union, and by said refusal the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. William Smith was employed in 1933 or 1934 as a general laborer. About a year later he was made yard foreman and given an increase in salary. He attended the meeting on October 11 and signed an 632 NATIONAL LABOR RELATIONS BOARD application card. Smith testified that on the morning of October 18, 1937, immediately after Governor Simpkins had been laid off, Alex Shapiro called him and said "you attended that meeting too didn't, you." When Smith answered that he had, Shapiro said "you go home too."' As Smith started away, Shapiro told him to leave the keys. Smith's applications on several occasions for rein- statement have been refused. The respondent offered numerous reasons for Smith's discharge. Alex Shapiro testified that Smith often came to work intoxicated on Monday mornings and had to be sent home for the rest of the day, and sometimes the following day, to recuperate. The respondent's time record indicates, however, that from the middle of February until his discharge, Smith worked a full day on every Monday, ex- cept legal holidays, and every Tuesday, except September 7, 1937, on which day three-quarters of the men did not work. Since the evi- dence establishes that one of the reasons assigned by Alex Shapiro for Smith's discharge is false, we feel the truth of the other reasons offered by Alex Shapiro is open to doubt. Another reason given by Alex Shapiro for Smith's discharge was that with the decline in the metal trade, it became unnecessary to utilize one employee to check the loads that peddlers delivered or to supervise the work of the men in the yard. By dividing the work between Shapiro and Maxie Bickoff, foreman of the metal yard, the respondent was able to eliminate Smith's job. The respondent fur- ther claimed that it could find no other work for Smith as the drivers objected to taking him on the trucks for personal reasons, that he was too old to work around the yard, and that he was not capable of trimming the barges. The evidence shows that the drivers objected to having Smith as a helper. However, the respondent offered no evidence to support its claim that Smith was too old to perform work in the yard. As we have noted above, he was employed as general laborer 3 or 4 years before his discharge. In 1934 or 1935 he was promoted to the position of foreman. Evidently at that time he was not too old to do general work in the yard satisfactorily, especially in view of the fact that the respondent promoted him instead of General Manuel, Ebby Fairclough, or James Cook, each of whom had worked for the respondent longer than Smith. Since in 1934 and 1935 Smith's work in the yard warranted his being made foreman, we doubt that in 1937 he was so old that he was incapable of doing the same work satisfactorily. The respondent's decision that Smith could not trim barges was based on an unsatisfactory barge-trimming job that Smith had done a few weeks previous to his discharge when, in an emergency, he had assisted Watson. - The evidence shows that DECISIONS AND ORDERS 633 Smith had volunteered to trim the barge and that the work had been done hurriedly. Furthermore, Watson testified that Smith was a better barge trimmer than Herrin, the man who replaced Watson. The ' fact that Herrin had less experience than Smith as a barge trimmer lends support to Watson's testimony. If the respondent had sincerely attempted to find a new job for Smith it could have assigned him to the barge after Watson was laid off. Other reasons given for Smith's discharge were that Smith de- manded bribes to pass metal into the yard and that he could not get along with the men. The respondent, however, knew about these shortcomings during the latter part of September or earlier. Meyer Shapiro testified that during the latter part of September he and his father decided to lay Smith off because of all the reasons given above,=but Smith was not laid off until October 18 because the re- spondent was busy during that period. Yet, during that period, the respondent was laying off some men, it claimed, because of lack ,of work 4 Meyer Shapiro explained that Smith was retained while others were laid off because in addition to his regular duties he was doing some "particular work." The only description we find in the record of the "particular work" Smith was doing was his as- signment to clean up the yard. Certainly any of the men laid off before Smith could, have done that "particular work" as well as Smith. That in view of these circumstances Smith was not dis- charged until October 18, and that the drunkenness charge given by the,respondent as the reason for Smith's discharge was obviously un- true indicate, we think, that the reason for his discharge was not lack of work. Furthermore, since Alex Shapiro offered to reinstate Smith when there was work available, it is apparent that Smith's shortcomings in accepting bribes, his difficulty with his fellow em- ployees, and his inability to do the work in the yard were not com- pelling reasons for his discharge. We find that by discharging William Smith the respondent has discriminated with respect to his hire and tenure of employment, thereby discouraging membership ili the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Ernest Mobley and Thomas Wright were hired in April and Sep- tember 1937, respectively. Both were shearer helpers; both attended 4 Baxter Walker was laid off on October 9; Henry Murray, on October 11; and Thomas Wright and Ernest Mobley, on October 12 The respondent claimed that these four em- ployees were laid off because of lack of work In addition, the respondent's time record indicates that Ben Thorpe worked only 1S hours from October 9 to October 1 8 , Fred Herrin did not work on October 14, 15, or 16; Charlie Dobson, Ernest Leverett and John Wright did not work on October 14; Louis "K" did not work October 15 . The record does not show why these men did not work on the above-named dates. 634 NATIONAL LABOR RELATIONS BOARD the union meeting on October 11; both were laid off on October 12. Wright was called back to work on December 28, 1937, and Mobley on December 29, 1937. Smith testified that on October 12 Shapiro, asked him if Mobley and Wright had attended the union meeting. When told they had, Shapiro said "lay them off for today." Subse- quently, Smith found out the men had been discharged and when he asked Shapiro about them the latter said, "Did I not tell you that if they went to that meeting they would be fired?" The respondent's contention is that these men were laid off be- cause of lack of work and that they were laid off before other men because they had no seniority. This contention would have great weight were it not for the circumstances under which these em- ployees were laid off. John F. Kelly, who filed the charges in this matter in the name of the American Federation of Labor, testified that in November or December 1937, when he interviewed Alex Shapiro about the discharges, Shapiro said that the men had been discharged for stealing. Shapiro, at that time, said nothing about laying the men off because of the lack of work. Carol Buggs testi- fied that shortly after the discharges, Alex Shapiro told him that he had discharged some of the men because he did not know whether they would work if the respondent "did not accept the Union." In reaching the conclusion that Mobley and Wright were not laid off for business reasons, we are impressed with the fact that all the men who- were discharged had attended the union meeting, that Mobley and Wright were laid off on the very next day, and that at the time they were laid off the respondent knew that they had attended the union meeting. By discharging Ernest Mobley and Thomas Wright, the respondent has discriminated with respect to their hire and tenure of employ- ment, thereby discouraging membership in the Union and inter- fering with, restraining, and coercing its employees in the: exercise of the rights guaranteed in Section 7 of the Act. Baxter Walker, a shearer helper, hired in March 1937, was laid off on October 9, 1937, and reinstated on November 1, 1937. He attended the union meeting on October 11, and signed an authorization card. The respondent contended that Walker was laid off because of lack of work, and that he was chosen for the lay-off because he had no seniority and was unmarried. Although Walker's case is not free from doubt, we do not think the evidence establishes that he was laid off because of his union activity or membership. Governor Simpkins, a shear operator, was laid off on the morning of October 18, 1937, and rehired on October 21, 1937. Will Jackson, also a shear operator, was laid off on October 19, 1937, and reinstated on October 21, 1937. Both of them attended the union meeting and DECISIONS AND ORDERS 635 signed cards. There is nothing in the record to indicate that these men were laid off because of their union activity or association. We find that the evidence does not sustain the allegations in the amended complaint that Walker, Simpkins, and Jackson were dis- ,charged or otherwise subject to discrimination because they joined or assisted the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that 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 Mid the free flow of commerce. V. THE REMEDY In addition to ordering the respondent to cease and desist from its =unfair labor practices, we shall order that Michael Watson and Henry Murray be offered reinstatement to their former positions, and that they be given their share in the distribution of available work. Since the respondent, because of the change in the character of its business, claims that it has abolished the position of yard fore- man, we shall order that if William Smith is not reinstated to his former position he be given work in the yard that he is capable of performing, and be given his share of available work. We shall further order the respondent to make Michael Watson, Henry Mur- ray, and William Smith whole for any loss of pay they have suffered by reason of the respondent's unfair labor practices by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 5 during said period. And we shall order the respondent to make Thomas Wright and Ernest Mobley whole for any loss of pay they have suffered by reason •of their respective discharges by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to December 28 and 29, 1937, respec- tively, the dates of their reinstatement, less his net earnings 5 during said period. 8 By "net earnings" is meant earnings less expenses , such as for transportation,- room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Ames tca, Lumber and Sawmill Workers Union, Local 2590, 8 N L R B. 440. 8 See footnote 5, saps a. 636 NATTON'AL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the proceeding, the Board makes the following : CONCLUSIO N S OF LAW 1. International Hod Carriers' Building and Common Laborers" Union of America, Local No. 472, is a labor organization, within the meaning of Section 2 (5) of the Act. 2. 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. - 3. By discriminating in regard to the hire and tenure of employ- ment of Michael Watson, Henry Murray, William Smith, Ernest Mobley, and Thomas Wright, and thereby discouraging membership, in the Union, the respondent has engaged in and is engaging in an unfair labor practice, within the meaning of Section 8 (3) 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. 5. The respondent has not discriminated in regard to hire or tenure of employment of Baxter Walker, Governor Simpkins, and Will Jackson, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, Tidewater Iron & Steel Company, Inc., Passaic, New Jersey, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) In any manner discouraging membership in International Hod Carriers' Building and Common Laborers' Union of America, Local No. 472, or in any other labor organization of its employees by discriminating against its employees in regard to hire or tenure of employment or any other term or condition of employment ; (b) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. DECISIONS AND ORDERS 637 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Michael Watson and Henry Murray immediate and full reinstatement to their former positions, without prejudice to their seniority and other rights and privileges; (b) Offer to William Smith immediate and full reinstatement to his former position, or if that position has been abolished, to a posi- tion in the respondent's yard that he is capable of filling, without prejudice to his seniority and other rights and privileges; (c) Make whole Michael Watson, Henry Murray, and William Smith for any losses of pay they have suffered by reason of the respondent's unfair labor practices by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period; (d) Make whole Thomas Wright and Ernest Mobley for any loss of pay they have suffered by reason of their respective discharges by payment to each of them of a sum equal to the amount which he nor- mally would have earned as wages from the date of his discharge to December 28 and 29, 1937, respectively, the dates of their reinstate- ment, less his net earnings during said period; (e) Post immediately notices to its employees in conspicuous places throughout its place of business, stating that the respondent will cease and desist in the manner aforesaid, and maintain such notices for a period of at least thirty (30) consecutive days from the date of posting ; (f) Notify the Regional Director for the Second Region within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. And it is further ordered that the complaint, in so far as it alleges that the respondent discriminated in regard to the hire and tenure of employment of Baxter Walker, Governor Simpkins, and Will Jack- son, within the meaning of Section 8 (3) of the Act, be, and the same hereby is, dismissed.