Western Cartridge Co.

In the Matter of' ESTERN CARTRIDGE COMPANY, WINCHESTER REPEAT- - ING ARMS COMPANY DIVISION and UNITED . ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA,'C. I. O. Case:No. C-216h.Decided August,14, 1942, Jurisdiction : munitions manufacturing industry. Unfair Labor Practices. Interference, Restraint, and Coercion: questioning and.warning employees with respect to their union activities, both directly and through a person-not an employee of the respondent; making abstention from union activities the condition, of request for draft deferment; preventing discriminatorily dis- charged 'employee from obtaining employment elsewhere by making, false answer to a bond questionnaire. Discrimination: discharges and failure to reinstate because of union membership and activity. Remedial Orders: disestablishment of dominated' organizations based upon stipulation : reinstatement and back pay awarded. Practice and Procedure : respondent's motion ,to remand proceedings before a. different Trial Examiner because of Trial Examiner's alleged prejudice and bias in his conduct of the hearing, denied; conduct of Trial Examiner examined and found not .to have denied respondent a full and, fair hearing. • Mr. James C. Paradise, for the Board. Mr. '-Allen. Sesermaan, of Boston, ' Ml tss. and WatrOus, Gumabart ct Corbin, by Mr. James W: Cooper, and Mr. Arthur L. Corbin, Jr., of Nei, Haven, Conn., for the respondent. Mr.Mlichael A. Jiminez, of New Haven, Conn., for the Union. Mr. Francis J. .McDermott, of New.Haven, Conn.; for the.Council. Mr. Harley G. Moorhead, Jr., of counsel to'the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by United Electrical, Radio' & Machine Workers of America, C. I. 0., herein called the Union, the National Labor Relation's Board, herein called the. Board,' by, the Regional Director for the. Second - Region (New York City), issued its com- plaint dated February 24, 1942, against Western Cartridge Company, 43 N..L. R. B:, No; 22. 179 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Winchester Repeating Arms Company Division,' New Haven, Con- necticut; herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section .2^ (6) and (7) of the National .Labor. Relations Act, 49 Stat. '449, herein. called the Act.. Copies of the complaint and. of notice of hearing thereon were,duly served on the respondent and the Union. With respect to the unfair labor practices, the, complaint, as sub- sequently amended,' -alleged in substance: (1) that the respondent discharged Michael Amato, Charles W. Thompson, and Ernest. A. Cruze on October 15, 1941, November 6, 1941, and March 19, 1942; respectively, because they had joined- the Union and engaged in other concerted activities for 'the purposes of collective bargaining or .other mutual aid or'protection, (2) that the respondent,`froni about Octo- ber 14, 1941, to ,the date of issuance of the complaint, vilified, dis- paraged; and expressed disapproval of the Union, interrogated its employees as 'to their union affiliation, and warned its employees against becoming members of the Union; and (3) that the respondent in 1933 initiated and sponsored a labor organization known as Em ployees' Representation Plan, herein called the Plan, and dominated ,'and contributed financial support to it and to Winchester Council; its continuation or successor, herein called the Council. Pursuant to. notice,. a hearing was held at New Haven, Connecticut, on March 23, 24, and 30 and April 2, 1942, before C. W. Whittemore, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, and the Union by one of its officers;. the Council' was represented by its chairman, and entered its appearance on. April 2, 1942. All parties participated ` in the hearing and were aff orded, full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon, the issues. At the opening of the hearing the respondent filed its answer, in which it denied the alleged ,unfair labor practices.3 At the close: of .the hearing, counsel for the Board moved to conform the pleadings to the proof; the motion was granted without objection. During the course of the hearing,, the Trial Examiner made various rulings on other motions and on the admissibility of evidence. The' Board has reviewed the.rulings of the Trial'Examiner and finds that'no preju- dicial error was committed. The rulings are hereby affirmed. Coun- 1 Incorrectly named in the complaint as "Winchester Division of Western. Cartridge Co." The pleadings were amended on motion made and granted at, the opening of--the hearing. 2The complaint was twice amended during the course of the hearing without objection by the parties. • 3 The respondent's answer was subsequently amended to include a denial of the amended allegations of the complaint. WESTERN CARTRIDGE COMPANT'Y. 181 •sel • for the Board-and the respondent argued orally before the Trial Examiner, and subsequent to the hearing the respondent filed a -brief with the Trial Examiner. Om April 2, 1942, prior to the close of ..the hearing, the respondent, the Plan, the Council, the Union; and counsel for the Board entered into a stipulation, subject .to the approval of the Board, in settlement of the issues arising out of the allegations in the complaint, as amended, that the respondent had engaged in unfair labor practices within the meaning of Section 8 (2) of the Act. The stipulation pro- vides as follows : A second amended charge, a supplemental charge, and. a, second supplemental charge having been duly filed by the United Elec- t`rical Radio & .Machine Workers of America, `C.. I. O., here- inafter called the Union, with the Regional Director of the National Labor Relations Board, hereinafter called' the Board, for the Second Region, New York City, alleging that Western Cartridge Company; Winchester Repeating Arms Company. Di- vision, hereinafter called the respondent, has engaged and -is en- gaging.in unfair labor practices within the meaning of Section 8; subdivisions (1), (2), and (3), of the National Labor Relations Act, hereinafter; called the Act, and a complaint and amended complaint having been issued on said charges, and the respond- ent ' having duly filed its. answers to the complaint -and the amended complaint, and a hearing having been held on the alle- gations of said amended- complaint- other than those=pertaining to the alleged 'violation of Section 8, subdivision' (2)• of the Act, at New Haven. Connecticut, on March 23, 24, 30, 31, April 1 and 2, 1942, before Charles W. Whittemore, the Trial. Examiner, duly designated by. the Chief Trial Examiner; and a copy of the' amended complaint having been duly served 'upon'the Employees Representat.ion-Plan, hereinafter called the Phan, and the Win- chester Council, hereinafter called the Council,; and -the Plan and the Council having waived notice of hearing on said amended complaint, and it being the desire of the parties hereto to dispose of the allegations contained in the. second supplemental. charge and the' amended complaint relating to the alleged violation of Section 8, subdivision (2), of the Act without further hearing thereon and without further proceedings before the Board'-, IT IS HEREBY STIPULATED AND AGREED by and between-the respec- tive parties hereto : 1: The respondent is a Delaware corporation having its princi- pal office at East Alt.oil, Illinois. It is engaged in the manufacture of guns, ammunition, and flashlights. It maintains plants at.-East Alton; Illinois, and New Haven, Connecticut. 'The principal ma- 182 DECISIONS' OF' NATIONAL LABOR RELATIONS BOARD aerials which it uses at the latter plant,'known,as the Winchester . plant,. are copper, zinc,' steel, and wood. During the year 1941 over One Million Dollars ($1,000,000) worth of such materials used in the Winchester plant were-purchased and shipped to that plant from points outside of the State of Connecticut., .'During thetsame period, about ninety-five per cent'(95%) of the'products manufactured at'the Winchester plant, valued 'at over One Million. Dollars ($1,000,000), was shipped to points outside the State of Connecticut. Respondent concedes-that it is engaged.--in interst .te commerce within the meaning of the Act. 2. The Union;'the Plan,,and the Council are labor organizations within-the meaning. of Section 2, subdivision (5) of the Act, 3. The Council and the Plan acknowledge, due and timely, service. of the amended complaint, and. waive notice of hearing thereon. 4.' The respondent, the Plan, .the Council, and the Union: each waives any and all rights to a further hearing or.other proceedings by or before the Board with respect to the allegations in the, amended complaint pertaining to the alleged .violation by the respondent, of Section . 8, subdivision (2) of the: Act, and each waives its right to the making of findings of fact-and: conclusions of law by the" Trial Examiner, or the Board with respect to said allegations. 5. It is understood and agreed that this stipulation pertains only to the allegations' in the complaint which allege violation by . the respondent of Section 8, subdivision (2) of the Act, and that it is not intended that this stipulation shall in any manner affect thedisposition bythe Trial Examiner and the Board of the other allegations contained in the amended complaint.. 6: The second amended charge, the supplemental charge, and the second supplemental charge all filed by the Union, the amended. complaint, the notice,of hearing, the respondent's. amended aiiswer, the resolution signed by the Winchester Council, and" the Em= ployees Representation Plan, received 'in evidence as Board's Exhibit 1-0 in this case, the acknowledgment of service of a copy of the amended complaint, and the. waiver of-notice of hearing made during the hearing of this case by the Plan and the Council.' -and this stipulation, shall constitute the entire-record in this case with respect to they alleged violation by the respondent of Section 8 subdivision (2), of the Act. 7. The 'Board may upon the record aforesaid and without fur- ther notice or proceedings enter an order substantially in. the' following form, which order shall -have the same force-and effect as if made after -full hearing, presentation of evidence, and the :making of findings of fact and conclusions of law. " . WESTERN CARTRIDGE COMPANY 153 (1) Respondent Western Cartridge Company, Winchester. Re'- peating Arms Company 'Division, its officers, agents,. successors, and assigiis,.shall cease and desist'from: A. Dominating or interfering with. the administration of Em-' ployees Representation Plan and-Winchester Council,°and'domi- nating or interfering with -the formation or administration of any other labor organization- of its employees, and from con- tributing financial or other support'to the Employees Representa- tion-Plan, the Winchester Council,. or any other labor organization of its employees. B. Recognizing the Employees - Representation Plane or the 'Winchester. Council as the representative of any of its employees for the purpose of dealing with respondent. concerning grievances, ,'labor disputes, rates of pay, -wages, hours of employment, and other conditions of-employment. - . C. Interfering with, restraining, or coercing its employees in the exercise of their rights to'self-organization by dominating or interfering with the. formation or administration of any labor organization of its employees. (2) The respondent, its officers, agents, successors, or assigns, shall take the following affirmative action to effectuate the policies of the Act. A. Withdraw and withhold from Employees Representation Plan, Winchester Council, or any successor of either of said organ- izations, any, and all recognition .as representative of any of its employees for the purpose of dealing with the' respondent con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. B. Delete from all literature distributed by it to its employees any reference to the continued existence of the Employees Repre- sentation Plan or the Winchester Council. - C. Post notices to its employees in conspicuous places through- out its plant At New Haven, Connecticut and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting, stating (1). that the respondent will, not engage in the conduct from which it is ordered to cease and desist in. Sections 1, Al B, and C, hereof; and (2) that the respondent ' will take the affirmative action set forth in Paragraphs 2, A- and B. hereof. . D. Notify the Regional Director of the National Labor Rela- tions Board for the Second Region within ten (10) days from the date of the approval by the National Labor Relations Board of the' stipulation upon which this'order is based what-steps the respondent has taken to comply herewith. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8. Upon application by the'Board without further notice to the parties, any appropriate United' States Circuit Court of Appeals as provided for in Section .10c, of the Act, may enter a decree embodying substantially the above order of the. Board, and the parties expressly waive their right to contest the entry of such decree. 9. The entire agreement between. the parties is contained within the terms of this instrument, and there is. no verbal understanding of any kind which varies, alters, or adds to this stipulation. 10.. This stipulation is -subject to the, approval of the National Labor Relations Board and shall become effective immediately 'upon the granting of such approval. 11. -Nothing contained herein shall be construed as an admis- sion by the respondent that it has engaged in unfair labor prac- tice within the meaning of Section 8, subdivision (2) of the Act, as alleged in the amended complaint; On April '10, 1942, the Board issued an order approving the, stipula- tion and making it a part of the record herein. ,On April 18, 1942, the Trial Examiner issued his Intermediate Re- port, copies of which were duly served on the respondent, the C.oun- cil,.the Plan, and the Union. He found that the respondent had dis- criminatorily discharged and thereafter refused to reinstate Michael Amato, Charles W. Thompson, and Ernest A. Cruze, and had thereby engaged in unfair labor practices, within the meaning of Sect-ion, 8 (1) and (3) of the Act. He recommended that the respondent rein- state the three named employees with back pay, and that the respond- ent cease and desist from the unfair labor practices found. Thereafter, on May 7, 1942, the *respondent filed with the Board a ,motion to remand the case for hearing before, a different Trial Exam- iner, on the ground that the Trial Examiner had been prejudiced and biased in his conduct of the hearing. The Board has reviewed the record and finds that there was nothing in the Trial Examiner's con- duct which deprived the respondent of a full and fair hearing. The motion to remand is hereby denied. - On May 28, 1942, pursuant-to an extension of time granted by the Board, the respondent filed its exceptions to the Intermediate Report. Thereafter, upon the request of the. respondent and pursuant to notice duly served upon all the parties, a hearing for the purpose of oral argument was. held before the Board on June 2, 1942, at Washington, D. C.' The respondent and the Union were represented by 'counsel and participated in the hearing. During the hearing, the Union re- quested and was granted leave to "file exceptions to the Intermediate Report, which were thereafter filed. , - WESTERN CARTRIDGE COMPANY 185 The Board has considered the exceptions filed by the respondent and the Union, and hereby finds them to be without merit insofar as they are inconsistent with the findings of fact; conclusions of law, and order set forth below. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I.'THE BUSINESS OF THE RESPONDENT Western Cartridge Company is a Delaware corporation having its principal office at East Alton, Illinois. At New Haven, Connecticut, it maintains and operates a plant known as Winchester Repeating Arms Company Division, which is the only plant involved in the present proceeding.' At its New Haven plant, the respondent is en- gaged in the manufacture of munitions, flashlights, and airplane radi- ators. During 1941, the respondent purchased outside the State of Connecticut and had shipped to its New Haven plant copper, zinc, steel, and wood valued at more than $1,000,000. During the same period, it shipped from the plant finished products valued at more than, $1,000,000. Approximately 95 percent of these products were shipped to points outside the State of Connecticut. The respondent is engaged entirely in war production. It concedes that it is engaged in commerce, within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the respondent at its New Haven plant. Employees' Representation Plan and Winchester Coun- cil are unaffiliated labor organizations.5 III. THE UNFAIR LABOR PRACTICES A. Background On grievance hatters, since 1933, the respondent has dealt with- the Winchestei -Council of the Employees' Representation-Plan 6 In 1935, * At East Alton , Illinois , the respondent maintains and operates a plant not involved in this proceeding. ° The record does not reveal the membership provisions of the Plan or Council. ° Our findings as to the Plan and the Council are material and relevant to a considera- tion of the issues other than those, settled by the stipulation set forth • in the Statement of the Case, above. The. stipulation , which disposes of the issues raised with respect to the Plan, and the Council , provides that it shall not "in any manner affect the disposi- tion . . of the other allegations contained in the amended complaint ." Our findings as .to the Plan and the Council are based , however, not on the stipulation but on, testi- mony given at the hearing. Similaily, in appraising the credibility of works Manager Boak as a witness on other matters , ne consider below his testimony as to,the Plan and the Council '186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,' certain features of the Plan were ' dropped, but by agreement of management and employee representatives the procedure of handling. grievances-through-the Council was continued. The current "Manual of Instructions to Employees," issued and distributed by the respond- ent, states that : Employees' Representation Plan is in force, and representatives are elected by the employees from various districts who repre- sent them in council. A copy of the rules and regulations, cov- ering this ,plan, is given to each new employee when hired and copies can be secured by anyone wishing them from the Person- nel Department.' (Emphasis supplied). No contract has been, or is, in existence between the respondent and the Council. . Early.in May 1941, dissatisfaction with pay rates and'other working conditions precipitated spontaneous stoppages of work in a, number of departments, particularly the cartridge department and the radia- tor department. As a result of these brief stoppages, the respondent made new time studies of operations and increased some pay rates. During the,latter part of May 1941, organizers for the Union came to New Haven. They distributed leaflets-at the gates of the respond- ent's plant, urging organization of the employees. At about this time, discussions of proposed union organization came to the attention of the Reverend Mr. J. G. Butler, pastor of a local church, the congregation of which is largely composed of employees of the respondent. But- ler urged Works Manager Boak, "in the interest of Christianity and good industrial relations," to avoid strife and hatred by dealing with the employees on a basis of "mutal understanding and trust." Boak replied, that he would not recognize a union until forced to_ do so, implied that the sole purpose of the union organizers was to stop the production of war materials in the plant, and declared that he did not understand how the.Reverend Mr. Butler could believe that union organization "would be for the best interests of this country or the Allied cause." On June 5, 1941, Boak posted a notice to all employees stating, in part, that • Philip Bernstein, then head of the respondent's time- 'When first called as a witness by the Board, Works Manager',Boak testified that the Plan had been in existence until 1935, that at the time of the hearing the Council was acting as a more or less informal grievance committee, and that he knew of no other labor organization in the plant with which the respondent dealt He claimed that the above- quoted paragraph in the Manual of Instructions was an error When subsequently called as a witness by the respondent, Boak testified at one point that the Plan had been for- mally dissolved, but thereafter testified that it was discontinued "as a representative plan, and continued as an elected grievance committee ." This continuance Boak testified, was decided upon at a meeting of management and employee, representatives, but the Plan was never submitted for approval by the employees as a whole. Boak could not explain why employees continued to receive instructions that the Plan was still "in force." WESTERN CARTRIDGE COMPANY 187 study department, was being appointed "Counselor Of Employees,'! that he would be "the personal representative of the Works Manager in dealing,with- all problems of employees," and, that, everyone should cooperate "in helping Mr. Bernstein work out all questions which arise-through- working conditions." Thereafter, Bernstein devoted a substantial part of his working time to handling grievances and pay- rate problems, although he also continued to serve as head of the time- study department. During the summer.land fall of 1941, Boak purchased 'some 500 to 1,000 reprints of magazine articles decrying labor organizations. These reprints, which were paid for out of funds of the respondent, were distributed "by, Boak to all the respondent's supervisory em- ployees, numbering more than 400.8 Although Boak has dealt with employee representatives with respect to grievances. and rates of pay without questioning whether, they rep- resented a majority of the employees, he refused to confer with or in the presence of a representative of the Union with respect to the discharges considered below. B. The discriminatory disclurrges 1. Michael Amato Active efforts of the Union to organize the respon tent's employees on a departmental basis did not begin until the fall of 1941. Its activi- ties prior to that time consisted, mainly of distributing leaflets at the plant gates. In the airplane-motor radiator division, organizational leadership was assumed by Michael Amato, a metal worker. The re- spondent had hired Amato on July 3. 1940. He was discharged on October 15, 1941. At the time of liis discharge he had worked' in his department longer than all but 3 of the 100 employees in the depart- ment. - During the work stoppages of the previous May. and the consequent discussions with Boak, Amato had served as spokesman for the metal workers in his department. Although Amato did not seek to have his own job retimed, he was persistent in his efforts to obtain increases for his fellow employees. Boak at that time instructed Personnel Director Snyder to look into Amato's "background." Following the work stoppages and while the Union was distributing' leaflets, Snyder telephoned C. V. King, a city official upon whose recom- mendation Amato had been hired, told him there was some trouble at e At the hearing, Boak explained that he distributed these reprints in order to " spread the light." Although Boak also circulated among its supervisors copies of certain other articles dealing with problems of management, he usually circulated only 12 to 15, type- written copies. - 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the plant in which Amato 'was involved, and asked-him to get in touch with Amato and "straighten him out." King went to the plant and talked with Amato during the lunch period, telling him that the - respondent had' branded him as a Communist. Amato admitted to King that he had joined in the work stoppages, but denied that he was the ringleader: He explained that, acting as the representative of the metal workers;'he had simply presented their rate grievances to Boak. At the time, Amato was not a member of the Union. On Sunday, October 12, 1941, Amato met with about -15 of his fellow employees at the home of one of them, where they discussed the need for union organization. The next day, Amato and' 4 other employees 9 visited the. Union's office, obtained membership-application cards, dis= tributed them during the lunch hour and after work, and solicited • signatures. They continued this activity on October 14, the day Amato "officially" joined- the Union. , Amato's foreman, Upton, reported to Personnel Director Snyder that Amato was distributing union "circa-' lars. " 10 At various times on October 14, Snyder attempted to telex phone King„the city official, and he finally left a message for the latter to call him."' King received, Snyder's message later in the`day and called him. King testified that, during the telephone conversation which followed, Snyder told him that Amato still persisted in his organ- izing activities despite the previous warning, and asked him to see Amato again. Snyder denied King's version of the telephone conver- sation, but admitted having suspected Amato of being engaged in union activities and also admitted having told King that Amato might be "criticized severely" for distributing circulars. Under the circum- stances, we accept King's version of his telephone conversation with Snyder, as did the Trial Examiner. Following the-conversation, King met Amato at about 5: 15 p. m., and spoke to him. When Amato pro- tested that he had a legal right to join the Union and asked why the respondent had taken this method of communicating with him, King conceded Amato's right to join a union, but said that he had recom- mended Amato for the job and therefore felt obligated to -see that Amato "kept his nose clean." 9 One of these four was Charles Thompson , w hose discharge is discussed hereinafter 10 Snyder and Upton denied knowing that the distributed matter had anything to do with unions, but Amato distributed no other kind and Snyder admittedly ` suspected" that they might be union circulars 11 Snyder, testified that he communicated with King on this second occasion in Septem- ber - King was' uncertain as to the exact date, but was inclined to think that 'it was pilur to Amato's discharge The record shows that the Union's organizing campaign became active in October and that Amato did not begin organizing openly until October 13 Amato testified , that King called on him the night before his discharge , which would fix the date as October 14 Since King 's visit was followed so closely by Amato's discharge, we believe it.more likely that Amato 'a ould mark and remember the date than that Snyder would we find , as did the Trial Examiner , that Snyder telephoned King about Amato and that King's second visit to Amato took place on October 14, 1941. WESTERN CARTRIDGE COMPANY . ] S9 During midafternoon October 14,- Bernstein, the respondent's "Counselor of Employees," and Baker, a subordinate of,Bernstein's in the respondent's time-study department, spoke to a number of the employees in Amato's department, going from bench to bench to do so. Bernstein asked the employees "how conditions in general were, and whether they were satisfied or not." Prior to October 14, Bernstein had not been in this department since May, except, as. he put it, to "saunter through it, and let any of them come up" to him "if they had any grievances."- Sometime after 4:30 p. m., Bernstein reached Ama- to's bench, which was near-the end of one of two rows of work benches extending the length of the room. Bernstein asked, "How are things going.?" Amato replied that- everything was all right and inquired, "What are you worrying about?" Bernstein asked about-the-rates of pay, and then added that he was interested in other things. Amato again declared that everything was all right, and Bernstein, according to the testimony of Amato and employee Chiaraluce, then turned away, crossed the aisle, and talked to Chiaraluce. Bernstein . and Baker denied at the hearing that Bernstein stopped to talk to Chiaraluce after talking to Amato, but we credit Amato's and Chiaraluce's testimony, as did the Trial Examiner. t'- After Bernstein had left,Amato pointed to Bernstein with his thumb and at the same time made a remark to Baker, who was standing in the aisle talking to Chiaraluce. Operations in the'shop are noisy, and Baker twice asked Amato to repeat the remark, which he did. Baker testified at the hearing that Amato; in his remark and the first repetition of it, called Bernstein an obscene-and vulgar name. This was denied by Amato,, who testified that what he said was that he understood Bernstein was no longer Baker's boss, since Bernstein had said he was "interested in other things" besides rates. Bernstein testified that, as he was walking away from Aniato's bench, he heard Amato calling him the name in ques- tion. Chiaraluce; near whom Baker was standing when Amato made the remark under discussion, did not hear what Amato said; and Grasso, an employee who worked across the bench from Amato, some 21/2 feet distant and facing him, testified when called by the respond- ent that he-had never heard Amato use improper laiiguage with any foreman or supervisor. - 13 Prioi to the hearing heiem, Chiaialuce had signed a statement to the effect, in part, that Bernstein had stopped to talk to hum after leaving Anmato's bench' • Chiaraluce failed to appear on the first day of the hearing in response to a subpena previously served on hnn The Trial Examiner commented on his failure to appear , and officials of the respondent then advised him to obey the subpena ; Chiaraluce appeared at the hearing the next day when Kist called as a witness, lie gave testimony which was contrary to the signed statement in this respect and in others, and , substantially in accord with Baker's subsequent testimony IIoweve, , when confronted with the statement signed by him prior to the heaung, Chmaialuce acknowledged its accuracy and truth 190 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD In any event, Bernstein went to Works Manager Boak and reported that Amato had called Bernstein the name in question.. Boak promptly sent for Baker and, upon>the latter's cor-roboratiung"Bernstein's report, called Amato's foreman, Upton, and instructed him to send Amato to Personnel Director Snyder's office. Upton delivered the message to Amato when the latter'wiis on his way to the time clock to ring out at the end of his shift, and Amato said that he would see Snyder the next morning rather than on-his own- time that afternoon. Upton did not insist, and Amato rang out at 5 :02 p. in. and left the plant. Boak again discussed the matter with Bernstein' lifter Amato had gone home, and then issued orders for the company guards to pick up Amato upon his reporting for work the next morning. Pursuant to these instructions, Amato was taken to Snyder's office early the next morning when he came in. Snyder' had come to his office more than half an hour earlier than usual in order to be there when Amato ar- rived, and when Amato was brought in had already given orders that Amato's pay check and' dismissal slip be made'out. Snyder took Amato's pass from the guard who had escorted him in, and then told , Amato that he was discharged. When Amato asked why he was being discharged, Snyder said that Amato had called Bernstein a "profane" name. Amato denied having done so, whereupon Snyder called in Baker, who had been asked bye-Snyder to be available and, who said that he had heard Amato call the name. Amato then angrily accused Snyder of discharging him without a hearing, and asserted that other employees working at benches near his would refute Baker's charge 13 Snyder, however, refused to call any other emloyees, and Amato left the plant without waiting for his pay check. Later the same day, Baker talked to employee Chiaraluce, who asked what the trouble had been between Amato and Bernstein. Baker an- swered that "they had heard Amato was organizing,the C. I. 0., and then asked Chiaraluce whether he was a member. When Chiaraluce replied that he was not a member, Baker declared that unions got em- loyees "nowhere" and that he did not understand why employees joined .14 On the following day, Thursday, October 16, 1941, Amato returned to the plant and received his pay check and discharge slip. The latter Baker and Snyder did not, in their testimony, mention Amnato's offer to disprove Baker's charge , but neither of them denied it. Amato'testified that Snyder did not seem interested in making any investigation at the time, and that Snyder appeared to be acting on orders from "over his head." This is borne out in part by Snyder 's testimony that it was not he who discharged Amato, but that lie merely had the last word with Amato before the latter left. ' U Baker denied saying anything to Chiaraluce about unions , except that he had nothing to say about them "one way or the other " The Trial Examiner , on the basis of his pbservation of Baker 's demeanor on the witness stand , found that Baker was an untrust- worthy witness . We find , as did the Trial Examiner, that Baker 's denial is not entitled to credence. - 1 WESTERN CARTRIDGE COMPANY 191 bore the notation , as the reason for his discharge : "Using bad lan- guage." Amato testified . that, when he , got, his pay, check, - Snyder told him that he seemed to have the habit of getting himself into difficul- ties, asked him where the Union would "get " him, and implied that the Union would not stand behind him . Snyder conceded at the hearing that he told Amato that he had had experience with unions , but that he could not recall having said more with respect to , unions. We find, as did the Trial Examiner, that Snyder made the remarks attributed to him by Amato. On October 17, the day after Amato had received his discharge pay, a committee of five .of his fellow employees went to Boak's office, seek- ing,Amato's reinstatement. These five were: Charles W. Thompson, Pasquale ^Parillo, Joseph Grasso , Angelo DeLucia, and - Chiaraluce.' The last-mentioned employee worked at a bench across the aisle from Amato, at a distance of from 6 to 8 feet; Grasso worked at the same bench as Amato, facing hint and less than 4 feet away. The committee told Boak that there must have been some misunderstanding and that neither Chiaraluce nor Grasso had heard Amato call Bernstein any name. Boak refused to reconsider Amato's discharge. He told the committee an Aesop's fable about 'the fox which lost its tail and there- after preached•that tails were useless . The committee understood Boak to imply that Amato, having lost his job, was trying to get them to engage in conduct which would cause them to lose theirs . Boak then sent for some reprints of certain antiunion articles, placed then on the desk before the committee, and said that , while he could not "hand the pamphlets out to them , as that would be misconstrued," he "had no objection to their taking them if they wanted to take them." Within the next 3 weeks, both Thompson and Parillo were discharged. Thereafter , Amato endeavored to find work elsewhere and finally applied for a position for which he was required to furnish a bond. In applying-for a bond, Amato named the respondent as his last em- ployer, and the bonding company forwarded a form questionnaire to- it asking for information as, to Amato 's record. ' The questionnaire was sent by one of the respondent's mail clerks to Snyder's office, marked' for Snyder's attention . Thereafter, the questionnaire was returned to the bonding company stamped "No Record," and Amato was refused the bond. Although Snyder testified that the questionnaire could have been stamped "No Record" while he had Amato's card in his posses- Sion," he admitted that under usual office procedure - the card would 1' During his testimony on the first 'day of the hearing, Amato produced a letter'from - the bonding company, rejecting his application foi a bond because the respondent had re- ported that it had no record of his employment. Counsel for the respondent « as asked by the Trial Examiner to confer with the respondent 's officials who were present, among them Snyder , and the respondent was requested to produce the letter of inquiry from the bonding company. Counsel stated ; - after conference, that "I understand a search has been made in the files I am infoi med that this question came' up a week ago and the re- 192 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD have been replaced by a notice in the file indicating where the card ;a§. Snyder gave the names of clerks in his office who might have handled the inquiry, but none of these clerks was called as a witness. We find, as did the Trial Examiner, that the respondent returned the question- naire to the bonding company incorrectly stamped in order to prevent Amato from obtaining other employment, In summary, Amato denied having called Bernstein a name'. Neither Chiaraluce or Grasso, both of whom worked as near Amato as Bern- stein claims to have been at the time the name is said to have been called, heard Amato do it. Bernstein admitted at the hearing that there had been nothing*in his discussion with Amato which could be expected-to lead Amato into calling names. In addition, it' appears that Bern- stein's back was turned toward Amato at the time the name is supposed to have been called. We find it difficult to believe that Bernstein; with his back to Amato, could have understood anything Amato said while the shop was in operation and while he was at least as far away from Amato as were Chiaraluce and Grasso. That Bernstein's testimony is not reliable is further indicated by his denial of having stopped to talk to Chiaraluce after Amato is alleged to have called the name, although the evidence shows, as we have found above, that he did in fact do so. Baker has been found by the Trial Examiner to be a wholly untrustworthy witness, and we believe that the record not only supports this'appraisa] of•him but also shows that he was obviously hostile to the Union. 'We are persuaded, as was the Trial Examiner, that the record contains no substantial showing' that Amato in fact did call Bernstein an obscene name on the afternoon of Tuesday, October 14, 1941. Moreover, we do not believe that the respondent was in fact moved to discharge Amato,because it believed he had called Bernstein a name. The record shows that it is not uncommon for employees to .use vulgar language in the respondent's plant. . Although Personnel Director Snyder testified at the hearing that a number of employees had been discharged for conduct similar to that attributed to Amato, the records produced by the respondent in support of his testimony do not bear him out. These records show that, in each instance relied upon by the respondent, the employee in question had been guilty of some other offense, such as insubordination, and that use of improper language had merely accompanied or aggravated the other'offense. It is, in our opinion, more significant, in determining the cause of Amato's discharge, that Works Manager Boak, whose undisguised antipathy toward unions has already been described, instructed Personnel Direc= spondent immediately started a search for its records , they searched everything they could think of and have not been able' to find anything bearing on this , matter " Counsel for the Board thereafter obtained and introduced in evidence a photostatic copy of the ques- tionnaire from the bonding company, and Snyder thereupon identified it and for the first time gave the explanation stated above WESTERN CARTRIDGE COMPANY 193 Or Snyder in May 1941, following Amato's efforts to obtain better pay rates for his fellow employees, to look into Amato's "background"; that, on October 13, Snyder was promptly informed by Foreman Upton of Amato's open union activity; and that no attempt was made by the respondent to investigate the charge that Amato had called Bernstein an improper name. Boak explained his failure to give Amato an opportunity to refute the charge on the ground that he turned the matter over to Snyder for investigation. Snyder, however, had Amato's pay check and discharge slip prepared before seeing Amato and informing him of his discharge; and, when Amato denied the charge, Snyder called in only Baker and refused-to call in the other employees who Amato said would contradict Baker's story. We are convinced, as was the Trial Examiner, that the respondent was not interested in and made no attempt to find. out whether Bernstein and Baker were telling the truth, but that it seized upon the alleged inci- dent as a plausible reason for ridding itself of the most active union member in its plant. We are supported in this conviction by the treat- ment given to the committee of five employees, who sought to secure Amato's reinstatement shortly after his discharge and who were told by Boak not only that their request would not be granted but also, in effect, that they might lose their jobs if they persisted in their union activity.,, We find, as did the Trial Examiner, that the respondent discharged Michael Amato on October 15, 1941, because of his union membership and activities, and that it thereby discouraged membership in -the Union. We further find that, by thus discriminatorily discharging Amato, by questioning Amato through King as to his union activities, and by attempting to keep Amato from obtaining employment else- where, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed iii Section 7 of the Act. 2. Charles W. Thompson , Thompson was employed by the respondent on April 17, 1941. He became a highly skilled silver "solderer, and he and his working partner did a special kind of soldering work on a particular type of airplane radiator. This work could be,learned by an experienced silver solderer in a week or 10 days but, as Supervisor Halpin testified, "the, quality of his work would not come up for a longtime 19 Grasso quickly chose to renounce his union membership Pardlo, another member of the committee, was discharged, although he was later reinstated by the respondent and his discharge is therefore not involved in the present proceeding. Thompson was also discharged, and his discharge is discussed below. Chiaraluce's fear of losing his job was amply demonstrated by his reluctance to appear and testify at the hearing and by his contradictory testimony at the hearing. All four of these employees were members of the committee which called on Boak to discuss Amato' s discharge. 481039-42-vol 43-13 . 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11 after that." Thompson's foreman, Upton, testified that Thompson and his working partner were the most indispensable employees in the department, with the exception of Supervisor Halpin ; and Halpin testified that none of the 15' solderers in the department except Thompson and his partner had been trained to do their specialized work. As we have found above, Thompson went to union headquarters with Amato on October 13, 1941. Thompson also assisted Amato in distributing union, membership application ,cards, and he was a' member of the five-man committee which went to see Works-Man- ager Boak, in, an attempt to have Amato reinstated after his dis- charge. On October 21, 1941, the respondent was .notified in writing that Thompson had been made a chief steward of the Union. On Saturday, November 1, 1941, Thompson was absent from work and reported to the respondent's personnel office by 'telephone that his automobile had broken down. On the following day,' November 2, Thompson decided to go to New Jersey to be married, and asked his brother, Irvin, to notify the respondent of his absence and the reason therefor. Accordingly, on Monday morning, November 3, Irvin Thompson told the respondent's timekeeper of his brother's absence and the reason for it. The timekeeper received the report without comment and transmitted the information to Thompson's foreman. No attempt was made by the respondent to notify Thomp- son, either through his brother or otherwise, that his absence would, not be excused. On Thursday, November 6, after having been married, Thompson returned to the plant for his weekly pay 14 and told Foreman Upton that he would be in to work the next day. Upton said that he could not pay Thompson, and took Thompson to the office of Personnel Director Snyder. Thompson was there told by Snyder that he was "through" and that he had "cleared" himself because of his unexcused absence. Thompson replied that it seemed to him to be a poor excuse for his- discharge, and indicated that he believed he was being dis- charged because of his union activities. To this Snyder said, "Call it what you want." 18 At the hearing, there was introduced in evidence a copy of the re- spondent's current manual of instructions to employees, which reads in part as follows : Absences should occur only when absolute necessary. Whenever you are sick notify the Employment Office by telephone or by '' The respondent's regular pay day is Thursday. is These findings as to what took place on Thursday, November 6, are based on Thomp- son's testimony Snyder denied that there was any discussion of unions or union activi- ties during his conversation with Thompson on November 6, but the Trial Examiner, who saw and heard the witnesses , did not credit Snyder's denial. We credit Thompson's testi- mony, as did the Trial Examiner. j WESTERN CARTRIDGE COMPANY 195 mail, giving your name, shop, reason for absence, and if possible, when you expect to return. It has been necessary to make the rule that an employee is dropped from the roll if absent two weeks. If compelled to be out two weeks, please report at the Personnel Department on' your return. If you want time off,, please arrange in advance with your foreman. Unexcused ab- sences from work may result in dismissal. [Italics suplied.] This clearly does not provide for the automatic discharge of any em- ployee who absents himself from work without leave,.and the record shows that the respondent did not so apply the rule. Personnel Director Snyder interpreted the above-quoted rule as follows : Well, my interpretation of that rule-is that anyone who stays out without permission, or without sending in word, and so forth, and being excused, is liable for dismissal, depending upon dif- ferent things. There are a good many things entering into it, whether a man is a long-time employee, and whether he has been a good worker or not, and so forth and so forth, and how badly the worker is needed there. Snyder further testified that lie knew of no rule as to absences from work, other than the one quoted above, of which the respondent's employees had been notified. Snyder also admitted that being mar- ried was a reason for absence deserving "considerate treatment" by the respondent, and that many employees who were absent without permission were not discharged. The respondent made no attempt at the hearing to show that any employee other than Thompson had ever been discharged because of unexcused absence from work. Foreman Upton testified that Thompson had one of the best attend- ance records of employees in his department, and the respondent's records show that Thompson was not absent from work at all during July and August 1941, and that he was absent only on two Saturdays in September and one Monday in October prior to the unexcused ab- sence which is alleged to have led to his discharge. Upton also testi- fied, however, that he had warned Thompson, about 2 weeks before the latter's discharge that the "job was rushing and . . . if he was going to work there we had to have his attendance." Thompson de- nied that he had ever been warned about his attendance. In answer to a leading question, Upton testified that he warned' Thompson about his attendance on October 20, which the record shows is the single day during October 1931 on which Thompson was absent from work. The record also shows, however, that for 3 full days during the week beginning Monday, October 20, 1941, there was no work available for Thompson in his regular assignment. Under the circumstances we do not credit Upton's testimony, that he then warned Thompson that the "job was rushing" and that his attendance was therefore- 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD imperative. We find, as did the Trial Examiner, that Thompson was never warned that absence from work would result in his discharge. Foreman Upton also testified at the hearing that Thompson's ab- sence cut down by 50 percent production on the job to,which Thomp- sonand his partner were regularly assigned, the inference being that this was a serious interference with war production and, therefore, could not be excused. On the other hand, Upton admitted that, while he would have liked an oportunity to persuade Thompson to change his plans, Thompson would have been granted a leave of absence if he had requested it. Furthermore, the respondent's records show that, during the month preceding Thompson's discharge, he was given other work on a number of days because of lack of the kind of work he-regularly did. Finally,'the respondent's willingness to discharge Thompson, although that meant breaking in a new man on his job and a consequent delay in production of war material, and although an "expediter" from an aircraft company was then at the plant urg- ing delivery of the products of Thompson's department, makes' it difficult to believe that Thompson's 3- or 4-day absence from work starting November 3 was regarded by the respondent as requiring his discharge. On all the evidence, we believe and ,find that the re- spondent was not led to discharge Thompson. because of his unexcused absence, but that it seized upon his absence as a pretext 'for ridding itself of an active union member and officer. We find, as did the Trial Examiner, that the respondent discharged Charles W. Thompson on November 6, 1941, because of his, union membership and activities. By thus discriminatorily discharging Thompson, the respondent discouraged membership in the Union, and interfered with, restrained, and coerced its employees in the exercise of the rights-guaranteed in Section 7 of the Act. 3. Ernest A. Cruze Cruze was employed by the respondent about January 15, 1942. He had previously had 4 years' training in aviation and mechanics, and about 350 hours' machine shop training. He was employed by the respondent at common labor as a trucker in the print shop, under General Foreman McAller. Together with one other trucker, Cruze worked on the 8 p. m. to 11 p. m. shift. Believing that his training and experience warranted assignment to work other than common labor, Cruze became dissatisfied. About 2 weeks after Cruze was employed, McAller told him that his work was not satisfactory and that he must "pick up." Cruze then inter- viewed Stock Foreman Mitchell, who had been assigned by the re- spondent to assist Personnel Director Snyder in handling personnel WESTERN CARTRIDGE COMPANY 197 problems among Negro employees,19 and asked for a transfer to some position for which his training had fitted him. Cruze was advised to have patience, since other applications preceded his. Cruze con- tinued to press Mitchell for either a raise or a transfer. During the latter part of February, Mitchell promised him a transfer and gave him a note addressed to McAller stating that, if the latter would release Cruze, he would be placed elsewhere. McAller received the note, but did nothing about it because he first had to have another man broken in as a trucker. About March 1, Cruze asked McAller for a raise and urged him to effect either the raise or the transfer. Although McAller had previously, on or about February 10, repri- manded Cruze for having been caught sitting on a-pile of boxes with another trucker, Cruze was told by McAller, in response to the former's request for a wage 'increase on March 1, that McAller had already put through a raise for him the -previous week. - . On March 9 Cruze joined the Union and immediately began urging other employees to join. On March 12 he reported for work wearing his union button next to his identification badge. * The same after- noon he was sent to the office of Personnel Director Snyder. Cruze testified that Snyder then said that it had been reported to him' that Cruze had a venereal disease'20 and that Snyder advised him to re- sign. Snyder denied having suggested that Craze resign, and in other respects gave a somewhat different account of the conversation, but the Trial Examiner found that Snyder was not a credible wit- ness, and we therefore credit Cruze's testimony, as did the Trial Examiner. Cruze protested that the accusation was a' surprise to him, and promptly offered to have a physical examination. He im- mediately visited the company doctor who, upon examination, re- ,ported that there was nothing wrong with him. Cruze then returned to his work. On March 19, 1942; Foreman McAller discharged Cruze, telling him that his work was unsatisfactory. No new -trucker had then been broken in as yet to take Cruze's place. In support of the respondent's contention that Cruze's work was unsatisfactory, McAller testified that on March 11 he reprimanded Cruze for not having followed instructions on the previous day to move a large number of boxes from the middle of the room to a spot nearer certain machines. When McAller came in for work on March 11, according to his testimony, many of the boxes were still where 10 The respondent employs about 1,200 Negroes, most of them as truckers or hustlers. A small number, undetermined by the record, are engaged in machine operations, such as tumbling barrels. Both Cruze and Mitchell are Negroes, and Mitchell had previously handled other matters involving Cruze. 20 Snyder testified that the information came to him through an anoymous telephone call. 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they had originally been piled. Night Foreman Demetrio corrobo- rated McAller's testimony as to the latter's having given Cruze the instructions, testifying that they were given in his presence. Cruze admitted having received the order, but explained that after he had moved a large number of the boxes the available space near the machines was exhausted and Demetrio instructed him to stop mov- ing them. Demetrio denied having told Cruze to stop moving the boxes, but did not explain why he failed to make sure that Cruze performed the assigned task, although admittedly it was his re- sponsibility as Cruze's supervisor to see that McAller's instructions were followed. Nor did either Demetrio or McAller explain why the unmoved boxes 'remained untouched through two succeeding shifts until Cruze again reported for duty the next day. McAller testified that the boxes were needed by the operators of the machines, but he did not have the boxes moved by another trucker prior to Cruze's return. We credit Cruze's explanation of the incident, as did the Trial Examiner. On March 12, as described above, Cruze had a conversation with Personnel Director Snyder. Thereafter, Cruze began }keeping a daily record of his work. Accordingly, on March 16, in the presence of another trucker, Cruze asked Assistant Foreman Flaherty whether he had found the room cleaned up and in. satisfactory condition the day before. Flaherty answered that Cruze's work was "0. K." McAller testified that the two incidents culminating in Cruze's discharge occurred on March 18. The first involved the use of a heavy truck and a purported "argument" between Cruze and Flaherty. McAller testified that Flaherty reported to him that Cruze had pre- cipitated the argument by telling Flaherty that "when he came in after this he wanted to see somebody else using that big truck;" Flaherty testified that Cruze had asked for a helper on the big truck, that a discussion with Cruze and another trucker as to the proper use of the truck then followed, and that at the close of the discussion Cruze told him, ."From now on, when I come in at three o'clock I want to have a helper on that." Cruze testified that on this occasion he had protested against being,made to haul the heavy truck alone, and that he then had a general discussion with Flaherty and two other truckers, one of whom also protested that the truck was too heavy for one man to haul. Cruze denied having told Flaherty that, he would not use the truck unless he had a helper, and his testimony that he continued to use the heavy truck throughout the remainder of the shift is uncontradicted. On cross-examination, McAller conceded that the occurrence was not considered important at the time, and that it was not enough to warrant the discharge of Cruze. The second incident occurred a few hours later during the WESTERN CARTRIDGE COMPANY 199 same shift and was reported to McAller on the following, day by Night Foreman Demetrio. According to McAller, Cruze gave De- metrio "an argument" when the latter asked Cruze why-it-had taken, him so long to make a trip with his truck. McAller, however, admitted on cross-examination that the "argument" consisted simply of Cruze's explaining why he had been delayed. Demetrio testified as to the same incident that, when Cruze "happened to be a little longer than usual" in making a trip to another part of the plant, Demetrio went over to find out the cause of the delay and met Cruze on his way back; that Cruze said he had assisted in straightening things out and had been obliged to wait for two elevators ; and that Demetrio told Cruze that his duties were in the print and box shop and that he should "get going." We find, as did the Trial Examiner, that there is nothing in the record to support McAller's claim that Cruze had given Demetrio "an argument" on this occasion. McAller also produced at the hearing a loose-leaf notebook in which he claimed to have contemporaneously recorded various facts about his job, including reprimands given to employees. He testified that he had noted in the book every time he had reprimanded Cruze. Nevertheless, the book contains no entry relating to the reprimand allegedly given Cruze on March 11 for not having followed instruc- tions, or to the argument which Cruze is said to have had with Demetrio on March 18 and which McAller described as the "last straw." Entries giving only an employee's name and a date appeared on a page under the heading "REP," and included the following : "E. Cruze 2/10/42 3/11/42." This was the only entry in which two dates followed a name, and both dates were written with heavier and darker pen strokes than, any other entry on the page. McAller testified that he had not entered both dates at the same time, but that he had probably used a different pen for them than he had used for all other entries. He conceded that "It does look strange." The date March 11, it will be noted, is the day on which Cruze first wore his union button while at work.. On the back of another page, on which no other entries appear, are two entries against Cruze, "E. Cruze setting on Box 2/9/42" and `,`E. Cruze Truck 3/18/42." McAller conceded that the entries on "2/9" and "2/10" referred to the same incident. We find, as did the Trial Exam- iner, that the entries in McAller's notebook are not credible evidence of the facts they purport to show. • The Trial Examiner has found, and we are convinced by the evi- dence, that Cruze was marked for discharge by the respondent from the moment that he came to the plant wearing his union button on his shirt next to his identification badge. Certain supervisory employees testified for the respondent that they had not seen the 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union button, but the fact that Cruze was asked by Snyder the same day to resign because he allegedly had a venereal disease persuades us that the union button and Cruze's union activities did not go unnoticed. Snyder was unable to cite any other specific instance in which an employee had been in effect compelled to submit to a medical examination like that to which Cruze submitted. Further- more, it is incredible that Snyder, personnel director of a plant employing more than 12,000 employees, would have arranged a personal interview with Cruze merely on the strength of' an anony- mous telephone call, particularly since Foreman Mitchell had been given the job of dealing with Negro employees. McAller's testimony as to the unsatisfactory nature of Cruze's work is completely uncon- vincing. We agree with the Trial Examiner that, "when Snyder failed to cause Cruze to leave, of his own volition, and physical examination proved him of untainted health, McAller and his sub- ordinates endeavored to find some pretext upon which to rid the plant of an active union member." We find, as did the Trial Examiner, that the respondent dis- charged Cruze because of his union membership and activity, thereby discouraging membership in the Union, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. Other interference, restraint, and coercion In October 1941, when the Union was beginning its organiza- tional activities at the respondent's plant, Joseph Daley was employed in the gun parts division. During the early part of that month, Superintendent Scherer approached -Daley and asked him if it was true, as had been reported to Scherer, that he was engaged in organizing the employees in a union.21 Daley denied it, but told Scherer that he would join, if asked. Although Daley had been working in this department for the preceding 8 months, this was the first time that Scherer had spoken to him. In August 1941, employee Samuel Kolago received a question- naire in conneection with his registration under the Selective Service Act. In accordance with the tespondent's instructions to all employ- ees, Kolago submitted his questionnaire to Subforeman Cahill, who gave Kolago an appeal-for-deferment form to be taken to the per- sonnel office, and said, "Naturally if you were involved in any sort 21 Scherer denied that he asked Daley about organizing , but testified that in August he had asked Daley about a report which he had received that Daley was preparing to "pull out" the workers on strike. The Union's representative testified that union activity was not very much" between May and October, and we credit Daley's testimony, as did the Trial Examiner, both as to the remarks made by Sherer and as to the time at which they were made. WESTERN, CARTRIDGE COMPANY 201 of strikes or union, we won't ask for a deferment." Kolago did not join the Union, and the respondent asked for his deferment. Cornelius Scott was employed by the respondent in January 1942 as a hustler in the inspection department. During the same month he joined the Union. On February 26 the respondent was notified by letter that Scott had been made a chief steward of the Union, and Scott began wearing a button indicating his office. A few days later, while Scott was talking to Foreman Mitchell, the latter pointed to the button and asked if it was true. Scott said that it was true, whereupon Mitchell said, according to Scott's ,testimony, that he would not have expected this from Scott and that Mitchell would s`cotch' hell" for hiring a union man. Mitchell admitted having asked Scott about the button, but denied having made any remark about hiring a union man. Although there is testimony that-the respond- ent hired some employees who it had reason to suspect were union men,22 the remark attributed to Mitchell is consistent with the respond- ent's opposition to the Union, as indicated by our findings above. We find, as did the Trial Examiner, that Mitchell made the statement ° attributed to him by Scott. We find, as did the Trial Examiner, that by the above-described statements and conduct of Scherer, Cahill, and Mitchell, the respond- ent interfered 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, B and C above, occurring in connection with the operations of the respond- ent, described in Section I above,, have a close, intimate, and sub- stantial 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 the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom .and to take affirmative action designed to effectuate the policies of the Act. We have found that the-respondent discriminated with respect to the hire and tenure of employment of Michael Amato, Charles W. Thompson, and Ernest A. Cruze, because of their membership in ^ A nearby plant, at we hich the employer had a union shop contract with a union not identified in the record , closed down and some of its employees were hired by the respondent. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and activities on behalf of the Union: To effectuate the purposes and policies of the Act, We shall order the respondent to offer Amato, Thompson'23 and Cruze immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and tol make each of these employees whole for any loss of pay he has suffered by reason of the respondent's discrimination by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination to the date of the respondent's offer of reinstatement; less his net earnings 24 during that period. In the exceptions filed by it pursuant to leave granted during oral argument before the Board on June 2, 1942, the Union takes issue with the Trial Examiner's recommended back-pay order and contends that net-earnings=should• be,-deducted''from•back pay on a week-fort week basis. We have considered the Union's contention, and we are of the opinion that, under the circumstances of the present proceed- ing, it is without merit. Upon the, basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. United Electrical, Radio & Machine Workers of America, C. I. 0., Employees' Representation Plan, and Winchester Council are labor organizations, within the meaning of Section 2 (5) of the' Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Michael Amato, Charles W. Thompson, and Ernest A. Cruze, and thereby discouraging membership in United Electrical, Radio & Machine Workers of America, C. I. 0., the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. u Thompson has obtained - substantially equivalent employment elsewhere , but desires reinstatement to his former job with the respondent. For the reasons set forth in Matter of Ford Motor Company and International Union, United Automobile Workers of America, Local Union No. 249, 31 N L R. B. 994, 1099 seq., Matter of Phelps Dodge Corporation and International Union of Mine, Mill, and Smelter Workers, Local No. 30, 35 N. L. R. B. 418 (supplemental decree entered C. C. A. 2, November 3, 1941 ), we find that, in order to effectuate the purposes of the Act, it is necessary 4bat the respondent offer Thompson reinstatement as above indicated. 24 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' and United Brotherhood of Carpenters and Joiners of Amer- tea, Lumber and Sawmill Workers Union , Local 2590, 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. - WESTERN CARTRIDGE COMPANY 203- 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. - ORDER A. Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Relations Board hereby orders that the respondent, Western Cartridge Company, Winchester Repeating Arms Company Division, New Haven, Connecticut, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a)' Discouraging membership in United Electrical, Radio & Machine Workers of America, C. I. 0., or in any other labor organi- zation of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire or tenure of employment 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 right to self-organization, to form, join, or assist labor organizations, 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 National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Michael Amato, Charles W. Thompson, and Ernest A,. Cruze immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority and other rights and privileges; n (b) Make whole Michael Amato, Charles W. Thompson,, and Ernest A. Cruze for any loss of pay they may have. suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount he would normally have earned as wages from the date of the respondent's discrimina- tion against him to the date of the respondent's offer of reinstate. ment, less his net earnings during said period; (c) Immediately post in conspicuous places throughout its plant in New Haven, Connecticut, and maintain for a period of at least 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sixty (60) days from the date of posting, notices to its employees stating ( 1)' that the respondent will not engage in the conduct' from which it is ordered to cease and desist in paragraph 1 (a) and (b) of Section A of this Order; (2) that it will take the affirmative action set forth in paragraph 2 (a) and (b) of Section A of this Order; and (3) that its ' employees are free to become or remain members of United Electrical , Radio & Machine Workers of America, C. I. 0., and that the respondent will not discriminate against any employee because of membership in or activity on behalf of that organization ; (d)• Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. B. Upon the basis of the findings of fact as to the business of the respondent in Section I above, and of the stipulation and the entire record made with respect to the respondent 's alleged unfair labor practices within the meaning of Section 8 (2) of the Act , and pur- suant to Section A0 (c) of the Act, the National Labor Relations Board hereby orders that Western Cartridge Company, Winchester Repeating Arms Company Division, New Haven , Connecticut, and its officers, agents, successors , and assigns, shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of Em- ployees Representation Plan and Winchester Council, and -dominat- ing or interfering with the formation or administration of any other labor organization of its employees , and from contributing financial or other support to Employees Representation Plan, Win- chester Council , or any other labor organization of its employees; (b) Recognizing Employees Representation Plan or Winchester Council is the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment , and other conditions of employment; (c) Interfering, with, restraining,` or coercing its employees in the exercise of their rights to self-organization by dominating or inter- fering with the formation 'or administration of any organization of its employees. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withdraw and withhold from Employees Representation Plan, Winchester Council, or any successor of either of said organizations, any and all recognition as representative of any of its employees for the purpose of dealing with the respondent ' concerning grievances, WESTERN CARTRIDGE COMPANY 205 labor disputes, wages, rates of pay, hours of employment, or other . conditions of employment; (b) Delete from all literature distributed by it to its employees any reference to the continued existence of Employees Representa- tion Plan or Winchester Council; (c) Post notices to its employees in conspicuous places 'throughout its plant at New Haven, Connecticut, and maintain such notices for a period of at least sixty (60) consecutive days from the date of post- ing, stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 (a), (b), and (c) of Section B of this Order; and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) and (b) of Section B of this Order; (d) 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 herewith. , j