Harbison - Walker Refractories Co.

In the Matter Of HARBISON-WALKER REFRACTORIES COMPANY and UNITED BRICK AND CLAY WORKERS of AMERICA, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C-0164.-Decided August 07,'1942 Jurisdiction : fire brick and other refractory products manufacturing industry. Unfair Labor Practices. - Interference, Restraint, and Coercion: anti-union statements ; disparaging union organizers ; threats of discharge because of union activities ; prohibition of union activities, permission of anti-union activities, on respondent's property; posting of notice that "open shop" policy of respondent would continue as theretofore, where respondent's entire course of conduct theretofore was in opposition to the self-organizational efforts of its employees. Discrimination: discharge of employee because of union membership and activi- ties; alleged reason for discharge that employee violated working rules re- jected, where a discharge would not' have resulted under the respondent's usual practice and where respondent failed to discharge a non-union employee concurrently guilty of violating working rules. Remedial Orders : reinstatement of employee with back pay.; employer ordered to cease and desist unfair labor practices. . ^ , Mr. Charles K. Hackler, for the Board. Mr. W. Wallace Fry and Mr. Frank B. Edwards, of Mexico, Mo., for the Company. - ' Mr. Gerard J. Manack, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges duly filed by United Brick and Clay Work- ers of America, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourteenth Region (St. Louis; Missouri), issued its complaint dated February 28, 1942, against Harbison-Walker Refractories Company, Vandalia, Missouri,, herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce, 'ithiii 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, accompanied by'notice of hearing, were duty,-served upon the respondent and the Union., 43 N. L. It. B., No 109. 711 712 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD With respect to the unfair labor practices, the,complaint alleged, in substance, that: (1) on or about November 1, 1911, the respondent discharged Herbert Hillebrand because of his union membership and -activities;, and (2) by the foregoing act, and by (a) threatening to ,discharge employees for forming, j6ifiiiig; or assisting the Union, (b) making investigations among its employecs to determine their union affiliations 'and activities, (c) making' statements to its employees that employees in similar occupations with other companies were re- ceiving less wages under contracts allegedly in force with the Union, (d) threatening to discharge employees if they engaged in solicita- tion for union membership, and (e) posting a written notice in its plant ' on or about November 27, 1941, prohibiting solicitation for union membership or signing of members in any labor organization upon the respondent's property,' the respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On March 12, 1942, the respondent filed its answer admitting the 'allegations of the complaint as to its business, the lay-off and dis- charge.of Herbert Hillebrand, and the posting of a notice on Novem- ber ,27, 1941, but denying that it had engaged' in any unfair labor practices. Pursuant to notice, a hearing was held at Vandalia, Missouri, on March 19, 20, 23, and 24, 1942, before Peter F. Ward, the Trial Ex- aminer duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and participated 'in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the close of the Board's case, a motion by counsel for the Board to conform the pleadings to the proof in formal respects was granted without objection. At the close of the respond- ent's case, a motion by counsel for the Board to amend the complaint by adding the allegation that,the respondent permitted, authorized, encouraged, and 'assisted employee Raymond Brown in placing a peti- tion in respondent's plant for employee" signatures stating that the signers thereof desired no union, was granted; whereupon the respond- ent requested and was granted leave to adduce additional testimony relative to this issue. Various 'rulings were made by the Trial Ex-, aminer on other motions and objections to the admission of evidence, -during the course of the hearing. The Board has reviewed the rulings and finds that no prejudicial errors' were committed. The rulings of the Trial Examiner are hereby affirmed. ,On April 17, 1942, the Trial Examiner filed his Intermediate Report, copies of which were 'duly served upon the parties, in which he found that the respondent 'had engaged in and was engaging in unfair labor HARBISON-WALKER REFRACTORIES COMPANY 713 practices within the meaning of Section 8 (1) and (3) and Section-2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and take certain affirmative action, including rein- statement with back pay, deemed necessary to effectuate the policies of the Act. Thereafter the respondent filed exceptions to the Interme-, diate Report and a brief in support thereof. Pursuant to' notice, a hearing for the purpose of oral argument was held on June 18, 1942; before the Board at Washington, 'D. C. The respondent and the Union were represented by counsel and participated in the hearing. The Board has considered the respondent's exceptions and brief, and insofar as the exceptions are inconsistent with the findings, con- clusions, and order set forth below, finds them to be without merit. Upon the entire record in. the case, the.Board makes the. following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT . The respondent, a Pennsylvania corporation, having its principal office and place of business at Pittsburgh, Pennsylvania, is engaged in the manufacture and sale of fire brick and other refractory products. In connection with its business, the repondent operates 20 plants, lo- cated in Pennsylvania, Missouri, Texas, Indiana, Ohio, and Kentucky=., The only plant involved in this proceeding is one located at Vandalia, Missouri. During the last 6 months of 1941, the respondent purchased raw materials for its Vandalic plant valued at $74,700, approximately 25 percent of which was received from, points outside the State of Missouri. During the same period, the respondent sold and shipped finished products from the Vandalic plant valued at approximately $1,000,000; of which approximately 98 percent was shipped to points outside the,State of Missouri. H. THE ORGANIZATION INVOLVED United Brick and Clay Workers of America is a labor organization affiliated with the American Federation of Labor, admitting to mem- bership employees of the respondent. - III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion So far as the record discloses, there was no labor organization in the respondent's Van'dalia plant prior to October 1, 1941.1' On Sep- tember 24, 1911, an informal meeting was attended by, a few em- ' As is set forth below, an attempt to organize the employees some years before was frustrated by the circulation in the plant of an anti -union petition, which.was signed by all but a few of the employees. 714, DECISIONS OF NATIONAL LABOR RELATIONS BOARD . ployees who were interested in joining a union and plans were made for a .further meeting. On October 1 a second' meeting was held at a local union hall in Vandalia, and attended by two union organizers. On this occasion a local organization limited to' employees of the respondent was perfected, a number of the employees joined, and an organizing committee composed of Martin Hillebrand, Robert Morris, Forest Johnson, Stanley Smith, and Herbert Hillebrand, all shipping department employees; was appointed. Other meetings were held after October -1 and additional employees joined the Union. By November 1 about 42 employees, 28 to 30 of whom were employed in the respondeDt's shipping department, had become members of the Union.2 Martin' Hillebrand, an employee in the shipping department, be- sides being a member of the union organizing committee, was the employee most 'active in behalf 'bf the Union. On the evening of October 2, 1941, Hillebrand entered a dog belonging to Gerald Jordan, a subforeman in the shipping department, in a dog show and received a prize. On the following morning, C. C. Hardy, super- intendent of the_ Vandalia plant, and A. R. Maune, foreman of the shipping department, approached Martin Hillebrand in a freight car where he was unloading brick, and a conversation took place concerning which Hillebrand testified, without contradiction, as follows : A. . . . Mr. Hardy made the statement to me "Martin, I hear you won a ribbon last night" and I said "No, Mr. Hardy, the dog won the ribbon" and Mr. Hardy said "Oh, yes. Neither you or I-could will any prize," and I said "I expect you have some- thing there," and he said "But I didn't hear you won any prizes the night before." Q. What was the date of the night before? A. October' 1st. That, was the night of the union meeting and that is what I am sure he had reference to. Q. Finish the conversation? A. Well, he said "I understand you didn't win any prize the night before" and I said "I am not sure all of the prizes have been given out." Q. What further statements were made? A. He said "I didn't know anything about it until this morn- ing." I said "Mr. Hardy, that thing is coming just as sure as death and taxes." Q. What did he say after that? A. He said "That depends on the individual" and turned around and walked away. 2 As discussed below, Herbert Hillebrand was laid off on this date. HARBISON-WALKER REFRACTORIES COMPANY - 715 , Hillebrand testified that Hardy did not come into the freight cars frequently, and apparently had no other reason for being there upon this occasion. We credit the testimony of Martin Hillebrand, as did the Trial Examiner, and find that the conversation took place' substantially as set forth above and that Hardy's remarks referred to the union activities of Martin Hillebrand. Martin Hillebrand further testified that about -October 3 Sub- foreman' Jordan questioned him concerning the .union meeting of October 1; that upon being told that "quite a crowd" had attended Jordan stated "I surely hate to see it came in here -The first thing they want 'to do is strike"; and that when Hillebrand stated he wanted an organization for the purpose of improving working con- ditions, he [Jordan] went on to tell lme for me to remember that he had' gone to me on several, occasions and on several occasions he had saved me from getting fired, `and when I did' get it to always remember he had treated me well; and I said "I don't see where 'you have any right to any personal feeling in, the matter. The organizing of unions is a personal matter, and I don't see where it can affect you in any way." He said "That'don't make,,ltiny difference; I am going to get you any way." I said -"You can't fire me for that", and he said "No, but I aln going to bend down and sooner or later I am going to get you." Jordan denied that he had threatened "to get" Hillebrand. He admitted, however, that he had a conversation with Hillebrand concerning the Union, during the course of which he "blew off" his "head" and reminded Hillebrand of the many favors that he had rendered Hillebrand, and stated that he believed he could "fire"• Hillebrand "for loafing." We credit the testimony of Hillebrand, as did the Trial Examiner, and find that Subforeman Jordan inter- rogated Hillebrand concerning the Union and threatened Hillebrand with discharge because of his union activities .3 Martin Hillebrand further testified that during October' 1941, while he and two other employees were unloading brick in a freight car, he informed the other employees that the Union had a contract with the .Laclede-Christy Company of St. Louis, Missouri, another, refractories company, in which the base rate of pay for one type of employee was higher than the rate paid the same type of employee in the respondent's plant. According to Hillebrand, Maune over- heard the remark, came into the car, and told Hillebrand that "that 'The respondent asserts that it is not chargeable with Jordan 's conduct . However, Jordan admittedly was a supervisory employee with authority to hire and discharge, and we find , as did the Trial Examiner , that his activities above described are attributable to the respondent. - . 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not' the -truth and he would not stand for" Hillebrand "circu- lating . . . a damned lie." fl ' An argument 'ensued between Maune and Hillebrand during which Maune stated, according to Hillebrand, ,that "all the union organizer there wanted was the membership fees and that he would be willing to sign a contract at any price in order to get the fees from the members." Maune admitted having an argument with Hillebrand and did not deny that he had stated to 'Hillebrand that the union organizer was interested only in the collec- tion of fees.' We credit the testimony of Hillebrand, as did the Trial Examiner, and find that Maune made the remarks above at- tributed to him by Hillebrand. According to the testimony of Maune, sometime during October 1941, Subforeman Jack Jackson reported to Maune that Martin Hille- brand was soliciting `for the Union during working hours, and that Maune thereupon advised Martin Hillebrand to stop soliciting mem- berships on company property.' According to Maune's admission, he further stated to Martin Hillebrand that the, latter seemed to be "awfully dissatisfied" and\ that he would like to know what the trouble was and ,wished he had time to sit down and discuss the matter with Hillebrand. We credit the foregoing testimony of Maune; as did the Trial Examiner. Claude Moore, a mechanic who had been in the employ of the respondent for 9 years, testified that during October or early Novem- ber, he was engaged in- conversation by Foreman Maune, who stated that he had been informed that Moore had solicited memberships din the Union. Maune also stated that if Moore solicited on company property he would be discharged. 'Moore was not and had never been ti member of the Union and had not in fact solicited for the Union, but did speak favorably of it. Maune admitted the above conversation with Moore. We 'credit the testimony of Moore, as did the Trial Ekaminen. - ' Robert M. Morris, a friend of Subforeman Jordan, was - formerly employed by the respondent at another of its plants and, through Jor- dan's influence, secured a position at the Vandalia plant, where he worked from May 1941 to December 8, 1941. Morris joined the Union on October 1 and was appointed a member of the organizing commit- tee. Morris admitted-that on or about October 3, he reported for work in poor physical condition and, that Jordan sent him home.' First, 4 Neither party offered the ' contract in evidence , and the record does not establish the rates of pay provided therein G Maune testified that he had procured his information relative to the Laclede-Christy Company pay sates prior to the above-described argument with Hillebrand. ° Herbert 1-hllebrand testified that he was present at the time and that Maune stated he wanted both of them "to understand -that " Maune denied that Herbert was, present., we credit the testimony of Herbert Hillebrand in this respect. Jordan testified ' that Morels admitted that he had been ' drinking after the union meeting on the preceding evening. HARBISON-WALKER REFRACTORIES COMPANY 717 however, according, to Morris' testimony, Jordan asked Mortiris if he had been attending union meetings; and when Morris replied that he had, Jordan advised Morris that it was not permissible to solicit for' the Union, and stated further, "We don't want any union here. We can't fire for talking about the union, but we can find something to fire for.',' Jordan denied that he knew Morris was a member 'of the Union or its organizing committee, and also denied that he had made the statements attributed to him by-Morris. The Trial Examiner, who observed the witnesses, did not credit Jordan's denials. We find, as did the Trial' Examiner, that Jordan made the statements. testified to by Morris. Stanley Smith, an employee who was a unioii.member and one of the organizing committee, testified, without contradiction, that on or about October 15, 1941, Arlie Horton, foreman of the grinding room, asked Smith his opinion of the Union. Smith informed Horton that he thought the Union was a "pretty good thing," that he thought em- ployees could get higher wages, and that "when things get bad we might not get our wages cut as 'quick if we were organized." There- upon Horton advised Smith that "the less we had to do with the union the better off it would be for everybody concerned." We find, as did the Trial Examiner, that Foreman Horton made the statements attrib- uted to him by Smith. As previously stated Martin and Herbert Hillebrand, Moore, and Morris had all been summarily prohibited from engaging in union. activity in the plant. However, the respondent applied a contrary, rule with respect to anti-union activities. Thus, on a day between September 27 and November 1, 1941, Raymond Brown, an employee, discussed the Union with Foreman Maune and Subforeman Jordan during working hours. According to Brown's testimony's Maune stated that he "didn't think much of the union," and both Maune and Jordan assented^to'Brown's suggestion that',he circulate an anti-union petition in the plant. Consequently Brown procured" a petition, drafted by the editor of a local paper, to-the effect that the signers thereof opposed the Union, and placed it on a table near the shipping, office in the respondent's plant for the purpose of procuring employee signatures. • After the petition had remained on the table for several hours, it was withdrawn at the direction of Maune. Brown further testified that the`idea for circulating such ,a petition arose from the fact that a , number of years prior to the union activity in October 1941 there had been an attempt by a labor organization to' organize the employees, at which time similar petitions were' circulated and signed by all but a few of the employees then employed by the respondents Maune testified that when Brown, spoke.to him about 9 Brown testified as a witness for the respondent D Maune likewise testified as to the circulation of the previous petition. 718 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD the petition Maune did not "tell him - definitely if he could or could not" circulate the petition. Maune further testified that after the petition `was placed on the table in the plant, he did not immediately direct Brown to cease his anti-union activity and remove the petition, butt instead had consulted Superintendent Hardy and only after re- :ceiving'the latter's advice had he "requested" or "advised" Brown that "he [Brown] had better discontinue the petition or do away with it," and only then told Brown that it was against the respondent's policy to permit ,solicitation in the plant. We find, as did the Trial Exam- iner, that the respondent permitted the circulation of the anti-union petition in the plant; ' That the respondent's rule against solicitation in the plant was ,only applied to union activity is further shown by the testimony of employee Ben Perry.10 Perry testified that he was opposed to the Union and had expressed his disapproval of the Union while at work a number of times. According to his-testimony, during the period from the organization of the Union to November 1, 1941, he took anti-union newspaper clippings into the plant and showed them to employees. On one of these occasions, he showed a clipping to Martin and Herbert Hillebrand, who he knew were members of the Union, ivhile.they were working-in a freight car, and an argument ensued. During the course of the argument, Subforeman Jordan came into the car and Perry showed the clipping to Jordan. The argument then continued in Jordan's presence: Neither Jordan fior any other .person warned Perry to cease his anti-union activities during working hours. We credit the testimony of Perry, as did the Trial Examiner. Although the Union discontinued its meetings by the latter part of November 1941 and organizing activities virtually ceased, the 'respondent contended that some of its employees requested a state- ment ' of 'its policy, and-that, pursuant to this request, the respondent, on November 27; 1941, posted on all of the 15 bulletin boards in its plant the following "Notice to Employees" : IT IS THE POLICY OF THE COMPANY TO COMPLY IN THE FULLEST SENSE WITH THE NATIONAL LABOR RELATIONS ACT. THERE WILL BE NO DIS- "CRIMINATION, INTERFERENCE, RESTRAINT, OR COERCION BY THE COMPANY OR ANY OF ITS REPRE- SENTATIVES AGAINST ANY EMPLOYEE BECAUSE OF MEMBERSHIP OR NON-MEMBERSHIP IN ANY LABOR ORGANIZATION. THE OPEN SHOP POLICY, OF THE COMPANY CON- TINUES AS HERETOFORE. OUR EMPLOYEES CON- TINUE TO HAVE THE RIGHT, AS HERETOFORE, TO 10 Perry testified , without contradiction , as a witness for the respondent. HARBISON-WALKER REFRACTORIES COMPANY -719 DECIDE FOR THEMSELVES WHETHER THEY WILE, OR WILL NOT, JOIN A LABOR ORGANIZATION': THIS, BY THEIR OWN CHOICE, FREE FROM ANY, INTER- FERENCE, RESTRAINT, COERCION OR INTIMIDATION IN ANY FORM OR FROM ANY SOURCE. MEMBERSHIP OR NON-MEMBERSHIP IN ANY LABOR ORGANIZA- TION SHALL NOT GOVERN SENIORITY, PROMOTIONS OR LAY-OFFS. INTIMIDATION OR COERCION OF EM- PLOYEES BY ANY UNION, OR LABOR ORGANIZATION IS ALSO PROHIBITED. NO SOLICITATION FOR MEM- BERSHIP OR SIGNING OF MEMBERS IN ANY LABOR ORGANIZATION IS PERMITTED AT ANY TIME UPON THE COMPANY'S PROPERTY. OUR FOREMEN AND SUPERVISORS HAVE BEEN SPECIFICALLY INSTRUCTED TO COMPLY WITH THIS POLICY. - H ARBISON-WALKER REFRACTORIES COMPANY [s] C. C. Hardy. SUPERINTENDENT November 27, 1941 It is clear, and we find, that this notice, in the context of the respond- ent's entire course of conduct in opposition to the self-organizational efforts of its employees; constitutes an interference with the em- ployees' rights to self-organization. The statement that an, "open shop" policy, will be continued "as heretofore" when applied to a , . situation where the employees have shown an interest in a bona fide union and where the respondent has clearly indicated its opposition to the Union, both by supervisory interference and the discriminatory discharge of an active Union adherent, as hereinafter found, is equivalent to stating that the employer will continue to oppose the Union. Moreover, the innuendo contained in the general injunction against "intimidation or coercion 'of employees by any union" where, from the entire record, there is not the slightest indication of the use of such tactics by the Union, can be intended only to reflect discredit upon the Union. Further, the prohibition against solicitation or signing of members "in any labor organization" on company property_ is clearly violative of the Act where a similar prohibition is not im- posed on activities such as solicitation against union membership: These provisions, manifestly designed to discourage union activity, completely nullify the asserted neutrality contained in the first paragraph of the notice. . We find, as did the Trial Examiner, that by its `course of conduct as evidenced in the statements and activities of Hardy, Maune, Hor- ton, and Jordan, set forth above, by the prohibition of union'activity 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on its property while permitting anti-union activity, and by posting the above-described notice, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. I B. The discriminatory discharge of Herbert Hillebrand The complaint alleges that on November 1, 1941, the respondent laid off Herbert Hillebrand and thereafter, on November 6, dis- charged•him because he joined and assisted the Union. The respond- ent's answer admits the lay-off and discharge, but denies that such -acts were occasioned by Hillebrand's activities in behalf of the Union. ' Herbert Hillebrand was employed by the respondent on January 17, 1940. He was first employed as a 'wheeler," and continued in that capacity until October 1940, when he became a hacker. In June 1941, Hillebrand became a'pick-up man, in which work- he was engaged until his discharge. Od November 1, Herbert Hillebrand and T. C. Dickson, a wheeler, unloaded a wheelbarrow of brick in a freight car at a time when the hacker, Martin Hillebrand, and the other wheeler, E. M. Childs, were removing broken or defective brick from the kiln. Subforeman Jack Jackson reported this incident to Foreman Maune, and suggested that Herbert Hillebrand be discharged. After Jackson consulted with Maime, Herbert Hillebrand and Dickson were called to the freight car and were asked by Mature if they had unloaded the brick. Each admitted that he had. Thereupon Jackson told them both to go home; and advised them that they would be called when needed. On November 6 Hillebrand was called to the plant and informed by Maune that he, was discharged 'for violating the rule prohibiting un- loading by a pick-up man .12 On the same day, Dickson was recalled to work. 11 All of Hillebrand's work for the respondent was in the shipping department as a member of a loading crew A loading crew consists of a pick-up man , a hacker, and two wheelers The pick-up man is technically in charge of the crew. He unloads brick from kiln trucks to wheelbarrows with the assistance of the wheelers . The bricks are then transported by the wheelers to freight cars for shipment , or to "stock hacks" where they are stored for later shipment The pick-up man has the duty of seeing that the brick are accurately counted onto the wheelbarrows and that inferior brick are discarded, and to keep a tally of the number of brick handled by the crew The pick-up tally sheet is used as the basis foi determining the wages of the crew The piece rate earnings received by the crew are divided equally, among its members The hacker has •ehaige of loading brick into freight cais or onto stock hacks He, with the assistance of the wheelers, unloads the wheelbarrows The hacker also tallies wheelbarrow loads placed into a car or on stock hacks and, while not chargeable with the same degree of care as a pick-up man 'in inspecting the brick, is requited to d scard inferior brick which come to his notice. "There is evidence in the record that IIillebrand,and Dickson not only violated tile rules, but that the brick which they unloaded were improperly placed in the 'fieiglit car and that some of them were _of pooi quality Superintendent Hardy testified , however, that the dischaige was occasioned by the violation of the rifle against unloading and both Hillebrand and Foiema.n Diaune testified that Maune told Hillebrand on November 6-that his discharge was occasioned thereby. - HARBISON-WALKER REFRACTORIES COMPANY ' 721, The respondent has no, written or posted working rules. It has, however, a number of unwritten rules applicable to loading crews,-, which have, been established over, a period of years and have become known to employees in the course of their work. . The principal rules are that wheelers may not unload more than one-half of a wheel' barrow in the absence of the hacker,13 and that a pick-up man may not unload at all .14 The loading crews, when engaged in loading freight cars, are paid at piece rates. When the brick are taken from the kilns, the hacker and a wheeler remove the broken or defective brick. During this time the hacker and wheeler may be absent from the loading opera- tions for lengths of time varying from a few minutes to a quarter of an hour or more, thus preventing a continuous flow of brick to freight cars and thereby reducing the earnings of the crew. A,s a result, according to the testimony of numerous witnesses, which' 'we credit, the pick-up men and the wheelers, notwithstanding the recognized rule against such action, frequently load' one or more wheelbarrows of brick in the freight car during the absence of the hacker. Moreover, numerous witnesses, whom we credit as did the Trial Examiner, testi- fied that such violations, when not entirely overlooked, brought mere' reproofs from the supervisors, or, in a few instances, a lay-off for a few days. The respondent asserts that it'has no fixed policy with respect to disciplining employees for violations of its rules and that each case is decided upon its own facts. However, Foreman Maune admitted that he knew of no prior instance of an employee being discharged for a violation of these rules, and Subforeman Jackson admitted that if an employee "had been a good man" he would not be discharged for violating a rule. As described above, Herbert Hlllebrand worked for the respondent over a period of nearly 2 years, during which time he performed the duties of each job within a crew and was promoted to be a pick-up man, the leader of a crew. He testified, and there was no evidence to controvert it, that he had never been criticized for his work until after he joined the Union. Upon all the evidence, we find as did the Trial Examiner, that Herbert Hillebrand was a capa- ble employee. This was so stipulated by the parties at the hearing n Duiing the hearing, the respondent endeavored to show that the rules do not prohibit the unloading of a wheelbarrow by a pick-up man when in the presence of the hacker. Numerous witnesses for the Boaid and the respondent testified to the contrary, however, and it developed at the hearing that the fix * st time the employees heard any suggestion that a pick-up man might unload in the presence of a hacker was about a week prior to the hearing, at a time when Forennui Maune and counsel for the respondent were inter- viewing employees in connection with the hearing Indeed, Raymond Brown, a witness for the respondent, testified that during the week preceding the hearing a pick-up man had been instructed by Subforeman Albert Phillips to stop unloading ,a wheelbarrow even though the hacker was present. We find, therefor e, that the rules did not pei mit - the unloading of brick by a pick-up man in the presence of a hacker 431039-42-vol 4; 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 722 I The respondent also seeks to distinguish the treatment accorded Hillebrand from that accorded violators who were not discharged by asserting that this was Hillebrand's second offense and that he had been warned upon a prior occasion that he would be discharged if he violated,the rule again. The record establishes that shortly after October 1, when, Hillebrand joined the Union, he unloaded a wheel- barrow of brick and that Subforeman Jordan observed him. Accord- ing, to the testimony of Hillebrand, Jordan told Hillebrand that he was violating the rules and that it would be best for him not to do so. Jordan testified that he warned Hillebrand that he would be dis- charged upon a subsequent violation. We do not credit the testimony of Jordan in this respect, particularly in view of the respondent's policy not to discharge for violations of this rule and of the uncon- tradicted testimony of Martin and Herbert Hillebrand that just about 1 week before Herbert's discharge, Herbert assisted Martin Hille- brand in unloading a wheelbarrow in the presence of Foreman Maune, and-that Maune did not reprimand him.',' Under the circumstances above-detailed we find that Herbert Hille- brand's violation of the rule would not have resulted in a discharge under the respondent's usual practice. We consider it especially sig- nificant that Dixon, who was not a member of the Union, was not discharged although both were guilty of violating one of the rules -concerning unloading.- That the controlling, cause of the discharge was not the violation of the rule is further supported by the testimony of 'Claude Moore, a shipping department employee. Moore testified that a few-days subsequent to Herbert Hillebrand's discharge he over- heard Subforeman Jordan remark to Subforeman Jackson that "they should have gotten both of them instead of one of-them," referring to the Hillebrand brothers. Jackson denied this conversation ; Jor- cl'an testified that he could not recollect it. Moore had never be- longed to the Union and no reason appeared on the record for him to misrepresent the situation., We credit Moore's testimony. As stated above, Martin Hillebrand- was the most active member of the Union. Furthermore, the record shows no violation of rules by Martin nor any other reason for Jordan's expressing a desire for his ,discharge. It appears, therefore, that the only reason for Jordan's is See footnote 14, sepia "The respondent contends that it retained'Dixon- because he was a "good man" and was guilty of only one infiaction of the rules This contention is without merit in view of our findings above that Hillebrand was a satisfactory employee, that respondent did ,not discharge "good men" for violating the rules, and that there is no evidence that second time violators were discharged 'nowever, since both Dixon and Herbert Hillebrand cwere accorded equal treatment in being laid off and there is some evidence that the re- spondent disciplined violators on occasion by laying them off for a few days , we do not find the lay-off discriminatory HARBISON-WALKER REFRACTORIES COMPANY 723 statement concerning the desirability of Martin Hillebrand's dis- charge was his union activity. Finally, the respondent contends that it had no knowledge of Herbert Hillebrand's union membership or activities: That there is no merit,' to this contention is amply demonstrated, by the` facts set - forth above. We find that the respondent had knowledge of Herbert Hillebrand's union activities at the time of his discharge. Upon all the evidence, we find, as did the Trial "Examiner, that Herbert Hillebrand was discharged on November 6;• 1941; because of his union membership and activities, and that, by his'discharge, the respondent has discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union and interfering with, restraining, and coercing its employees in the exer- cise of the rights. guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation,to'trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing- commerce and the free flow of commerce. V. THE REMEDY Having ' found that- the respondent has engaged in certain unfair labor practices we shall order it to cease and desist,from such prac- tices and to take certain affirmative action which we-deem necessary to effectuate the policies of the Act. We have found that the respondent has discriminated in regard to the hire and tenure of employment of Herbert Hillebrand. We shall, therefore, order the respondent to offer. Herbert Hillebrand immediate and full reinstatement to his former `or a substantially equivalent position, without prejudice to his seniority or other rights and privileges. We shall'also order that the respondent make Hille- brand whole for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to him of a sum of money equal'to the amount which he normally would have earned as wages from November 6, 1941, to the date of the offer of reinstatement, less his net earnings during such period.17 "By "net earnings"- is meant earnings Less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working elsewhere than for the respondent , ,Nhich would not have been incurred but for the dis- crimination and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lune er Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L . R B 440. 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have found that the respondent by various acts other than the discharge of Herbert Hillebrand has evidenced a purpose to defeat the rights of self-organization which the Act was designed to protect. In view of this course of conduct we deem it necessary. and shall direct that' the respondent cease and' desist from in any manner infringing the rights guaranteed by Section 7 of the Act. Upon the foregoing' findings of fact and upon the entire record in the case, the Board makes the following CONCLUSIONS OF LAW 1. United Brick and Clay Workers of America, affiliated with the American Federation of Labor, 'is a labor organization, within the meaning of Section 2 (5) of tie Act. 2. The respondent, by discriminating in regard to 'the hire and tenure of employment' of Herbert Hillebrand, thereby discouraging membership in a' labor organization, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the, Act, 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, withiii the meaning of Section 2 (6) and' (7) 'of the Act. ORDER Upon the basis of the foregoing findings of 'fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations ,Board hereby orders th'a't the respondent, Harbison-Walker Refractories Company, U,andalia, .Missouri, and' its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in United Brick and Clay Workers of America, affiliated with the American Federation of Labor, or any other labor organization of its employees, by' laying' off, dis- charging, 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 employment; (L) In any other manner interfering n ith, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own, choosing, and to engage in HARBISON-WALKER REFRACTORIES COMPANY 725 concerted activities for the purpose of collective bargaining or other mutual aid or, protection , as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the,policies of the Act : (a) Offer to Herbert Hillebrand immediate and full reinstatement' to his former 'or substantially ' equivalent position , without prejudice to his,seniority and other rights and privileges ; (b) Make whole said Herbert Hillebrand for' any loss of pay he may have suffered by reason of his discriminatory discharge, by payment to him of a sum equivalent to the amount which he normally would have earned as wages from November 6 , 1941, to the date of the respondent's offer of reinstatement , less his net earnings during said period; (c) Immediately post in conspicuous places in .and about its plant in Vandalia, Missouri, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its em- ployees stating : ( 1) that the respondent will not engage in the conduct from which it is ordered that it cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that it will take the affirmative action set forth in paragraphs 2,(a) and (b) of this Order; and (3) that the respondent 's employees are free to become or remain mem- bers of United Brick and Clay Workers of America , affiliated with the American Federation of Labor, 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 Fourteenth Region in writing within ten (10) days from the receipt of this Order what steps the respondent has taken to comply herewith. QHAIR-NIAN MILLls, took no part in the consideration of the above Decision and Order. '