Los Angeles Brick & Clay Products Co.

In the Matter of Los ANGELES BRICK & CLAY PRODUCTS Co. and ALBERHILL CLAY PRODUCTS WORKERS' UNION No. 373 Case No. C-584.-Decided February 27, 1939 Brick and Clay Products Manufacturing Industry-Interference, Restraint, and Coercion: refusal to bargain collectively ; discriminations in regard to hire and tenure of employment-Unit Appropriate for Collective Bargaining: no controversy ; all employees of respondent at its Alberhill plant, including the pits, excluding foremen, supervisors , and office employees-Representatives: proof of choice : membership application cards ; no controversy-Collective Bar- gaining: employer's duty during strike; refusal of request by Regional Direc- tor ; ignoring union's request for conference to negotiate agreement-Strike: prolonged by unfair labor practices-Discrimination: refusal to reinstate strikers : delayed reinstatements ; hiring of new employees ; charges of, in regard to terms and conditions of employment , dismissed as to one employee- Reinstatement Ordered: 15 strikers named in complaint , as amended, and, upon application , 21 other strikers not named , dismissing employees hired since initial refusal to bargain, if necessary ; preferential list-Back Pay: awarded : employees refused reinstatement ; from September 1, 1937, date when substantially normal operations were resumed , until date of offer of rein- statement or placement on preferential list. Mr. Frank A. Mauritsen, for the Board. Ellis, Howlett d MacLaren, by Mr. E. H. Howlett and Mr. Towson T. MacLaren, of Los Angeles, Calif., for the respondent. Mr. William Gateley, of Los Angeles, Calif., for the Union. Mr. David Y. Campbell, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Alberhill Clay Products Workers' Union No. 373, herein called the Union, the National Labor Relations Board, herein called the Board, by Towne Nylander, Regional Director for the Twenty-first Region (Los Angeles, California), issued its complaint dated December 9, 1937, against Los Angeles Brick & Clay Products Co., Alberhill; California, herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- 11 N. L. R. B., No. 56. 750 LOS ANGELES BRICK & CLAY PRODUCTS CO. ET AL. 751 merce, within the meaning of Section 8 (1), (3), and (5) 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 duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance, (a) that on various dates between June 2 and June 10. 1937, the respondent discharged 13 employees 1 and at all times there- after refused to reinstate them, for the reason that they joined and assisted the Union; (b) that on or about June 25 and at all times thereafter the respondent refused to reinstate certain other named employees; 16 in number, for the reason that they joined and assisted the Union; (c) that on or about June 25 the respondent reinstated Sam Dabich and Nils Martinson but deprived them of all rights and privileges previously enjoyed by them, reduced their rates of pay and wages and assigned them to work different from their former positions, for the reason that they joined and assisted the Union; (d) that on or about June 10 and at all times thereafter the respond- ent refused to bargain collectively with the Union as the representa- - Live of its employees in an appropriate unit, although the Union has been designated by a majority of employees therein as their repre- sentatives; (e) that by the afore-mentioned acts, the respondent in- terfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent, in its answer filed at the hearing, denied that it was engaged in or that its business affected interstate commerce, and denied the allegations of the complaint as to the unfair labor practices. Pursuant to an amended notice, a hearing was held on December 16, 17, 20, 21, and 22, 1937, at Riverside, California, and on December 30, 1937, and January 10, 1938, at Los Angeles, California, before Dwight Stephenson, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and partici- pated in the hearing. The Union was represented by its international organizer and likewise 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 hearing the respondent moved to dismiss the complaint on the ground 1 The names of these employees are : William Ashworth , Albert Davis, Lawrence German, James Grier, Edward Hannum, Lester Hazelton, L. McNutt, Arnold Moss„Claude Pearl, Thomas Roddy, C. Starr, Gerald Wenker, Charles Willard. 2 The names of these employees are : Charles Bland, Gregorio Cordero, Sam Dabich, Mark Damron, M. G. Eaglin, M. J. Eaglin , Frank German, Art Hannum , C. Lucas, Raymond Macht, Nils Martinson, Kenneth Norris, Sylvester Osborne, Juan Romero , Ernest Sill, Glenn Stewart. 752 DECISIONS Olf NATIO.11TAL. LABOR BELATioNS BOARD that the Board had no jutisdictioli of the snhject matter. This mo- tion was denied by the Trial Examiner at the conclusion of the hear- ing. On the first day of the hearing counsel for the Board moved to amend the complaint to include the name of Henry Boontjer among the names of employees alleged to have been discriminated against. This motion was allowed by the Trial Examiner. The hearing continued for 6 days thereafter, over a period of some 25 days, and the issues raised by the amendment are substantially the same as those which existed under the original complaint. The Trial Examiner's ruling is hereby affirmed.3 Counsel for the Board also moved to dismiss the allegations of the complaint as to 11 named persons 4 on the ground that they had failed to appear at the hear- ing. This motion was allowed by the Trial Examiner. The Trial Examiner made various rulings on other motions of the parties, and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On April 30, the Trial Examiner issued his Intermediate Report, which was filed with the Regional Director and duly served upon all the parties, finding that the respondent had engaged in and was en- gaging in unfair labor practices, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from its unfair labor practices; reinstate, with back pay, certain of its employees found to have been discriminated against in regard to hire and tenure of employment ;5 upon request, bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit ; and take certain other appropriate action to remedy the situa- tion brought about by the respondent's unfair labor practices. The Trial Examiner also recommended dismissal of the complaint, as amended, as to M. G. and M. J. Eaglin on the ground that they had failed to appear and testify at the hearing.6 On May 11, the Union 3 Cf. National Labor Relations Board v. American Potash and Chemical Corporation, 98 F. (2d) 488 (C. C. A. 9th ). See also Matter of McKaig-Hatch, Inc. and Amalgamated Association of Iron, Steel, and Tin Workers of Noith America, Local No. 1139, 10 N. L. It B 33 A The names of these persons are as follows : Charles Bland , Mark Damron, Albert Davis, Raymond Macht, Nils Martinson, Kenneth Norris, Claude Pearl, Juan Romero, C. Starr, Ernest Sill, Charles Willard. s The names of these employees are : William Ashworth, Henry Boontjer, Frank German, Lawrence German, James Grier, Edward Hannum, Lester Hazleton, Lawience McNutt, Arnold Moss, Sylvester Osborne, Thomas Roddy, Glenn Stewart, Gerald Weaker. While the Trial Examiner also found Chester Lucas and Art Hannmu were similarly discrimi- nated against, their names were omitted from his recommendations. No recommendation was made with respect to Sam Dabich , whom the Trial Examiner found to have been discriminated against as to terms and conditions of employment. 9 There was no recommendation as to the dismissal of Gregorio Cordero's name from the complaint , although the Trial Examiner failed to find that he has been discriminated against. LOS ANGELES BRICK R, CLAY PRODUCTS CO. LT AL,. 753 filed exceptions Lo Llle IIiernledlate Report. These exceptions deal with certain omissions from the Trial Examiner's conclusions and recommendations therein, above noted.7 On May 31 the respondent filed its exceptions. The parties, although accorded an opportunity for oral argument before the Board, made no request therefor. We have considered both the respondent's and the Union's exceptions to the Intermediate Report, and in so far as they are inconsistent with the findings, conclusions, and Order below, find 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, Los Angeles Brick & Clay Products Co., is a California corporation engaged in the business of manufacturing, selling, and distributing brick, tile, sewer pipe, and flue lining. Its plant is located at Alberhill, Riverside County, and its principal office is located at Los Angeles, both in the State of California. The respondent employs approximately 150 persons at the plant. All of its raw materials are procured from sources in California. The respondent's gross annual sales amount to about $500,000. During the first 11 months of 1937, its total net sales of finished products amounted to $463,671. Of this amount the respondent sold and delivered to points outside California products valued at $32,149. The respondent further sold and delivered products valued at $40,771 to purchasers for intended shipment outside California, such inten- tion being set forth on the purchase orders. About $13,425 worth of finished products also were sold and delivered to railroads for in- tended shipment outside California during the same period. Thus, during the period under consideration, approximately 18.6 per cent of the responent's finished products, amounting to about $86,345 in value, were sold for shipment or shipped by the respondent to desti- nations outside California. II. THE ORGANIZATION INVOLVED Alberhill Clay Products Workers' Union No. 373 is a labor organ- ization chartered by International Union of Mine, Mill and Smelter Workers, affiliated with the Committee for Industrial Organization. It admits to membership all employees of the respondent except fore- men, supervisory employees, and clerical employees. 7 See footnote 5, supra . The errors are evidently typographical. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The respondent's attitude toward the Union The Union began its organizational activities with a meeting of the respondent's employees on June 1, 1937. About 50 to 70 of the respondent's employees attended, of whom 33 signed application cards for membership. During the ensuing week the Union formed its internal organization and within a short time thereafter, over 60 per cent of the respondent's employees joined the Union. The respondent knew in advance that the meeting of June 1 was to be held. Accord- ing to the testimony of Baer, the foreman, he, Bodine, the plant super- intendent, and Mills and Gantz, also foremen, were present at the meeting for at least 45 minutes, during which time a substantial number of employees signed application cards. Baer admitted that he recognized about 20 of his subordinates at the meeting. Baer testified that "we attended to merely see ... what was going on and what the activity was." On June 2 Gantz discussed the Union during the entire noon hour with Ashworth, one of the employees under Gantz. Gantz stated to Ashworth that the employees should renounce outside affiliations and form their own union. Gantt further told Ashworth that the em- ployees were "fools" to allow themselves to be led by a man such as Green, the union organizer. Later the same day Gantz came to the kiln where Ashworth and McNutt, another employee, were working and remarked, "You fellows are fools to affiliate with the C. I. O. or any outside organization. Your should form a union, yourselves, and stay clear of all outside affiliations." Gantz admitted that he had seen McNutt at the union meeting the evening before. On June 8, following Ashworth's lay-off, Gantz again remarked to Ashworth, "The mistake you fellows made from the start was joining up with any outside organization whatever. You should have just formed an employees' union here in this one plant and stayed clear of all out- side affiliations." Gantz's denial that he made the foregoing state- ments fails to convince us in view of the clear testimony of both Ashworth and McNutt. Several weeks prior to the Union's first efforts to organize the respondent's employees, Bodine approached Hazleton, an employee, and, advising him that efforts would probably be made to unionize the plant, said, "In case the union comes in here, there won't be [any] chance for a bonus this coming year like there was last year . . . Spread [the word] around over the yard among the boys there." Hazleton did not carry out Bodine's instructions. Bodine admitted having told Hazleton that he anticipated union activity among the employees, but denied that he made any statement LOS ANGELES BRICK & CLAY PRODUCTS CO. ET AL . 755 concerning payment of the bonus. The record, however, shows that Bodine played a prominent part in the respondent's acts of oppo- sition toward the Union. We do not believe his testimony with respect to the Hazleton conversation. It is apparent from the above-described conduct of its supervisory employees that the respondent was opposed to the union organization of its employees. Its hostility toward the Union affords a significant background for our consideration of its activities which constituted the unfair labor practices alleged in the complaint, as amended. B. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that the appropriate unit consists of all employees of the respondent in the pits and in the production depart- ment of the plant, excluding foremen, supervisors, and office em- ployees. Such employees are eligible for membership in the Union and may properly constitute an industrial bargaining unit. The respondent does not question the propriety of this unit. We find that all the employees of the respondent at its Alberhill plant, including the pits, excluding foremen, supervisors, and office employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit insures to employees of the respondent the full benefit of their right to self-organization and collective bar- gaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of the majority in the appropriate unit The respondent employed approximately 164 persons 8 in the ap- propriate unit on June 10, 1937. Of these, 108 9 employees had signed application cards for membership in the Union on or before June 10. From June 11 to 14, inclusive, 10 additional employees in the appropriate unit signed such application cards. The authen- ticity of these 118 application cards, which were introduced in evi- dence, was not disputed by the respondent. We. find that on June 10, 1937, and at all times thereafter, the Union was the duly designated representative of a majority of the employees in a unit appropriate for collective bargaining, and pur- suant to Section 9 (a) of the Act, was the exclusive representative 8 This figure includes the 43 employees who were temporarily laid off previous to June 10. See Matter of Kuehne Manufacturing Company and Local No. 1791, United Brotherhood of Carpenters and Joiners of America, 7 N. L. R. B. 304, 323. ° Ray Mains is shown on Respondent Exhibit No. 1 as having joined on June 18. An examination of Mains' application card, however, convinces us that the correct date is June 10. 756 DECISIONS OF NATIONAL LABOR RELAT[ON S BOARD of all the employees in such unit for purposes of collective bargain- ing in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain As stated above, the Union began organizational activities with a meeting of the respondent's employees on June 1. A substantial number of employees joined the Union in the presence of Bodine, Baer, and Gantz. Several days before, a general wage increase had been announced by the respondent, effective June 1. On June 2, in the morning, the respondent announced a reduction in force, stating that it was for economy reasons. By June 9, 43 employees were laid off, including a substantial number of union members. On that day, perturbed by the lay-offs, the Union held a meeting to formulate bargaining requests. On June 10, at about 7: 30 a. m., a committee of the Union com- posed of the respondent's employees, presented to Bodine a memo- randum setting forth demands: (a) that the respondent recognize the Union as the bargaining agent of its employees; (b) that all employees laid off since June 1 be reinstated by the following morn- ing and that all employees be given an equal number of hours of work; and (c) that all time worked in excess of 8 hours per day or 40 hours per week be paid for at the rate of one and one-half times the regular rate of pay. The memorandum granted the re- spondent until midnight of the same day to signify acceptance or refusal of the demands, and concluded with the statement that "in the existence of no notification by the specified hour the Union shall act upon the supposition that their requests have been denied and will not be complied with." A copy of the demands was also deliv- ered to the respondent's office in Los Angeles. Bodine turned over the memorandum to Larson, the respondent's general superintendent, upon the latter's arrival at the plant at about 10 a. m. At about 3:45 p. m. Bodine approached Lucas, a member of the Union's committee, and told him that the respondent would take no action upon the Union's requests; that the Union had nothing to back it up in its demands; and that the respondent would ignore the request. We are unable to accept Bodine's denial of this version of the conversation. We have found above that Bodine's credibility is in doubt. We see no reason to accord his testimony greater weight here. No further word was received from the respondent by the Union. Early the following morning all but six of the employees :truck in accordance with a previous vote taken by the Union. A picket line was formed and maintained throughout the strike. Shortly after the formation of the picket line Baer, one of the fore- LOS ANGELES BRICK & CLAY PRODUCTS CO. ET AL. 757 men, remarked to Arthur Hannum, a striker, that if the employees had formed a "company union in there or the A. F. of L. . . . Mr. Larson would have come around and talked business," but that Larson did not like the policies of the C. I. O. Hannum's testimony with respect to this statement was not controverted by Baer, who was called as a witness for the respondent. During the strike Larson met with officials of the Union in the office of the Regional Director, at the latter's request, to discuss the June 10 requests and a proposed settlement of the strike. McNutt, the secretary-treasurer of the Union, testified that the Regional Director asked Larson whether or not the respondent would bargain with the Union; that Larson replied he "would never have a union in [his] plant if [he] had to close it down for good." Larson ad- mitted that he made no response to the request to bargain with the Union. Larson, however, denied the testimony of McNutt and further testified as follows : That on June 15 he (Larson) saw Nylander, the Regional Director, and Howard, the Chief Field Examiner, in Nylander's office; that both Nylander and Howard assured Larson that the strike was illegal and that they would endeavor to have the strike called off; that he (Larson) had two subsequent conferences with Nylander and Howard; that he had a fourth and last conference with Nylander on June 23 or 24, which was the meeting referred to by McNutt. Larson later testified, however, that one of the con- ferences with Nylander was held after the termination of the strike, on or about June 28. Other evidence clearly establishes that the conference referred to by McNutt took place on June 15 and not on June 23 or 24, as Larson testified. The contradictions in Larson's testimony and his admis- sion that he made no response to the request to bargain with the Union cast doubt upon his credibility as a witness. We find that on June 15, 1937, Larson made the statement to which McNutt testified. On June 16 the respondent commenced to rehire employees. Fifty- nine striking employees were rehired while the strike was still in progress. On the same day McNutt, as secretary-treasurer of the Union, in a letter to the respondent, made the following request : As the representatives of your employees ... selected by your employees to bargain collectively for them we herewith request that you advise us within three days of a time and place for a meeting to negotiate an agreement. The respondent did not reply to the Union's request and the strike continued until June 25, when the union members met on the picket line and voted to terminate the strike. The same day McNutt, in his official capacity, again wrote to the respondent, and requested the 164275-39-vol. at-49 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reemployment in order of seniority of the Union's members named on an attached list. The respondent, however, ignored this request and on June 28 it began to hire new employees. The respondent's principal defense is that the June 10 demands of the Union set an unreasonable limit of time in which the respondent might accept or reject them; that neither Bodine nor Larson had authority to act on the demands; and that before the respondent had an opportunity to act the strike was called. Without passing upon the validity of this defense with reference to the respondent's action prior to the strike, it is clear that it does not justify the refusal of the respondent to bargain subsequent to June 11. The existence of the strike did not relieve the respondent of its statutory duty to bargain collectively with the representatives of its employees 10 The respondent's further argument that Larson did not know how to communicate with the Union after the employees were on strike does not bear inspection. Larson met with the Union's officials on June 15 and was then asked to bargain with the Union. Furthermore, the record is devoid of evidence that Larson ever attempted to bring the matter before the respondent's board of directors, with whom the authority to act on the Union's request is alleged to have rested. The record yields a strong inference that the respondent gave the Union's proposal no serious consideration and we conclude that Bodine ac- curately stated the respondent's position, that it "would ignore the request." The respondent further contends that the Union offered no proof that it had been designated by a majority of the respondent's em- ployees as their representative for collective bargaining. That the Union represented a majority of the employees during the strike was obvious, nor did the respondent question the Union's status as such representative. The picket line furnished tangible evidence to sup- port the Union's position. Further proof was never requested by the respondent. We need not determine whether the June 10 memorandum tech- nically constituted a request to the respondent to bargain collectively with the. Union. Such request clearly was made at the June 15 con- ference, which was called to discuss the Union's demands and to arrive at terms for the settlement of the strike. Larson's expression of un- alterable opposition toward the Union made such discussion futile and collective bargaining impossible. By ignoring the Union's fur- ther request on June 16 for an appointment to negotiate an agreement, the respondent continued its policy of refusing to bargain collectively 10 Cf. Matter of Jeffery-DeWitt Insulator Company and Local 455, United Brick and Clay Workers of America, 1 N. L. R. B. 618, 625, order enforced in Jeffery-DeWitt Insulator Company v. National Labor Relations Board, 91 F. (2d) 134 (C. C. A. 4th), certiorari denied, 302 U. S. 731; Matter of Kuehne Manufacturing Company and Local No. 1791, United Brotherhood of Carpenters and Joiners o/ America, 7 N. L. It. B. 304. LOS ANGELES BRICK & CLAY PRODUCTS CO. ET AL. 759 with the Union and continued to obstruct the possible settlement of the strike. We find that the respondent, on June 15, 1937, and at all times there- after, refused to bargain collectively with the Union as the represen- tative of its employees in the appropriate unit in respect to rates of pay, wages, hours of employment, and other conditions of employ- ment; and that by such acts the respondent has interfered with, re- strained, and coerced its employees in the exercise of the rights guar- anteed them by Section 7 of the Act. We further find that the re- spondent, by its refusal to bargain collectively with the Union, caused a prolongation of the strike. C. The lay-offs, the refusals to reinstate, and the delayed reinstatements The complaint, as amended, alleges that the respondent discrimina- torily discharged certain named employees prior to the strike and thereafter refused reinstatement to them and to others of the strikers because of their union membership and activity. The record does not establish that the discharges or lay-offs were discriminations as to hire or tenure of employment contrary to Section 8 (3) of the Act. There remains the question of whether or not the respondent com- mitted unfair labor practices by refusing to reinstate certain of the strikers. Following the termination of the strike on June 25 an application was made by the Union to the respondent to reinstate in order of seniority 118 named striking employees. Some 36 of the strikers, in- cluding 4 employees not named in the application, have not been rein- stated. William Ashworth, Henry Boontjer, Frank German, Lawrence German, James Grier, Arthur Hannum, Edward Hannum, Lester Hazleton, Chester Lucas, Lawrence McNutt, Arnold Moss, Sylvester Osborne, Thomas Roddy, Glenn Stewart, and Gerald Wenker are among the employees who have not been reinstated. Their names were included in the June 25 application for reinstate- ment. All but Wenker and Hazleton also applied in person to Bodine for reinstatement after the strike. The respondent contends generally that it decreased its volume of production after the strike and consequently reduced its personnel. It appears from the record, however, that on June 25 the respondent had 66 employees on its pay roll; on June 30, there were 101. On August 31 there were 153 employees on the pay roll. On the other hand, on June 1 there were 148 employees working. On June 2, the day the lay-offs commenced, 155 employees were working. Further. it is admitted that the respondent had resumed substantially normal operations by about the first of September. From June 25, the (late when the strikers applied for reinstatement, through August 31, the respondent hired 30 new employees. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear that the respondent could have reinstated by September 1 all but 2 of the 32 strikers who had applied for reinstatement. Nev- ertheless, the respondent failed to take back any of the 32 strikers who applied for reinstatement, including the 15 named above. The validity of the respondent's contention extends, therefore, only so far as the respondent may show by credible evidence that all or any of the 15 employees named in the complaint, as amended, were not rein- stated for cause to those positions for which new employees were hired. We will discuss below the respondent's evidence in this respect. Moreover, the record, in two particulars, supports the conclusion that the reason for the respondent's refusal to take back the 15 strikers named above was their activity in and support of the Union. In the first place many of the more active members of the Union were included among those not reinstated. Thus Edward Hannum was president of the Union; McNutt was the secretary-treasurer. Mc- Nutt and Ashworth, as we have set forth above in discussing the respondent's anti-union attitude, were berated by their foremen as "damn fools to join the C. I. 0." Lucas and Stewart were on the com- mittee which presented the Union's first demands to Bodine on June 10. Lucas accompanied McNutt and Edward Hannum to the June 15 conference with Larson to settle the strike. In the second place the circumstances surrounding the denial of reinstatement to the strikers here involved reveal clearly the re- spondent's attitude. Stewart was refused reinstatement by Bodine on June 25 because Stewart "got off on the wrong foot." Osborne was told by Bodine to look elsewhere for a job, Bodine adding, "You boys will be careful what you sign after this." Bodine denied having made such statements. The testimony of Osborne and Stewart con- cerning Bodine's refusals to reinstate them substantially accords with the testimony of other employees who testified. We are convinced that here, too, Bodine is not to be credited. Bodine told others who. applied on June 25 and during the remaining 4 working days in June that the respondent would hire no more employees since all that were needed had been reemployed; that "it would be favorable for you boys to forget" the respondent. Bodine's remark to Osborne clearly related the refusal to reinstate Osborne with his signing an application card for membership in the Union. Bodine's statement to Stewart, and his advice to striking employees "to forget" the re- spondent, can have but one meaning : that as to them Bodine regarded their union activity as a bar to their employment by the respondent. In the light of these circumstances we turn to a consideration of the specific reasons alleged by the respondent for its failure to re- instate each of the strikers named above. LOS ANGELES BRICK & CLAY PRODUCTS CO. ET AL. 761 McNutt, Ashworth., and Boontjer were employed as kiln drawers under Gantz. Ashworth was a crew leader. He received 50 cents per hour; McNutt, 471/2 cents per hour; and Boontjer, 421/2 cents per hour. The work requires no special training or skill. The respond- ent contends that Ashworth and McNutt were too light to perform the duties of their jobs. Both had received raises during the course of their employment and no question as to the competency of any of the three men appears to have been raised during the period of their employment prior to the strike. The respondent further contends that Ashworth was not rehired after the strike because his work was being handled by other em- ployees; that Boontjer was not qualified for the general labor jobs available; and that McNutt was qualified for a better job than any that were available. The respondent offers no explanation, however, as to why, with the plant operating at substantially normal capacity by September 1, their former or substantially equivalent positions could not have been made available to these employees. The reasons assigned for the failure to reinstate Ashworth, Mc- Nutt, and Boontjer lack plausibility. Frank German and Grier were employed as truck drivers, for which each was paid 501/2 cents per hour. Both had previously worked at various jobs in the plant as general laborers. Both were active in the picket line. The respondent contends that German was not reinstated because only general labor jobs were available. As in the case of McNutt, Ashworth, and Boontjer, however, the respondent gives no reason why, with the plant operating at substantially normal capacity, it could not have restored German to his former or a similar position. It is admitted that Grier was replaced by a new employee. The respondent contends, however, that Grier was discharged prior to the strike for inefficiency. Grier was given letters of recommendation during the strike by both Bodine and Mills, the foreman, attesting to Grier's competency. We find from other evidence that Grier was laid off due to the reduction in force prior to the strike. The respond- ent admits that employees so laid off prior to the strike retained their status as employees.' We are unable to credit the respondent's contentions as to its alleged reasons for not reinstating Grier and German. Moss, Roddy, and Osborne were employed as general laborers. Roddy and Osborne each received 471/2 cents per hour; Moss' earnings do not appear. Moss and Roddy were on the picket line. Bodine testified that a new man was hired in place of Moss "because of the nature of the work." No further explanation was given. Bodine also "Matter of Kuehne Manufacturing Company, footnote 8, supra. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that Osborne's former position is still vacant and that he was not reinstated "because of the nature of the work we had to offer him." This is inconsistent with Bodine's statement that German was not reinstated because "we didn't have any job other than laborer." Bodine further testified that Roddy was not reinstated "because of inefficiency, and I would say stupid, not quick to receive instructions, and so forth." Bodine, however, admitted on cross-examination : Q. Well, now, let us get this clear about Mr. Roddy. Was his work satisfactory? A. As far as I know, his work was satisfactory. We find that the reasons assigned by Bodine, for the failure to re- instate Moss, Osborne, and Roddy are equally unsatisfactory. Lawrence German and Lucas received 521/2 cents and 621/2 cents per hour, respectively, as mechanics on the general maintenance crew. German and Lucas are the only members of the crew who have not been reinstated. The evidence indicates that one new employee was hired and one employee was transferred to work on the crew after the strike. This is not specifically denied by the respondent, although Bodine testified that the position formerly occupied by Lucas has not been filled. Although the record does not disclose whether or not the two new employees added to the crew were hired as mechanics, it is not shown that German and Lucas were unqualified to fill these positions. Ste-wart was leverman on the steam press, for which he was paid 521/2 cents per hour. No explanation is offered by the respondent as to why Stewart was not reinstated. The respondent contends that Wenker's former position is not steady. Wenker was employed as regular transfer man at 471/2 cents per hour, for 8 months prior to the strike. The work of a transfer man is a regular part of production. The respondent's contention as to Wenker is contrary to the evidence. The respondent alleges that Edward Hannwm's former position on the dry press is still vacant due to decreased volume of production. Hannum also had worked in various capacities during his 2 years of employment. There is considerable interchange of jobs and classi- fications. No reason is advanced why Hannum was not offered re- instatement to one of the positions filled by new employees. Hannum received 471/2 cents per hour. Hazleton was employed for 71/2 years. At the time of the strike he loaded and inspected sewer pipe, for which he was paid 521/2 cents per hour. It was Hazleton whom Bodine sought to use as an agent to forestall the formation of the Union. Hazleton's failure to do Bodine's bidding showed the respondent where Hazleton's sympathies lay with reference to self-organization and collective bargaining. LOS ANGELES BRICK & CLAY PRODUCTS CO. ET AL. 763 Bodine testified that he did not reinstate Hazleton because he be- lieved that for Hazleton to work at a lesser rate of pay than he had received "would probably be humiliating" for Hazleton. Bodine did not explain why Hazleton's rate of pay would have been decreased. It does not appear that Hazleton's former position was abolished, nor is it shown that his work was assigned to other employees after the strike. The respondent's further contention that Hazleton was inefficient does not appear to be urged seriously, nor is it sup- ported by the evidence. We think that no credible reason has been advanced by the re- spondent for not taking back Hazleton. Arthur Hannum remained on duty as burner on the tunnel kiln after the strike commenced, until he was relieved by Baer. Baer admitted that the kiln was in satisfactory condition; that he was qualified to tend the kiln; and that he thanked Hannum for not leaving the kiln unattended, so as to prevent damage. Hannum's conduct in leaving his post to join other employees on strike offers no cause for refusing him reinstatement. Hannum applied to Bodine in person on June 25 for reinstatement. Bodine replied that the operation of the tunnel kiln was discontinued, and indicated that the discontinuance was permanent. Operation of the kiln was recommenced in early August and was being continued at the date of the hearing. Bodine testified that Hannum was not reinstated because Hannum had left the vicinity prior to the resump- tion of the kiln's operation. He admitted, however, that he did not intend to reinstate Hannum to his former position as burner because Hann-Lim had been guilty of sleeping while on duty. It appears that a burner's duties require close attention to prevent damage to the' kiln. The respondent does not assert that the incident was a ground for refusing Hannum's reinstatement to other work which new em- ployees were hired to perform between, June 25 and July 14, when he left the vicinity. Hannum had previously been employed by the respondent as a laborer. Furthermore, Hannum was neither discharged nor disciplined for his offense. He was asleep for 10 minutes and no damage was caused. According to the respondent's evidence Hannum continued working as a burner until the strike, some 12 days later. Larson testified that he discussed with Baer the replacement of Hannum, and that the strike occurred before a new burner had been selected. Larson later testified, however, that Hannum was not replaced because the kiln was to be closed in 15 or 18 days and it was not desired to "break in" a burner for that length of time. Baer, although called as a wit- ness, did not testify regarding the discussions with Larson. We find elsewhere that Larson is not a credible witness. Because of the incon- sistency in his testimony we do not accord it weight here. We con- 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD elude that the respondent regarded Hannum's dereliction as minor; that the gravity now asserted for the incident is an afterthought. The respondent's alleged reason for not having reinstated Hannum prior to the hiring of new employees must be rejected. On June 11, the last day he worked, Hannum received 471/2 cents per hour. Since July 14 he has been employed elsewhere at higher wages. The record does not establish, however, that he has received substantially equivalent employment. The respondent contends that the fact that other members of the Union have been reinstated shows the absence of discrimination. Such result was inevitable unless the respondent replaced all mem- bers of the Union with new employees; in such case the fact of dis- crimination would have required no further proof. The respondent's contention provides no answer to the replacement of some of the strikers by new employees. The respondent admits that it knew that strikers were available for reemployment at the time it hired new employees. In attempted explanation for its refusal to take back strikers, the respondent con- tends that it could not reasonably be expected to assume the burden of soliciting employees to return to work. The respondent's position rests either upon the false premise that the strikers made no attempt to return to work after the termination of the strike or upon the equally fallacious proposition that the strikers, by virtue of the strike, lost their status as employees. The contrary of the latter proposition is too well settled to require discussion, and, moreover, is admitted in the record. The strike, if not provoked by the respondent's unfair labor prac- tices, was certainly prolonged by its unfair labor practice in refusing to bargain collectively with the Union. The strikers thus remained employees of the respondent within the meaning of the Act and were entitled to reinstatement to their former or substantially equivalent positions upon application therefor.12 Such application for rein- statement was made by the Union, as well as by most of the employees individually, at the termination of the strike. Inasmuch as the plant was operating at approximately normal capacity by September 1, the respondent could have reinstated all but two of the strikers, who had signified a desire to return, to their former or substantially equivalent positions. The respondent, however, while refusing to reinstate the strikers here involved, employed 30 new employees within the first few weeks after the end of the strike. The respond- ent has failed to show, in the case of any of the strikers named above, 12 See Matter of Black Diamond Steamship Corporation and Marine Engineers' Beneficial Association, Local No. 33, 3 N. L. R B . 84, order enforced in Black Diamond Steamship Corporation v. National Labor Relations Board, 94 F. (2d) 875 (C. C. A. 2d), certiorari denied, 304 U. S. 579. LOS ANGELES BRICK & CLAY PRODUCTS CO. ET AL. 765 any plausible reason for its failure to reinstate him or for its giving preference to the new employees. On the other hand, the evidence shows affirmatively that the strikers in question were denied rein- statement because of their union membership and activity. Our conclusion in this respect is confirmed by the respondent's treatment of Cordero and Dabich, considered below. We find that the respondent has discriminated in regard to the hire and tenure of employment of William Ashworth, Henry Boontjer, Frank German, Lawrence German, James Grier, Arthur Hannum, Edward Hannum, Lester Hazleton, Chester Lucas, Law- rence McNutt, Arnold Moss, Sylvester Osborne, Thomas Roddy, Glenn Stewart, and Gerald Wenker, thereby discouraging member- ship in the Union; that it thereby has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act 13 In addition to the allegations with respect to the foregoing em- ployees, the complaint alleged that the respondent had discriminated in regard to the .hire and tenure of employment of Gregorio Cordero and Sam Dabich in refusing their reinstatement after their applica- tion on June 25. Cordero and Dabich were reinstated on July 7. The names of both employees appeared on the list submitted by the Union to the respondent on June 25, above mentioned. Cordero was among the employees laid off temporarily prior to the strike.'' Dabich went on strike with other members of the Union and was active in the picket line. Cordero applied personally to Bodine for reinstatement on or about July 1, without immediate success. Cordero testified that Bodine told him to return in a few days; that he returned as instructed, and was refused reinstatement; that Bodine said that he had reports that Cordero "was making a lot of trouble in the case of the Union" and that he would not reinstate Cordero for that reason; that he then brought Bodine a letter to prove that he was not active in the strike, but had been temporarily employed elsewhere; that thereupon Bodine reinstated him. Bodine denied making the remarks which Cordero testified occa- sioned the production of the letter, or that the letter was in any way connected with the later decision to reinstate Cordero. Bodine further testified that during the strike he learned that persons resid- ing in the "company camp" had complained to the deputy sheriff of being disturbed by Cordero's loud talking at night; that Cordero's reinstatement was delayed because of the reported complaints; that is See Matter of Western Felt Works and Textile Workers Organ4xung Committee, Western Felt Local, 10 N L R. B 407 14 We already have pointed out that such employees retained their status as employees of the respondent during and subsequent to the strike. See footnoto, 11, supra. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cordero denied making any disturbance; and that several days later Bodine decided that Cordero "was worthy of re-hiring." Bodine admitted that he made no investigation of the alleged complaints, nor was there evidence introduced to show that complaints actually were made. We have heretofore found that Bodine's testimony in several instances is not worthy of belief. We do not attach greater credibility to it here. We find that Cordero's testimony accurately portrays the circumstances leading up to his reinstatement. We are equally satisfied that the asserted ground for the delay in reinstating Cordero did not exist. The nature of the offense with which he stood charged had no bearing on Cordero's qualifications as an employee. Such qualifications were, in effect, admitted by Bodine. There is, moreover, doubtful fortuity in Bodine's sudden abandon- ment of his refusal to reinstate Cordero, following the production of proof that Cordero did not actively participate in the strike. We think that Cordero correctly interpreted Bodine's remarks as calling for such proof. Dabich, likewise, was first refused reinstatement by Bodine. The respondent has assigned no reason for such refusal. Dabich had been employed for 111/2 years. Dabich subsequently saw Larson and said, "Maybe we made a mistake. How's chances to go back to work?" Larson replied that Dabich could return to work the next day. Although Larson testified several times at the hearing, he failed to deny Dabich's testimony. By making "a mistake" Dabich clearly had reference to the employees' efforts toward self-organiza- tion, and we have no doubt that Larson so understood the remark. Bodine has charge of all hiring. Larson's unexplained reversal of Bodine's refusal to, reinstate Dabich, following as it did Dabich's virtual renunciation of the Union, can be interpreted in the light of the record only as evidence of a policy adopted by the respondent not to rehire employees who would continue actively to support the Union. Our reasoning and conclusions set forth above in connection with the respondent's refusals to reinstate the 15 strikers first named are equally applicable to the refusals to reinstate Cordero and Dabich. We find that both Cordero and Dabich were initially denied rein- statement, and that their reinstatement was delayed, because they joined and assisted the Union. We further find that Cordero and Dabich were reinstated on July 7 upon assurances to the respondent that Cordero had not been active in the strike and that Dabich was willing to capitulate to the respondent's opposition to the Union. While the evidence does not show the specific jobs which were avail- able for Cordero and Dabich when their reinstatement was first re- fused, we conclude, as in the cases of the 15 strikers named above, in LOS ANGELES BRICK & CLAY PRODUCTS CO. ET AL. 767 the absence of a showing to the contrary, that they were qualified for positions which new employees were hired to fill between June 25, the date of the written application, and July 7, the date that Cordero and Dabich were reinstated. Our conclusion in this regard is sup- ported by the fact that Cordero and Dabich were subsequently rein- stated, to jobs different from their former positions, for no other reason than that the respondent became convinced that neither em- ployee would menace its objective to defeat the Union. The record does not support the allegation of the complaint that Dabich was discriminated against in regard to his terms and con- ditions of employment. We find that the respondent has discriminated in regard to the hire and tenure of employment of Gregorio Cordero and Sam Dabich, thereby discouraging membership in the Union ; that it thereby has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We find that the respondent has not discriminated against Sam Dabich in respect to terms and conditions of his employment. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III B and C above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY The respondent will be required to cease and desist from its unfair labor practices specified above, and to take such action, hereinafter set forth, essential to effectuate the purposes and policy of the Act. Thirty-six of the employees who were on strike have not been reinstated. We have found that 15 of these, named in Appendix "A," attached hereto and made a part hereof, were discriminated against in respect to their hire and tenure of employment contrary to Section 8 (3) of the Act. For this reason and, independently thereof, for the reason that the strike was prolonged by the respond- ent's unfair labor practices in refusing to bargain collectively with the Union, we shall, in accordance with our usual custom, order the respondent to offer them immediate reinstatement to their former or substantially equivalent positions."-5 In addition, for the latter rea- 15 Matter of Jeffery-Dewitt Insulator Company, footnote 10, supra. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son, the respondent will be required, upon application, to offer rein- statement to the remaining 21 striking employees who have not been reinstated. The offers of reinstatement shall be without prejudice to seniority and other rights and privileges. The reinstatement of the 36 employees shall be effected in the fol- lowing manner : All new employees hired after June 15 shall, if necessary to provide employment for those to be offered reinstate- ment, be dismissed. If, thereupon, by reason of a reduction in force there is not sufficient employment immediately available for those to be offered reinstatement, all available positions shall be distributed among the remaining employees in accordance with the respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's business. Those employees remain- ing after such distribution, for whom no employment is immediately available, shall be placed upon a preferential list prepared in ac- cordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions, as such em- ployment becomes available and before other persons are hired for such work. The respondent will, in addition, be required to make whole each of the 15 employees named in Appendix "A" for any loss of pay each may have suffered by reason of the respondent's discrimination against him, less his net earnings 10 during the period for which said sum is computed. Since we are unable to find from the record the specific dates on which each of the 15 employees named in Appendix "A," together with Cordero and Dabich, would have been reinstated but for the discrimination, we will order that back pay be computed from September 1, 1937, the date on which substantially normal op- erations were resumed, until the date of the offer of reinstatement to each. Inasmuch as both Cordero and Dabich were reinstated prior to September 1, neither will be entitled to receive back pay. 'e 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 the unlawful refusal to reinstate him and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Join- ers of America, Lumber and Sawimll Workers Union, Local 2590, 8 N. L R. B. 440 Monies, received by an employee for work performed upon Federal, State, county, munici- pal, or other relief projects during the period from September 1, 1937, to the date of the offer of reinstatement, are earnings. We will order the respondent to deduct such amounts from the sums otherwise due the employees and to pay such deductions over to the appro- priate fiscal agency of the Federal, State, county, municipal, or other government or gov- ernments which supplied the funds for the work-relief project See Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219. See also, Matter of Western Felt Works, footnote 13, supra. LOS ANGELES BRICK & CLAY PRODUCTS CO. ET AL. 769 Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Alberhill Clay Products Workers' Union No. 373 is a labor or- ganization, within the meaning of Section 2 (5) of the Act. 2. All employees of the respondent at its Alberhill plant, includ- ing the pits, excluding foremen, supervisors, and office employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Alberhill Clay Products Workers' Union No. 373 was on June 10, 1937, and at all times thereafter has been, the exclusive repre- seritative of all such employees for the purposes of collective bargain- ing, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with the Union on June 15, 1937, and at all times thereafter, as the exclusive representative of its employees in an appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard to the hire and tenure of employ- ment of William Ashworth, Henry Boontjer, Frank German, Lawrence German, James Grier, Arthur Hannum, Edward Hannum, Lester Hazleton, Chester Lucas, Lawrence McNutt, Arnold Moss, Sylvester Osborne, Thomas Roddy, Glenn Stewart, Gerald Wenker, Gregorio Cordero, and Sam Dabich, and thereby discouraging mem- bership in the Union, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. ' 6. 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 prac- tices, within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent has not discriminated, and is not discriminat- ing in regard to terms or conditions of employment of Sam Dabich, within the meaning of Section 8 (3) of the Act. ORDER 0 Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 respondent, Los Angeles Brick & Clay Products Co., and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interfering with, 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 repre- sentatives of their own choosing, and to engage in concerted activ- ities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act; (b) Refusing to bargain collectively with Alberhill Clay Products Workers' Union No. 373 as the exclusive representative of its em- ployees at the Alberhill plant, including the pits, excluding fore- men, supervisors, and office employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (c) Discouraging membership in the Union or any other labor organization of its employees, by discriminating in regard to hire and tenure of employment because of membership in or activity on behalf of the Union or any other labor organization. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to those employees listed in Appendix "A," and each of them, immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, in the manner set forth in the section entitled "Remedy" above, placing those employees for whom em- ployment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (b) Make whole the 15 employees named in Appendix "A" for any loss of pay each may have suffered by reason of the respondent's discrimination in regard to hire and tenure of employment, by pay- ment to each of them, respectively, of a sum of money equal to the amount each normally would have earned as wages from September 1, 1937, to the date of the offer of reinstatement, less his net earnings during said period ; deducting, however, from the amount otherwise due each said employee, monies received by him during said period ffr work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amounts so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects ; (c) Upon application, offer to those employees, who were on strike on June 15, 1937, and thereafter, and who are not named in Appendix "A," and each of them, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to LOS ANGELES BRICK & CLAY PRODUCTS CO. ET AL . 771 their seniority and other rights and privileges, in the manner set forth in the section entitled "Remedy" above, placing those employees for whom employment is not immediately available upon a preferen- tial list in the manner set forth in said section; and thereafter, in said manner, offer them employment as it becomes available; (d) Make whole the employees ordered in paragraph (c) above to be offered reinstatement for any loss of pay they will have suffered by reason of the respondent's refusal to reinstate them, upon applica- tion, following the issuance of this Order, by payment to each of them, respectively, of a sum of money equal to that which each normally would have earned as wages during the period from 5 days after the date of such application for reinstatement to the date of the offer of employment or placement upon the preferential list re- quired by paragraph (c) above, less his net earnings during said period ; deducting, however, from the amount otherwise due each said employee, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work- relief projects, and pay over the amounts so deducted to the ap- propriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (e) Post immediately, and keep posted for a period of at least sixty (60) consecutive days from the date of posting, notices in conspicuous places in and about the plant, including the yard and the pits, stating in both English and Spanish that the respondent will cease and desist in the manner set forth in 1 (a), (b), and (c), and that it will take the affirmative action set forth in 2 (a), (b), (c), (d), and (e), of this Order; (f) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent discriminated in regard to the terms and condi- tions of employment of Sam Dabich, be, and the same hereby is, dismissed. APPENDIX A William Ashworth Henry Boontjer Frank German Lawrence German James Grier Arthur Hannum Edward Hannum Lester Hazleton Chester Lucas Lawrence McNutt Arnold Moss Sylvester Osborne Thomas Roddy Glenn Stewart Gerald Weaker