Goshen Rubber and Manufacturing Co.

In the Matter of GOSHEN RUBBER AND MANUFACTURING COMPANY and UNITED RUBBER WORKERS OF AMERICA, LOCAL #124 Case No. C-604-Decided March, 08, 1,939 Molded Rubber Goods Manufacturing Industry-Interference, Restraint, and Coercion : permitting and assisting in the circulation of anti -union petition on company time and property ; posting on bulletin board literature misrepresenting terms and purposes of the Act to employees ; participating through supervisory employee in the introduction of a labor organization into the plant ; responsibility of respondent for the acts of its supervisory employees ; engendering fear or loss of employment for union membership and activity-Discrimination : discharges : for union membership and activity and for concerted activity ; charges of, not sustained as to one employee-Reinstatement Ordered: discharged employees- Back Pay: awarded. Mr. Jack G. Evans, for the Board. Mr. Henry E. Vernon and Mr. George L. Pepple, of Goshen, Ind., for the respondent. Mr. Raymond Hoffman, of Goshen, Ind., for the United. Mr. Guy Farmer, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Rubber Workers of America, Local #124, herein called the United, the Na- tional Labor Relations Board, herein called the Board, by Leonard C. Bajork, Regional Director for the Thirteenth Region (Chicago, Illi- nois), issued its complaint, dated February 16, 1938, against Goshen Rubber and Manufacturing Company, Goshen, Indiana, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. In respect to the unfair labor practices, the complaint alleged, in substance, (1) that the respondent had interfered with, restrained, and coerced employees in the exercise of the rights guaranteed by Section 7 of the Act, by making derogatory statements to employees concern- 11 N. L. R. B., No. 121. 1346 GOSHEN RUBBER AND MANTJE'ACTURING COMPANY ET AL. 1347 ing the United, by advising, urging, and warning its employees to refrain from becoming or remaining members of the United, and by other acts; and (2) that the respondent had discouraged membership in the United and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act, by discharging Merle Armstrong, Lyle Armstrong, and Raymond Hoffman, and by demoting Harvey Hively to a position which forced him to resign, because they and each of them joined and assisted the United and engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection. Copies of the com- plaint, accompanied by notice of hearing, were duly served upon the respondent and the United. The respondent duly filed its answer ad- mitting the allegations of the complaint concerning the nature and interstate character of its business, but denying the alleged unfair labor practices. Pursuant to notice, a hearing was held on February 24, 25, and 26, 1938, at Goshen, Indiana, before David F. Smith, the Trial Examiner duly designated by the Board. The Board and the re- spondent were represented by counsel, the United by its secretary, and all 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. During the course of the hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed such rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On April 30, 1938, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all parties, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist therefrom and that it take certain specific affirmative action, including an offer to reinstate with back pay the three employees alleged to have been discriminatorily discharged and the fourth who was alleged to have been discriminatorily demoted. On May 18, 1938, the respondent filed its exceptions to the Intermediate Report, and requested oppor- tunity for oral argument before the Board. Pursuant to the request, oral argument was set for September 29, 1938, at Washington, D. C., but none of the parties appeared. The Board has reviewed the ex- ceptions to the Intermediate Report and, in so far as they are incon- sistent with the findings, conclusions, and order set forth below, finds them to be without merit. 1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is an Indiana corporation with its principal office and place of business at Goshen, Indiana, and is engaged in the manufacture and sale of molded rubber goods and similar products. During 1937 the respondent purchased raw materials amounting to $63,588.78, of which $58,180.51 represented purchases outside the State of Indiana. In the same year the respondent sold rubber goods valued at $286,499.29. The value of such products trans- ported to States other than Indiana was $227,803.39. The respondent normally employs about 89 production and main- tenance workers. II. THE ORGANIZATION INVOLVED United Rubber Workers of America, Local #124, is a labor organi- zation, affiliated with the Committee for Industrial Organization, admitting to membership the production and maintenance employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Although there were no organizing activities in the respondent's plant before April 1937, there was considerable unrest among the em- ployees concerning working conditions as early as January. The respondent claims that at about this time it became alarmed by news- paper reports of labor disputes in Detroit and other places, and grew apprehensive of similar difficulties at its own plant. This fear of the respondent crystallized into a particular distaste of the Com- mittee for Industrial Organization. The disquietude of the respond- ent's employees manifested itself in February when Merle Armstrong, an employee, assumed the leading role in circulating a petition for shorter hours and in posting on the bulletin board a paper referring to "sweat shop" conditions in the plant and signed "Union Leader." As will be more fully developed later, Morris Cripe, plant superin- tendent, then revealed the aggressive anti-union attitude of the re- spondent by immediately discharging Armstrong for "trying to get the union in here." The United began to organize the respondent's employees in April 1937 and by May 11 had obtained about 25 members, received its GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL. 1349 charter, elected officers, and was pressing the respondent for a writ- ten promise not to discriminate against union members. At that point the respondent launched a vigorous campaign of opposition to the United. On May 12 a petition against any labor organization "other than that which might be organized solely among the employees of the Goshen Rubber and Manufacturing Company" was circulated in the plant during working hours. Not only was it passed around among the employees with the knowledge and consent of the respondent's foremen, but also five foremen signed the paper and at least one of them actively solicited the signatures of a large number of the respondent's employees. In the latter regard it ap- pears that Lloyd Stump, trimming-room foreman, requested a group of about 20 employees in his own department to sign the petition and stated that he believed that "the office was in favor of the paper." Before the petition could be completely circulated, however, Lyle Armstrong, a United member, obtained possession of it from Johnnie Niccum, a strawboss, for the pretended purpose of procuring the signature of another employee. Instead, Armstrong then delivered it to Earl Lantz, president of the United, who in turn concealed the paper. The respondent's interest in the petition is evidenced by the fact that immediately after Armstrong had delivered it to Lantz, Orlando Hower, a foreman, insisted that Armstrong inform him of the whereabouts of the paper. On the afternoon of May 12, Raymond Hoffman, secretary of the United, approached Morris Cripe and protested the circulation of the petition. Cripe thereupon prepared and personally obtained the sig- natures of the foremen to a written notice instructing them "to in no way assist or aid in the circulation of any petition relative to employee and employer relationships." Shortly thereafter on the same day, however, a second similar petition was circulated among the respond- ent's employees in the same manner as the first. That the foremen were not in the least deterred from their anti-union activities by the above-mentioned notice is evidenced by the fact that no less than seven foremen signed the new petition. Gordon Pease, the respondent's general manager, stated at the hearing that the petitions were prepared and circulated without the knowledge or consent of the management. The above activities of the respondent's foremen in connection therewith and their supervisory status, however, are not denied. And in accordance with the theory consistently expressed in previous decisions,' we hold that the respond- 1 See Matter of Mock-Judson-Voehringer Company of North Carolina, Incorporated and American Federation of Hosiery Workers, North Carolina District , 8 N. L. R. B 133 ; and see also Matter of Ward Baking Company and Committee for Indust.lal Organiza- tion, 8 N. L. R B. 558. 164275-39-vol xi-86 1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent is answerable for the acts of its foremen in this regard. We fur- ther hold that the instructions to the foremen contained in the notice concerning the circulation of petitions in nowise tend to nullify the coercive effect of their activities nor to exempt the respondent from liability therefor. In this regard we deem it significant that the instructions were not accorded general publication in the plant and that the foremen were not reprimanded for signing the second peti- tion. On the contrary, Cripe testified that he did not consider such act a violation of his instructions. The respondent's campaign against the United did not cease with the circulation of the anti-union petitions. On May 14, disregarding the United's request for a promise to be posted on the bulletin board not to discriminate against union members, the respondent posted instead on four bulletin boards in the plant a document entitled, "A Message to Employees. Facts about the Wagner Act (National Labor Relations Act)." Although this document expressly purports to "inform employees of their rights under the Wagner Act," no reference to the funda- mental rights of self-organization and collective bargaining guaran- teed by the Act appears therein. On the contrary, the document states in effect that employees are not required to join any labor organization, but may elect to deal with the employer directly or through an inside union, and concludes with the reminder that the employer retains the right to "select his employees or discharge them." The patent contradiction between the purported and actual contents of this no- tice, together with its careful emphasis upon the right of employees to refrain from rather than engage in self-organization and collective bargaining, and upon the rights of the employer rather than those of the employees with respect to discharge, serves to mislead readers of the leaflet concerning the true principles and purposes of the Act. We hold, therefore, that the posting of such paper referring to the negative aspects of the Act at a time when the respondent's employees were attempting to avail themselves of their affirmative rights there- under constitutes an attempt to interfere with the employees in the exercise of their right to self-organization.2 Shortly after the above activities of the respondent opposing the United and favoring an inside union, Goshen Rubber and Manufac- turing Company Employees Association appeared in the plant. A O See Matter of Mansfield Mills, Inc. and Textile Workers Organizing Committee, 3 N. L. R. B 901; and Matter of Mock-Judson-Voehringer Company of North Carolina, Incorporated and American Federation of Hosiery Workers, North Carolina District, 8 N. L. R B. 133; Matter of Pure Oil Company and International Union Local 265, 8 N L It. B 207; Matter of Western Felt Works, a Corporation and Textile Workers Organizing Committee, Western Felt Local, 10 N. L. R. B. 407; and Matter of Nebel Knitting Company, Ino .Ind American Federation of Hosiery Workers, 0 N. L R B. 284. GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL. 1351 number of organizing meetings were held in the plant during May, and on June 19 the respondent posted a written recognition of the Association as the exclusive bargaining representative of the em- ployees. In August, however, pursuant to the recommendation of a representative of the Board, the respondent voluntarily disestab- lished the Association. Sometime in September, perhaps fearful that the dissolution of the Association would redound to the benefit of the United, Leslie Schoo- maker, a foreman who acted with the express permission of Gordon Pease, accompanied by George Kerlin, former president of the Asso- ciation went to the neighboring town of Elkhart, Indiana, and there contacted a representative of the American Federation of Labor and requested him to organize the respondent's employees. About October 1, pursuant to that request, the American Federation of Labor established at the respondent's plant an affiliated labor organi- zation called Federal Labor Union, Local Number 21,254. The re- spondent's active participation, as set forth above, in the introduction of this labor organization into its plant not only casts suspicion upon the respondent's good faith in disestablishing the Association and reflects its enmity toward the United, but also must be deemed an attempt to interfere with the employees in the free choice of representatives. We find that the respondent by the foregoing acts has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. B. The discharges Merle Armstrong was hired by the respondent on March 27, 1935, and was at all times a satisfactory and efficient worker. On February 3, 1937, Armstrong took a leading part in circulating a petition for shorter hours among the respondent's employees, and on February 6 posted on the bulletin board in the plant a paper pur- porting to be a notice of a union meeting to discuss "sweat shop conditions" in the plant and signed "Union Leader." Since, as here- inbefore noted, there were then no organizational activities in the respondent's plant, the meeting referred to in the notice and its ostensible signer were fictitious. Both the petition and notice, how- ever, were prepared by fellow employees of Armstrong and were spon- taneous expressions of discontent among the employees concerning working conditions, particularly with respect to the 12-hour day then in effect at the plant. The petition was signed by a number of employees and was subsequently presented to the respondent. On February 8, the following workday, Armstrong reported for work as usual and, finding no materials supplied for his press, asked 1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Orlando Hower, his day foreman, the reason for this deficiency. The latter offered no explanation but instructed Armstrong to consult Morris Cripe, superintendent. This Armstrong did and was there- upon accused by Cripe of "trying to start trouble around the shop there" and of attempting to compel other employees to sign the afore- mentioned petition. An argument ensued, during which Armstrong insisted that Cripe reveal the true source of his resentment. The latter finally replied, "just to get right down to the point, you are trying to get the union in here," and then informed Armstrong that he was being laid off for 2 weeks. On the following Saturday, Arm- strong telephoned Cripe, inquired if he should report for work on Monday morning, and, receiving a negative answer, called at the plant shortly thereafter and obtained a check for his accrued wages. Arm- strong was never recalled to work and it is admitted by the respond- ent in its answer and through the testimony of Cripe that the alleged lay-off was in reality a discharge. The respondent maintained in its answer that Armstrong was dis- charged for "interference with the production and labor of other fel- low workers." In support of this contention, Morris Cripe stated at the hearing that he had dismissed Armstrong because two other em- ployees had lodged complaints against him. Cripe testified in this regard that John Frieburger, a press operator, reported that Arm- strong had attempted to persuade him to run fewer "heats" and thus retard his production, and that Harvey Hively, a lathe operator, com- plained that Armstrong while circulating the petition for shorter hours "was calling him names and bothering him to such an extent that his nerves were so upset he could not do his work." We are convinced by the testimony of the respondent's own witnesses, however, that Armstrong's discharge was not motivated by these al- leged complaints. Cripe testified that Frieburger's accusation was made several weeks before Armstrong's dismissal and that he never at any time informed Armstrong of the charge against him in that respect. These facts, together with the respondent's failure to pro- duce Frieburger as a witness to corroborate Cripe, not only reflect upon the credibility of Cripe's testimony but also lead us to infer that the respondent was not seriously impressed by this alleged complaint when it was made and that Armstrong's dismissal at a later date was not influenced thereby. It also appears from the testimony of Leslie Schoomaker, the foreman who reported Hively's complaint to Pease, that Hively's grievance against Armstrong was not based on the allegedly belligerent manner in which Armstrong advocated the peti- tion for shorter hours, but rather grew out of Hively's disapproval of the petition itself, Hively wanting to "work all the hours he pos- sibly could in order to make more money." It is likewise significant GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL. 1353 that, although the respondent was aware that Hively was an extraor- dinarily sensitive and excitable person who was easily upset, and con- sequently prone to take offense easily, the respondent made no effort to ascertain the validity of Hively's complaint and at no time prior to his discharge apprised Armstrong of the accusation against him. In view of the respondent's knowledge of the true cause of Hively's resentment against Armstrong and of his easily agitated disposition, the respondent's failure to inquire into the merits of Hively's charge persuades us that the respondent has merely seized upon it as a pur- ported excuse for a discharge motivated by other considerations. Except for the two instances examined above and found to be unsupported by the evidence, the respondent has failed to adduce any satisfactory evidence that Armstrong, in his advocacy of the petition for shorter hours, exceeded the bounds of propriety or in any manner interfered with the production of his fellow employees. On the contrary, Claude Gardner, who was Armstrong's foreman and was consequently in the position best to observe his behavior, gave Armstrong a recommendation after his discharge and also testified that Armstrong was at all times a satisfactory workman and that his conduct in no way deviated from that of the ordinary employee in the plant. The utter lack of evidence to support the respondent's contention that Armstrong molested and interfered with the production of his fellow employees leads to the inescapable conclusion that the pur- ported reason was a mere cloak for the real motive for Armstrong's discharge. In view of all the evidence we are convinced that Arm- strong was discharged not only because he circulated the petition for shorter hours and engaged in other similar concerted action but also because the respondent believed that his activities were intended to encourage the introduction of a labor organization into the plant. Although there was then no organizing campaign being conducted among the respondent's employees, the respondent's belief that such was Armstrong's intention arose from the notice which Armstrong posted on the bulletin board referring to a union meeting and pur- portedly signed by a union leader, and is clearly indicated by the statement of the respondent's superintendent that Armstrong was being discharged for "trying to get the union in here." It is obvious that Armstrong's discharge for these reasons and for the purpose of halting such concerted activities and forestalling the inception of a labor organization constitutes a plain violation of the Act. Such a discharge discourages concerted activities for the purposes of col- lective bargaining and has the effect of discouraging the formation of and membership in a labor organization which is the customary instrument utilized by employees to achieve collective bargaining. 1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent has discriminated in regard to the hire and tenure of employment of Merle Armstrong, thereby dis- couraging membership in a labor organization and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Even if we assume that Armstrong's discharge does not discourage membership in a labor organization within the meaning of Section 8 (3) of the Act, such discharge for engaging in concerted activities for the purposes of collective bargaining and other mutual aid and protection interfered with, restrained, and coerced Armstrong and the employees generally in the exercise of the rights guaranteed by Section 7 of the Act and, therefore, constitutes an unfair labor practice within the meaning of Section 8 (1) of the Act.3 Armstrong's average weekly wage at the respondent's plant was $22. Between the date of his discharge and the time of the hearing Armstrong earned $322 at other jobs, but he was not employed at the date of the hearing. Lyle Armstrong, brother of Merle Armstrong, was first employed by the respondent in August 1936 as a press operator. His work entailed the operation of two presses with two corresponding honey- combed moulds and consisted of filling the moulds with raw rub- ber and heating them for a specified period known as the "cure." It was customary to alternate the moulds in the presses so far as possible, a process performed by filling the first mould and placing it in the press and then preparing the second to be inserted just be- fore removing the first. Since a mould must be removed as soon as the curing period ends, it is obvious that this alternating method which contemplates keeping one mould in the press at all times can be employed only if the operator has sufficient time to empty and refill one mould before the "cure" on the other is completed. Armstrong joined the United in April 1937, and was an active member thereafter. We have already noted that on May 12, Arm- strong removed from circulation the first of the respondent's anti- union petitions, thereby incurring the particular disfavor of Orlando Hower, the respondent's foreman. Immediately thereafter, Claude Gardner, Armstrong's night foreman, instructed him to report for work the following morning on the day shift, which was supervised by Hower. Since Armstrong's night duty continued until midnight and the day shift began at 6 o'clock, this transfer necessarily re- sulted in discomfort and inconvenience to Armstrong and consti- tuted a distinct departure from the usual custom of changing shifts over the week end in order to take advantage of the day of rest. 3 See Matter of Indianapolis Glove Company and Amalgamated Clothing Workers of America, Local No. 115, 5 N . L. R. B. 231. GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL . 1355 Gardner offered no satisfactory explanation of this unusual action but merely stated that Armstrong was going to work for another person. Pursuant to his instructions, Armstrong reported for work the following morning and was thereupon assigned by Hower to a shoe cleat mould with 100 cavities and a tonic cap mould with 144 cavi- ties. It was unusual to allot two such moulds, each of which con- tained so large a number of cavities, to the same pressman, the practice being to group a larger cavity mould with a small one. It also appears that filling the shoe cleat mould required the indi- vidual operation of a screw on each cavity, a process which ma- terially increased the time spent in preparing it for the press. In addition to these facts, which are admitted by the respondent, although the normal "cures" on both shoe cleats and tonic caps is 10 minutes, Armstrong testified that Hower instructed him to re- duce such heats to 8 and 9 minutes, respectively, and that the shorter heats not only encroached upon the time available to prepare one mould while the other was "curing," but also resulted in an "under- cured" product which was sticky and difficult to remove from the moulds. According to Armstrong the reduction of the "cure" to- gether with the additional unusual circumstances noted above made it impossible to alternate the moulds in the usual manner. Immediately after work commenced, Hower approached Arm- strong and complained that he was not alternating his moulds, and thereafter stood at Armstrong's elbow for long periods at frequent intervals throughout the day keeping him under close supervision and constantly reprimanding him for his alleged failure to operate his moulds in the proper manner. Armstrong, who had at all times previously been an admittedly efficient and satisfactory pressman, worked through his lunch period for a number of days in an at- tempt to satisfy Hower. Despite these efforts, however, the latter's rigid surveillance of Armstrong, interspersed with recurrent com- plaints, continued without respite until May 21. On that date and for about 2 days prior thereto Armstrong was operating in place of the shoe cleat and tonic cap moulds a bumper mould of 225 cavities in conjunction with a 648-cavity bottle stopper mould. The latter was one of the largest moulds in the plant and, according to Armstrong, could not be alternated with the bumper mold, which also contained an unusually large number of cavities. About 15 minutes before quitting time Hower again censured Arm- strong for his failure to alternate the moulds, thus precipitating a quarrel between the two men. At the conclusion of this dispute Hower gave Armstrong a check for his wages, accompanied by a written notice signed by Morris Cripe stating that he was being dis- 1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged because he had refused to comply with his foreman's instruc- tions relative to the handling of the mould equipment. It is signifi- cant that, despite the fact that Hower reported to Gordon Pease that he was having trouble with Armstrong, Pease did not discuss the matter with Armstrong or make any attempt to adjust the difficulty, although he admitted that it was his practice to do so. It is also noteworthy that after Armstrong's discharge Claude Gardner refused to give Armstrong a recommendation, although he admitted that Armstrong's work under him was satisfactory and, according to Arm- strong, Gardner stated, "It's my job and I am not going to give you any." Gardner denied making such statement but offered no other satisfactory reason for his refusal to give Armstrong a recom- mendation. We are of the opinion that Armstrong was not discharged for the reason stated by the respondent. It is conceded by the respondent that during the period in which Armstrong's conduct was in question, he was assigned moulds both of which, contrary to the usual custom, contained a large number of cavities, and that this circumstance ren- dered it difficult to alternate them in the ordinary manner. This was particularly true on the date of Armstrong's discharge, when he was attempting to handle in a rotating system one of the moulds with the largest number of cavities in the plant, together with a second mould with a great number of openings. We view as patently false Hower's testimony that it takes no longer to empty and refill a mould contain- ing more than 600 cavities than is required for a mould with a small number of openings. This statement is contradicted by his own ad- mission at another point in his testimony that it was not customary to assign a worker two moulds with a large number of cavities because it takes longer to fill and empty them. Although Hower denied giving Armstrong any such instructions, we are likewise convinced that he ordered the "cures" on Armstrong's shoe cleat and tonic cap moulds reduced from their normal periods of 10 minutes each. Arm- strong's story, particularly with respect to the effect of the shorter "cure" upon the rubber itself and upon his ability to alternate his moulds, not only has a graphic clarity which gives it the stamp of authenticity but it also constitutes the explanation of Armstrong's failure to alternate his moulds which is most consistent with the ad- mitted fact that he had theretofore been at all times an efficient worker. We are unimpressed by the testimony pf a number of the respond- ent's witnesses that they casually observed that Armstrong occa- sionally had both moulds on the bench at once or that he did not keep one mould in his presses at all times. Such statements merely imply a failure to alternate perfectly and have no tendency to contradict the GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL. 1357 explanation advanced by Armstrong for his admitted deviation from the usual practice of handling the moulds. We likewise find no support for the respondent's contention in the testimony of Coulter Longcor, a press operator, to the effect that on one occasion just prior to Armstrong's discharge he operated the tonic cap and cleat moulds on the night shift as a pair and expe- rienced no difficulty in alternating them. Since it appears that the night shift was supervised by another foreman who did not shorten the normal "cures" on Longcor's mould, the latter's statements afford no proper test for Armstrong's ability to alternate the moulds with a shorter period in which to empty and fill them. We also deem it significant that, although the respondent claimed that Armstrong's alleged refusal to operate his mould properly would tend to slow production, no attempt was made to demonstrate that Armstrong produced less than other pressmen, despite the fact that a record was kept of the number of heats run by each operator. A careful review of the circumstances pertaining to Armstrong's discharge persuades us that it was the culmination of a deliberate attempt to fabricate an excuse to get rid of him because of his union activities. Shortly subsequent to joining the United and immediately after attempting to prevent the respondent's circulation of an anti- union petition, Armstrong was transferred in contravention of plant practice to the day shift, where he came under the jurisdiction of Orlando Hower, the foreman who had evinced particular interest in Armstrong's concealment of the respondent's petition. Hower there- upon allotted Armstrong moulds with an abnormally large number of cavities and reduced "cures," circumstances which rendered alter- nation in the usual manner impossible. Nevertheless, despite his knowledge of the true reason for Armstrong's difficulties, Hower badgered Armstrong with frequent unfounded complaints and strict supervision for a number of days, and finally by his unfair criticism provoked an altercation with Armstrong. Directly thereafter, the respondent permitted Hower to discharge Armstrong for an alleged reason which was groundless and without any attempt on the part of the respondent's general manager to discuss the matter with Arm- strong with the view to a possible satisfactory adjustment, although the practice had been to do so in all such cases. These facts demonstrate and we find that Armstrong was dis- charged because of his union activities. We further find that by dis- charging Lyle Armstrong the respondent has discriminated in re- gard to his hire and tenure of employment, thereby discouraging mem- bership in the United and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the time of his discharge Armstrong was earning 45 cents per hour and an average wage of approximately $22 per week. Be- tween his discharge and the hearing, Armstrong earned $86 at other jobs, and between January 15, 1938, and the same date earned $43.60 per month on the pay roll of the Works Progress Administration. Raymond Hoffman was hired by the respondent in August 1933, and, except for a lay-off of several months shortly thereafter, re- mained in the respondent's employ until his dismissal on June 17, 1937. Hoffman joined the United in April 1937 and thereupon became financial secretary and a member of the bargaining committee which conferred with the respondent on several occasions. On May 12, as hereinbefore noted, Hoffman protested to Morris Cripe against the respondent's participation in the circulation of the anti-union peti- tion. It likewise appears that on June 11, Hoffman induced George Stump, brother of Lloyd Stump, foreman, to join the United. On the following morning Hoffman and George Stump were working together in the buffing room when Morris Cripe approached and reprimanded Hoffman sharply for talking, but said nothing to Stump, although both Hoffman and Stump were engaging in conversation. A few days thereafter, on June 16, Hoffman was working on the night shift in the milling department. It so happened that at about 9:30 p. m. the raw materials for the tube mill at which Hoffman was employed became temporarily exhausted. Having nothing to do at the moment, Hoffman walked out of the back door of the shop and stood in or near the entrance to the boiler room directly opposite for a short time. While Hoffman stood there, Harold Kerlin, foreman in the heater department, flashed a light on him from the roof of the respondent's plant just above Hoffman's position. Hoffman then shouted a greeting to Kerlin and returned to his place in the plant. At the hearing Kerlin testified that upon going to the roof to close a skylight he had observed Hoffman walking out of the shop, that having heard that Hoffman had been smoking during working hours he had followed Hoffman by way of the roof, and that he observed Hoffman began smoking before turning the light on him. Kerlin then wrote Morris Cripe a note reporting what he had allegedly seen, and on the next day, without investigating Kerlin's charge or discussing it with Hoffman, the respondent gave Hoffman a written notice signed by Cripe stating that he was being dismissed for smoking during working hours. At the hearing Hoffman denied that he was smoking on the occasion alleged by the respondent. His testimony in that regard is partly substantiated by the statement of George Stump, who worked beside Hoffman. Stump testified that at the time in question Hoffman was never outside the line of his vision, and that he did not observe Hoff- GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL. 1359 man smoking. Stump further stated, however, that upon returning to his place, Hoffman had said that he believed that he had been caught smoking. Hoffman denied that he made such a statement and testified that he merely remarked that the person on the roof was probably attempting to detect someone smoking. We are relieved of the necessity for resolving the conflicting testi- mony on this point, however, by our considered belief that even if Hoffman was smoking on the night in question, such act was not the real reason for his discharge. Although notices forbidding smoking were posted in the plant, there were no particular fire hazards and it was customary for the employees, including some of the respondent's foremen, to go to the boiler room at intervals during working hours in order to smoke. It appears that the respondent, through its fore- men, was aware of these frequent infractions of its formal rules. Despite such knowledge, however, it appears that the respondent at no time during more than 3 years preceding Hoffman's discharge even so much as admonished Hoffman or any other employee for smoking. We are not impressed by the statement of a number of the respondent's witnesses that a demoted foreman named Rohrer was discharged in 1933 for that reason. The vague and indefinite nature of the testimony with respect to the circumstances of this alleged dismissal, together with the fact that it occurred several years before Hoffman's discharge, serves to strip it of any probative value which it might otherwise have in the present case. In view of the respond- ent's long-standing practice of countenancing smoking among its employees, we may reasonably infer that such alleged infraction of its rules was not deemed so serious by the respondent as to merit the drastic disciplinary action which was meted out to Hoffman. Although the respondent informed Hoffman on June 17 and sub- sequently maintained in its answer that he was dismissed for smoking, it was contended by the respondent at the hearing that incompetence was the primary reason for Hoffman's discharge. In support of this contention, Gordon Pease stated that from the very beginning of his employment Hoffman proved slow and lacking in adaptability and had consequently been transferred successively from one department to another in an attempt to find a suitable place for him. Leslie Schoomaker also testified in this regard that Hoffman had worked under his supervision at intervals during his employment and that Hoffman was indolent and generally inefficient. The respondent's testimony, with respect to Hoffman's purported inefficiency, however, is unconvincing. It appears that during the long tenure of Hoffman's employment he received only one complaint concerning his work. On that occasion, which transpired in 1934, Hoffman was operating a punch press. Shortly prior thereto he had lost the end of a finger at such work, a handicap which prevented 1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his again attaining the maximum of efficiency at that particular type of work. He was also performing at that time some additional tasks, such as setting up the dies for the other presses and taking care of the respondent's candy case which supplied sweets to the employees. These combined factors decreased Hoffman's output and consequently Vernon Pease, the respondent's secretary, complained that Hoffman's production was below standard. After Hoffman had explained the circumstances causing his deficiency, however, the respondent trans- ferred him to another department and never again intimated that his work was not satisfactory. It is also significant that, although the respondent kept individual records of the output of each of its em- ployees, no attempt was made to demonstrate by these records that Hoffman was an unsatisfactory workman, nor did the respondent adduce any testimony with respect to any specific instances of incom- petence on the part of Hoffman. The failure of the respondent to produce any concrete evidence of Hoffman's alleged incompetence, together with the fact that the latter worked a number of years without warning or complaint, compels us to conclude that such inefficiency did not actually exist. We are also of the opinion that even if Hoffman's asserted incom- petence were deemed established, the respondent's failure to disci- pline Hoffman for his allegedly long-standing inefficiency until he manifested interest in the United indicates that such reason "was culled ex post facto to screen its true motive" 4 for the dismissal. This view appears particularly sound when it is considered that Hoffman was not apprised of this purported reason for his discharge, when he was dismissed, but rather was expressly informed that his em- ployment was being terminated for another specific cause. This un- explained shift of emphasis on the part of the respondent from one excuse to another hitherto unmentioned leads us to infer not only that the second was an afterthought, hastily indulged in when it appeared that the first was frivolous,5 but also that both asserted reasons were mere pretexts to conceal the fact that Hoffman was discharged for his union activities. We find that Raymond Hoffman was discharged because of his union activities. We further find that by discharging him, the respondent has discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the United and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Hoffman was unemployed between his discharge and the hearing. 4 See Matter of Highway Trailer Company and United Automobile Workers of America, Local No. 1i5, etc., 3 N. L. R. B 591. 5 See Matter of Waterman Steamship, Corporation and National Maritime Union of America, etc., 7 N. L. R. B. 237. GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL. 1361 C. The alleged demotion of Harvey Hively Harvey Hively was hired by the respondent in 1936 as a lathe oper- ator. He joined the United soon after its inception in. the plant and thereupon became its vice president and a member of its bargaining committee. On August 9, 1937, Hively was assigned to an automatic lathe which he operated until August 13. During the morning of the latter date, the materials for the automatic being exhausted, Leslie Schoomaker, Hively's foreman, ordered him to remove the automatic features of the lathe and operate it by hand. Both Schoomaker and Gordon Pease testified that the change was made in order to keep Hively employed for the remainder of the day, and Hively himself admitted that the machine was altered so as to produce battering bushings which could not be made with the automatic equipment. After the change Hively found that the mechanism was cumber- some and difficult to operate as a hand lathe, largely because of a long screw which protruded from the carriage in such manner as to threaten to strike the operator in the stomach and to cause him some discom- fort if he moved too close to the lathe. Hively thereupon complained to Schoomaker and asked what he had done to be treated in such a fashion. Schoomaker and Hively then together approached Gordon Pease with respect to the difficulty, and in the presence of Pease, Schoo- maker explained that the change was a temporary expedient for the purpose of furnishing employment to Hively until the end of the day. Thereupon, Pease advised Hively to go back to work and for- get about the matter, to which Hively replied, "You are a hell of a man to be commander of the American Legion." Nevertheless, at the conclusion of the interview, Hively returned to his lathe, but after working for a short while, informed Schoomaker that if he (Hively) could obtain his check he would quit. Shortly thereafter Pease called Hively into his office and asked him to sign a statement to the effect that he was resigning and not being discharged. This Hively at first declined to do, but when Pease refused to give him his check unless he acquiesced, Hively signed the statement and received a check for his wages. It was alleged in the complaint and the Trial Examiner found that Hively was demoted to a position which forced him to quit because of his union activities. We do not believe, however, that such was the case. The attitude of the respondent toward Hively was not indica- tive of a desire to force his resignation. On the contrary, Pease ad- vised Hively to return to his machine and forget about the incident. Indeed, had the respondent so wished, the opportunity to get rid of Hively presented itself about 3 weeks before the actual termination of his employment. At that time Hively intimated to Schoomaker that 1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he contemplated quitting his job and the latter encouraged him to remain in the respondent's employ. Although some inconvenience was involved in the hand operation of the machine, the fact that the altera- tion was merely a temporary means of meeting an emergency situa- tion and involved no modification in wages or hours indicates that it was not intended to be and did not constitute a demotion designed for forcing Hively's resignation, but rather was motivated by a desire to keep him in employment. We find that the record does not support the allegation of the com- plaint that Hively was demoted to a position which forced him to quit because of his union membership or activity. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with its operations 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. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order the respondent to cease and desist therefrom and to take certain affirmative action designed to effec- tuate the policies of the Act, including the reinstatement of Merle Armstrong, Lyle Armstrong, and Raymond Hoffman, without preju- dice to their seniority or other rights and privileges. We shall further order the respondent to make whole Merle Armstrong, Lyle Armstrong, and Raymond Hoffman for any loss of pay they have suffered by reason of their respective discharges by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 6 during said period. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : G By "net earnings" is meant earnings less expenses, such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects are not considered as earnings, but, as provided below in the Order, shall he deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal , or other govern- ment or governments which supplied the funds for said work-relief projects GOSHEN RUBBER AND MANUFACTURING COMPANY ET AL. 1363 CONCLUSIONS OF LAW 1. United Rubber Workers of America, Local #124, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of their right to self-organization, to form, join, or assist a labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid and protec- tion, as guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Merle Armstrong, Lyle Armstrong, and Raymond Hoffman, and each of them, thereby discouraging membership in a labor or- ganization, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. By discharging Merle Armstrong because he engaged in con- certed activities with other employees for the purposes of collective bargaining and other mutual aid and protection, thereby interfering with, restraining, and coercing Armstrong and the employees gen- erally in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in an unfair labor practice within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not discriminated in regard to the hire or tenure of employment or any term or condition of employment of Harvey Hively within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Goshen Rubber and Manufacturing Company, Goshen, Indiana, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in United Rubber Workers of Amer- ica, Local #124, or any other labor organization of its employees, by discriminating in regard to hire or tenure of employment or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to 1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Merle Armstrong, Lyle Armstrong, and Raymond Hoff- man immediate and full reinstatement to their former positions with- out prejudice to their seniority and other rights and privileges; (b) Make whole Merle Armstrong, Lyle Armstrong, and Raymond Hoffman for any loss of pay they may have suffered by reason of their respective discharges, by payment to each of them of a sum of money equal to the amount which he would normally have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said period; deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount 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) Immediately post notices in conspicuous places throughout its plant and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent will cease and desist in the manner aforesaid; (d) Notify the Regional Director for the Thirteenth Region in writ- ing 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 has discriminated in regard to the hire and tenure of employment and/or any term or condition of employment of Har- vey Hively, be, and it hereby is, dismissed.