Link Belt Company

In the Matter of LINK BELT COMPANY and LODGE 1604 OF AMALGA- MATED ASSOCIATION OF IRON STEEL AND TIN WORKERS OF NORTH AMERICA, THROUGH THE STEEL WORKERS ORGANIZING COMMITTEE AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION Case No. C-607.-Decided May 12, 1939 Metal Products Manufacturing Industry-Jurisdiction: equitable principle of laches, effect upon-Interfo ence, Restraint, and Coercion: espionage; employer utilized through the National Metal Trades Association an em- ployee as a labor spy-Company-Dominated Union: solicitation of em- ployees during working hours on company property with consent of supervisors; favoritism and acts of interference by supervisors ; solicitation of mem- bers by supervisors ; recognition granted shortly after company disbanded illegal employee representation plan; identity of employee leadership in com- pany-dominated union and employee representation plan ; hostility to union not company dominated ; immediate granting by employer of bulletin-board privileges; disestablished as agency for collective bargainingDtscreminatwn: discharges for union membership and activity to discourage membership in nuion; hiring of one employee conditioned to encourage membership in com- pany-dominated union ; charges of, dismissed as to four employees-Reinstate- inent Ordered: discharged employees-Back Pay: awarded: from date of dis- crimination to date of reinstatement or offer of reinstatement ; earnings as musician not deducted from net earnings of one employee on showing he had this independent source of income prior to discharge; monies received by employees for work performed upon Federal, State, county, municipal, or other work-relief projects to be deducted and paid over to agency which supplied funds for such projects-Order: employees non-discriminatorily laid off not to be discriminated against when rehiring is possible. Mr. Stephen M. Reynolds, for the Board. Pope d Ballard, by Mr. Edward W. Ford, Mr. William F. Price, Mr. Henry E. Seyfarth, and Mr. W. C. Carter, of Chicago, Ill., for the respondent. Mr. Benjamin Wham and Mr. Forrest A. King, of Chicago, Ill., for the Independent. Mr. Robert L. Condon, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed May 25, 1937, and amended charges duly filed September 7, 1937, by Lodge 1604 of Amalgamated Association 12 N. L. R. B., No. 91. 854 LINK BELT COMPANY 855 of Iron, Steel and Tin Workers of North America, herein called the Amalgamated, through the Steel Workers Organizing Committee, affiliated with the Committee for Industrial Organization, herein called the S. W. O. C., the National Labor Relations Board, herein called the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint, dated March 4, 1938, against Link Belt Company, an Illinois corporation, herein called the re- spondent, alleging that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce, within the mean- ing of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent, the Amalgamated, and Independent Union of Craftsmen, herein called the Independent, a labor organiza- tion named in the complaint as being and having been dominated, interfered with, and supported by the respondent. With respect to the unfair labor practices, the complaint, as amended, alleges in substance that the respondent (a) on or about April 19, 1937, instigated the formation of the Independent, domi- nated, interfered with, and contributed support to it, and on April 21, 1937, recognized it as the sole bargaining agent for all the em- ployees in the plant; (b) at various times between September 21, 1936, and December 8, 1937, discouraged membership in the Amalga- mated by discriminating in regard to hire and tenure of employment and terms and conditions of employment of 11 named employees; (c) during December 1936, and January 1937, discouraged membership in the Amalgamated, by imposing discriminatory conditions upon the reinstatement of 2 such employees, theretofore discriminatorily dis- charged; (d) continuously, from prior to March 1933 until the date of the complaint, utilized espionage in relation to union affiliation and activities of its employees; and (e) by the foregoing acts inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The answer of the respondent denies the material allegations of the complaint, except that it admits that the respondent recognized the Independent as the sole bargaining agent for its employees. The answer affirmatively alleges that the discharges of three employees, named in the complaint, have been investigated by the Board and settled by it and the respondent, and that the Amalgamated and the individuals named in the complaint are guilty of lathes in that an unreasonable length of time has elapsed between the alleged acts of the respondent and the issuance of the complaint. Pursuant to notice of hearing duly issued and served upon the respondent, the Independent, and the S. W. O. C., a hearing was held 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Chicago, Illinois, from March 14 to March 23, 1938, before Hugh C. McCarthy, the Trial Examiner duly designated by the Board. On the first day of the hearing, the Independent filed a motion to inter- vene and participate in the hearing. This motion was granted by the Trial Examiner, but participation was limited to those matters which directly or indirectly affected the interests of the Independent. The Board, the respondent, and the Independent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties, subject, in the case of the Independent, to the reservation previously noted. At the beginning of the hearing, the respondent moved that por- tions of the complaint be stricken or, in the alternative, that the respondent be furnished a bill of particulars. At the close of the Board's case, the respondent moved to dismiss the complaint as a whole and each and every paragraph thereof, and further that all the testimony theretofore adduced be stricken. These motions were denied by the Trial Examiner. The Trial Examiner granted the motion of the Board, made at the close of its case, to amend the com- plaint to conform to the proof. The Trial Examiner made numer- ous other rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Ex- aminer and, except as hereinafter indicated, finds that no prejudicial errors were committed. The rulings, with the one exception noted below, are hereby affirmed. The Board finds no merit in the conten- tion that this proceeding is barred by laches.1 On May 9, 1938, the Trial Examiner filed his Intermediate Report, a copy of which was duly served on all the parties, finding that the respondent had engaged in, and was engaging in, unfair labor prac- tices, within the meaning of Section 8 (1), (2), and (3), and Section 2 (6) and (7) of the Act, and recommending that the respondent cease and desist therefrom and take certain affirmative action to remedy the situation brought about by the unfair labor practices. On May 18, 1938, the Amalgamated requested an extension of time in which to file exceptions to the Intermediate Report, which was granted by the Board. Thereafter, the respondent, the Amalgamated, and the Independent filed exceptions to the Intermediate Report. The respondent also filed a brief in support of its exceptions, which has been duly considered. Pursuant to notice served on all the parties, oral argument was held before the Board at Washington, D. C., on December 20, 1938. The respondent and the Independent appeared by counsel and participated in the argument. The Board 1 See Matter of Colorado Milling & Elevator Company and Denver Trades and Labor Assembly, 11 N L R. B. 66. LINK BELT COMPANY 857 has reviewed the exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the fol- lowing : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Link Belt Company is an Illinois corporation, which owns and operates directly seven plants: The 39th Street plant 2 and Cald- well-Moore plant in Chicago, Illinois; two plants in Philadelphia, Pennsylvania; one in Atlanta, Georgia; and two in Indianapolis, Indiana. Subsidiaries of the respondent operate four other plants. It maintains warehouses in seven metropolitan centers and has 28 sales offices scattered throughout the United States and Canada. This proceeding is directly concerned solely with the 39th Street plant, Chicago, Illinois, which employs between 750 and 1,200 persons. The 39th Street plant engages in complete steel- and iron-foundry operations in the production of cranes, shovels, draglines, mining conveyors, dumps, washers and driers, handling and preparation equipment for factories and foundries, mine tipples, and miscella- neous other steel construction. The raw materials used at the 39th Street plant consist principally of pig iron and scrap iron, and approximately 90 per cent of all raw materials used in this plant are brought to it from outside the State of Illinois. The plant under normal conditions has an average monthly tonnage production of 1,100 tons. Eighty per cent of its finished products are shipped to purchasers outside the State of Illinois. II. THE ORGANIZATIONS INVOLVED Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1604, is a labor organization, affiliated with Steel Workers Organizing Committee, and through it with the Com- mittee for Industrial Organization. Although it admits to mem- bership certain of the production and maintenance employees of the respondent, the record does not disclose the eligibility require- ments of the Amalgamated. Independent Union of Craftsmen is an incorporated labor organi- zation whose membership is confined to employees of the respondent. .It has chartered Local No. 1 at the 39th Street plant and Local No. 2 at the Caldwell-Moore plant, both in Chicago, Illinois, and it is not affiliated with any other labor organization. 2 Also referred to as the Pershing Road plant. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. THE UNFAIR LABOR PRACTICES A. Background of the unfair labor practices There was no labor organization among employees of the respond- ent until after the passage of the National Industrial Recovery Act. Then the respondent, in purported compliance with that Act, estab- lished at the 39th Street plant an employees' representation plan. herein called the Plan, as an instrument through which the employees might deal with it. The Plan had as its sole functioning body an employees' board of seven employee representatives. This board met at least once a month with a management's representative and occa- sionally with the president of the respondent, and various matters pertaining to working conditions were discussed. Some minor grievances were adjusted, but on the whole the board was ineffectual. For example, the board was unable to induce the management's rep- resentative to take any action on such questions as wage increases or reduction of hours of work. The greatest concession that the board was able to obtain was to have an announcement made to it first whenever the respondent itself decided to grant wage increases. There was no procedure under the Plan for a general meeting of all employees, and when one of the representatives, Louis Salmons, suggested such a general meeting at the first session of the board. he was voted down by the other board members. Further light is shed on the character of the board as a representative of the em- ployees by the fact that two of the seven original board members were foremen. All expenses of the Plan were borne by the respondent. It fur- nished ballots and ballot boxes, and elections of board members were held on the company's premises. There is no doubt that the Plan constitutes an employer-dominated labor organization within the meaning of the National Labor Relations Act,3 and at the hearing the respondent so conceded. Despite its patent illegality, however, the respondent, ill-advised by counsel, maintained the Plan, until April 19, 1937, when it was abruptly discarded under circumstances to be discussed below. It is evident from what has been set forth that the employees' rep- resentative board was ineffective as a representative of the respond- ent's employees. It did, however, provide a sounding board through which the respondent expressed its hostile views toward outside labor organizations; furthermore, the Plan itself had the inevitable effect of hampering self-organization of the respondent's employees. The record reveals that on one occasion in the summer of 1936 the subject National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U. S 261 (19$8) LINK BELT COMPANY 859 of outside labor organizations came up at a meeting of the em- ployees' board, and the management representative, E. L. Berry, expressed himself freely on the subject, revealing his bias against such organizations, stating to the representatives that he would quit "in the event outside people came into our plant and told us how to run the plant." There can be no doubt that such statements, although made before the Amalgamated had started to organize at the 39th Street plant, intimidated the employees who heard them or to whom they may have been repeated, in that they served as a clear warning of the respondent's attitude should an outside union appear on the scene. Berry, when asked to explain his statements at the hearing, did not deny making them, but stated that he did not have the Amalgamated or the S. W. 0. C. in mind, and that the respondent would deal with the Amalgamated if it were certified by the Board and if it adopted a "reasonable attitude." We are con- vinced, however, that Berry forcibly impressed upon the employees' board the respondent's anti-union sentiments, for, as was admitted at the hearing, the respondent felt in no way inhibited by the Act until after April 12, 1937, when its constitutionality was upheld by the Supreme Court of the United States. B. Interference with, and domination and support of, The Independent Union of Craftsmen The respondent's attempt through the medium of the Plan to deflect and frustrate its employees' impulse towards self-organization was not entirely successful. A substantial number of employees joined the Amalgamated during the period from September 1936 to April 1937. Whatever success the Amalgamated achieved was due largely to the efforts of Louis Salmons, a former employee board member, who had become dissatisfied with the Plan. Salmons was immediately discharged when his activities came to the attention of the respondent, under circumstances, to be discussed below, which indicate a violation of the Act. The treatment of Salmons was in sharp contrast to the attitude displayed by the respondent toward the originators of The Independent Union of Craftsmen. The Independent was a direct response to the decisions upholding the constitutionality of the Act. Shortly prior to these Supreme Court decisions, a group of the respondent's employees who were opposed to the Amalgamated began to discuss the formation of an inside union. Prominent in the group were Linde, Brucks, Litster, Rosenbaum, and Froling. Brucks, Litster, and Froling were repre- sentatives under the Plan, the latter being the last chairman of the employees' board of representatives, and, as will be hereafter indi- 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cated, the Plan representatives, without exception, were active in establishing the Independent. The organizers of the Independent evidently did not relish the rights of self-organization which are guaranteed by the Act. The testimony of Linde on his reactions to the Jones cC Laughlin case 4 is revealing : Q. (By the Independent.) Directing your attention to April 12, 1937, what if anything happened that day? A. We were working in the shop . . . and someone came to the office and said that the Act was legal, had been declared constitutional. Q. That is, the Wagner Act? A. The Wagner Act had been declared constitutional, and a group of us were dismayed, I am frank to admit, or we thought there was nothing for us to do. Q. (By the Trial Examiner.) Why were you dismayed? A. I will tell you, we had banked our hopes that it would be declared illegal, and immediately the labor unrest and trouble would have stopped, and our company would proceed and all the other companies would proceed to enjoy the prosperity which we thought was coming at that time. Linde expressed a frank hostility toward bona fide labor organizations at the hearing, and it is evident that respondent implanted upon the minds of those who organized the Independent the respondent's own dislike and distrust of outside unions. This hostility toward the Amalgamated and not a genuine desire for self-organization was the primary motivation for organizing the Independent. Linde, Litster, Brucks, and Rosenbaum met the evening of the day the Act was upheld, and decided to retain an attorney and to form an independent union. Before taking further steps, they conferred with some members of an independent organization at the Carnegie- Illinois Steel plant to secure information as to how such an organiza- tion was to be formed. Linde and Brucks that night drew up a rough draft of application petitions for membership in an inside organization. The following day, April 13, Linde, Brucks, Rosen- baum, and Litster talked to a few other employees, including Froling. asking their aid in the circulation of the application petitions, which they planned to prepare. That evening, April 13, Greenlee, a repre- sentative of office employees under the Plan, who apparently had been approached by Linde, arranged to have the heading at the top of the application petition hectographed on a machine maintained by the respondent in its planning room. 4National Labor Relations Board v Jones t Laughlin Steel Corp , 301 U S 1 (1937) LINK BELT COMPANY 861 On Wednesday, Thursday, and Friday, April 14, 15, and 16, the actual solicitation of the employees took place, and in these 3 days over 700 men signed the application petitions. Friday, April 16, the organizers of the Independent telephoned Benjamin Wham, a Chicago attorney, whom they knew to have been the attorney for other inde- pendent unions, and made an appointment for the next day. Linde and Brucks met with Wham the morning of April 17, and that after- noon another meeting was held attended by seven more employees. At these meetings a proposed constitution was drawn up and at Wham's suggestion application cards were prepared for printing. These cards, designating the Independent as sole collective bargain- ing agency of the signer, and revoking all prior authorizations for collective bargaining, were later circulated among those who signed the petitions. On Monday, April 19, Linde, Litster, and Froling presented to Berry, the assistant general manager of the respondent, a proposed agreement which provided for recognition of the Inde- pendent as exclusive bargaining representative of all employees at the 39th Street plant. At this time Berry counted the signatures on the petition, but refused to sign the agreement without permission from the respondent's president. Thereafter Berry conferred with the president and vice presidents of the respondent, recommending that the Independent be recognized and that the recognition agree- ment be signed. After the president's approval had been obtained, the recognition agreement was signed by Berry for the respondent and Litster for the Independent on April 21. On Thursday, April 22, the first meeting of the Independent was held at a nearby hall. This meeting,was attended by a crowd esti- mated variously from 250 to 500 persons. Among those attending were at least two foremen, Grenis and Siskauskis, and a number of women and children. The meeting was enlivened by the persistent questioning of Wham and Litster, who presided, by some of the members of the Amalgamated, culminating in the ejection of two of them. It appears that, at the meeting, Wham addressed the audience, dis- cussed the Act, and denounced outside unions. Thereafter, a con- stitution was adopted, the work of the organizing committee ratified, and a date set for a meeting to elect officers. The constitution was consistent with Wham's keynote address against outside unions, pro- viding among other things that only employees of the respondent were eligible for membership, and that no member of another labor organization could be eligible for office. The bylaws which were later adopted provided that a member of another labor organization would not be eligible to office until 3 years after his resignation from such organization. The constitution contemplated the establishment of a general council with locals at other plants of the respondent. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the time of the hearing the Independent had chartered one such local at the Caldwell-Moore plant,of the respondent in Chicago. The same day that the proposed recognition agreement was pre- sented to Berry, the representation Plan was abandoned. Froling, as chairman of the employees' board, called a meeting of the board on the morning-of April 19, and asked Berry to meet with them. A paper, purporting to disband the Plan was thereupon signed by those present. Berry subscribed for the respondent, and Froling, Brucks, Lackhouse, Greenlee, Bailey, and Litster, for the board. A short time thereafter on the same morning, as we have pointed out, Litster, Froling, and Linde requested Berry to recognize the Independent. There was a gap of only 2 days between the abandonment of the Plan and the recognition of the Independent; demand for recognition and the demise of the Plan were virtually simultaneous acts, with Litster, Froling, and Berry participating in both. Although there is considerable conflict in the testimony, we are convinced from the record that from April 14 to April 23, the re- spondent's supervisory officials not only permitted but actually abetted the solicitation of members for the Independent during working hours. Frank Lackhouse, one of the representatives on the employees' board under the Plan, was approached by Froling, also a representative, in the morning of April 14, and was asked if he would take the appli- cation petition around the foundry. Lackhouse, at this time, was a member of the Amalgamated, but had not been particularly active in it. Lackhouse agreed to circulate such a petition, and Froling gave it to him. Lackhouse, however, felt uneasy about soliciting during working hours and made no attempt to obtain signers before lunch time. He testified that during the lunch hour Froling assured him that Brucks had obtained permission from the management to cir- cularize the men, but that he should keep under cover. Froling de- nied the statement about Brucks, but we are convinced that it was made since otherwise it would be difficult to accourt for Lackhouse's subsequent activity in behalf of the Independent. After lunch Lack- house conferred with his foreman, Nyberg, saying that Froling wanted him to help organize the plant. Nyberg told Lackhouse to go ahead, and the latter replied that he would as soon as he finished the job he was on. Lackhouse testified that about a half hour later the assistant superintendent of the foundry, Olson, called him away from his job, expounded the advantages of an inside union over an outside, and said that an outside union would "never get anywhere with them, just striking all the time." Lackhouse testified that after this conversation he dropped his work and went around getting sig- natures on the application petition in the foundry. Olson denied this conversation, but we do not credit this denial. Olson's testimony was LINK BELT COMPANY 863 evasive and contradictory. Furthermore, he admitted that he ap- proached Lackhouse after hearing rumors that the Independent was being formed and questioned him about it. Under these circum- stances we believe Lackhouse's testimony and we find that he was instructed by his superiors as to the virtues of an inside organization and acted upon those instructions in soliciting members. Lackhouse's solicitation for the Independent was aided even further by another of the respondent's supervisors. Lackhouse testified that Siskauskis, a foreman in the foundry, took the application petition from him and that Siskauskis himself signed the names of several employees who were working nearby. These were employees, ap- parently, who were unable to read or write. Testimony of Lackhouse as to this incident was corroborated at the hearing by several others who observed Siskauskis, including Joseph Thomas, one of those whose name was signed. Thomas, who is illiterate, testified that Siskauskis came up with a piece of paper, and when Thomas said that he could not write, Siskauskis signed Thomas' name. Thomas further testified that on two subsequent occasions Siskauskis again signed Thomas' name for application for membership in the Inde- pendent, the last time in the timekeeper's office over the protest of Thomas. Balcauski, a moulder in the foundry, testified as to other activity upon the part of Siskauskis for the Independent. Part of his testimony follows : He [Siskauskis] walked to me and he said, "Stanley, why don't you join in the C. I. O."-I mean this here, the independent craftsmen's union. I said "I am already with the C. I. 0." He says, "The hell with the C. I. 0." He says, "Join in with the craftsmen's union." He says, "We are going to have our union." Then I repeated, I says, "Do you know under the Wagner Law that it is not allowed for the foremen to go and organize the working men on company time or on his own time?" He told me this, he said, "To hell with that." So I says, "If you want to sign up independent, go ahead, I ain't going to waste my time." And I walked away. There is evidence of other activity by Siskauskis in behalf of the Independent and against the Amalgamated, of which the above i, illustrative. Siskauskis in general denied the activities and conversations at- tributed to him by the witnesses for the Board.5 We do not find his denials convincing. It is improbable that all the testimony showing 5 Counsel for the respondent in examining Siskauskis mistakenly attributed the testi- mony of Balcauski , part of which we have set forth above, to one Pronsktes, another Board witness. We will assume, however , that the denial by Siskauskis of a purported conversation with Pronsktes relates specifically to Balcauski's tesiimony. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD numerous acts by Siskauskis of interfering with the affairs of the Independent was fabricated. Furthermore, some of the testimony of Siskauskis is contradictory and absolutely incredible. For example. Siskauskis attended the first meeting of the Independent, stating on direct examination that he just happened to be going by the hall, saw the crowd, and went in to "see what is going on." Later in his testi- mony Siskauskis explained that he went into the hall to obtain some food for his pigeons. At one place in his testimony, Siskauskis stated that he remained at the Independent meeting 20 minutes or half an hour and at another only 5 or 10 minutes. Despite the fact that announcements of the first meeting were lying around the plant where they had been dropped by the men, Siskauskis insisted that he did not know that a meeting of the Independent was being held when he came to the hall. We do not believe Siskauskis' testimony in this regard. We find that Siskauskis, a foreman of the respondent, signed the names of employees of the respondent to the application petition. and in other ways actively aided the formation of the Independent. The record discloses other instances of solicitation for the Inde- pendent by supervisory officials of the respondent. Several witnesses for the Board testified that one Belov,e whom they referred to as the night foreman, solicited members for the Independent, approaching the entire night shift in the foundry. One of the witnesses, Kala- marie, testified that Belov received written instructions from his superior, McKinney, ordering him to attempt to get the night foundry shift to sign up in the Independent. Kalamarie testified that Belov showed him the note and asked his advice, and that he told Belov to follow his orders, whereupon Belov unsuccessfully tried to solicit Kalamarie and others. The respondent did not call Belov at the hearing, and there was no showing that he was unavailable to testify. McKinney denied sending such instructions to Belov. We do not credit his denial, however, since his testimony at times was contradictory and incredible. In view of this fact and the respond- ent's failure to call Belov, we are convinced that Kalamarie is to be believed. The respondent contented itself with attempting to show that Belov was not a supervisory official. It appears that prior to the elimination of the night shift near the end of 1937, there were from 15 to 20 men in the steel foundry. The respondent contends that no one had super- visory authority over these employees. We find this contention with- out merit. Belov was carried on the pay roll as a "night checker." He performed manual labor only when instructing another worker, or when an odd job had to be done and there was no one available. Belov used the office of the day foreman, McKinney, and relayed instructions Sometimes referred to in the record as "Bellop." LINK BELT COMPANY 865 to the regular employees. The men under him regarded him as their foreman, and it clearly appears that he exercised supervisory powers We find that Belov was a minor supervisory official. We find further that in soliciting for the Independent he acted directly at the behest of his superior, McKinney, an agent of the respondent. One of the Board's witnesses also testified that a strawboss in the chipping room, identified only as "Big Louie,"' actively solicited members for the Independent, telling employees that the respondent needed "51 per cent" of the employees to sign up in the "company union" in order to "get the Communists out." Staskey, the employment manager of the respondent, on at least one occasion used his position as a means of forcing an employee to join the Independent. Pete Solinko, an employee of the respondent, had made several requests of Staskey to obtain employment for his son, Frank. During the period the Independent was organizing, Pete called with Frank to renew his request. Pete at this time was a mem- ber of the Amalgamated. Staskey asked the elder Solinko how strong the Amalgamated was and whether he had joined the Independent. Solinko replied that he had not. Staskey told him to see an inspector named Kovatch and to sign an application for membership in the Independent. When Pete made no effort to see Kovatch, the latter came over and solicited him. Pete at first refused to sign, but the following day in the timekeeper's office signed his name on an appli- cation card and Kovatch wrote in his address, since Pete was unable to write English. The foundry superintendent, Skeates, had left the timekeeper's office as Kovatch and Pete Solinko entered. The same day Frank Solinko was hired. Frank corroborated his father's testi- mony that Staskey inquired about the Amalgamated, and we find Stas- key's denial of his activity unconvincing. Staskey admitted at the hearing that Pete showed him a signed application card for member- ship in the Independent just before Frank went to work. It appears, therefore, that Staskey must have indicated, as Pete testified and we find, that the employment of his son was conditioned upon Solinko's membership in the Independent. In addition to evidence of direct activities of the supervisory staff of the respondent during the formative stages of the Inde- pendent, the record is replete with evidence showing solicitation by individuals and the collection of dues for the Independent during company time. Particularly prominent in such solicitation was Kovatch, who in a brief space of 3 or 4 days obtained signatures from 100 to 250 employees. Kovatch was active in circulating both the original lists and later the printed application cards. Kovatch I 7 on cross-examination of a witness for the Board, Tomas, the respondent 's counsel, asked the witness if the last name of "Big Louie" was Sucorich , but Tomas was unable to state positively the last name. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied that he engaged in such solicitation in the presence of Lhe respondent's supervisory officials, but he admits that about a quarter of the signatures obtained by him were obtained on company time and company property. Kovatch checked his card out for 10 hours during the period of intense organization of the Independent, April 14 to 19, and spent this time soliciting other employees of respond- ent who were at work. We think it inconceivable that his superiors were unaware of his activity, particularly since, as we have shown above, some of them directly participated in activity on behalf of the Independent. We therefore credit the testimony of witnesses for the Board that Kovatch spent large portions of his time from April 14 to 19, 1937, openly soliciting membership in the Independent in the presence of the respondent's supervisors. In addition, Kovatch had bulletin boards made in the respondent's shop, which were prominently displayed throughout the plant. Other employees be- sides Kovatch, including Bailey, a representative under the Plan, aided in the organizational campaign of the Independent with scarcely a pretense of keeping under cover. The Amalgamated was not granted these privileges. The respondent contends that it warned its supervisory officials to maintain an attitude of strict impartiality between the Independent and the Amalgamated. Berry, the assistant general manager of the respondent, however, claimed that he was unaware of the active organization efforts of the founders of the Independent, until he was approached on April 19 by Linde, Litster, and Froling when they sought recognition. Although we find this contention incredible in view of the open aid which we have shown was given the Inde- pendent by supervisory officials prior to April 19, Berry's feigned ignorance of the creation of the Independent forced him to admit at the hearing that no instructions were given to the supervisors until after the Independent demanded recognition. At this time the in- - structions were useless since a majority of the employees had joined the Independent, in a large part because of the attitude displayed by and the activities of the respondent's supervisors. The conclusion is inescapable that the Independent is the creature of the respondent. Whereas the chief organizer of the Amalgamated, Salmons, was promptly discharged when his activities came to light, no such treatment was accorded employees active in the formation of the Independent. As we have seen, the principal organizer was motivated, in common with the respondent, by a frank hostility to the purposes of the Act and genuine self-organization. The respond- ent maintained the Plan until it realized that its abandonment would coincide with the recognition of the Independent. A bona fide labor organization was thus effectively forestalled. The representatives LINK BELT COMPANY 867 under the Plan were all active in solicitation for the Independent. The employees of the respondent of necessity must have linked the successor organization to the admittedly illegal Plan and thus to the respondent because of the identity of leading figures in the Plan and the Independent, and because the immediate granting of bulle- tin boards proclaimed to the employees the respondent's interest. The very haste with which recognition was accorded the Independent despite the respondent's knowledge, admitted by Berry at the hearing, that the Amalgamated claimed a substantial membership indicates the respondent's desire to forestall the outside union. Finally, the action of the respondent's agents and supervisors in aiding the Inde- pendent to organize precludes this organization from being a free choice of the employees. The respondent's subsequent show of im- partiality does not alter our conclusion. The respondent and the Independent also contend that the collective bargaining between the two indicates a lack of domination. Under the circumstances of this case, and in light of the improper actions of the respondent in establishing the Independent, no such inference arises.8 We find that the respondent has dominated and interfered with the formation and administration of the Independent, and has con- tributed support to it; that it thereby has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. Espionage The respondent has long been a member of the National Metal Trades Association, herein called the N. M. T. A., and of its Chicago local branch. For more than 20 years a lathe operator employed by the respondent, one Cousland, made monthly reports to the N. M. T. A., which were marked "personal" and signed by a desig- nated number. These reports were then copied by the N. M. T. A., the copies sent to the respondent, and the originals destroyed. The respondent destroyed the copies as soon as they were read. For his services as an under-cover operative, Cousland received, in addition to his regular salary as a lathe operator, $8 to $10 a month, which the N. M. T. A. paid by money order and for which it was reim- bursed by the respondent. Cousland sent his last report to the N. M. T. A. in October or November 1936. The N. M. T. A. is an employers' association long dedicated to the principles of the open shop. Prior to an amendment of its consti- tution in April 1937, it openly espoused an anti-union philosophy. Among its other activities, the N. M. T. A. furnished labor spies to fi See Natwnal Labor Relations Board v. American Potash and Chemical Corp., 98 F. (2d) 488 (1938). 169134-39-vol. 12-56 868 DECISIONS (OF NATIONAL LABOR RELATIONS BOARD those of its members who wished to utilize them, having 36 secret operatives in its employ in October 1936, of whom 12 admittedly devoted their attention to union activity. It ceased employing secret operatives shortly before the initiation of hearings by a subcommit- tee of the United States Senate Committee on Education and Labor which was appointed to investigate violations of civil liberties.9 The respondent contends that Cousland's reports concerned such matters as dissatisfaction with piece-work rates, and suggestions for efficiency or safety, and not union activity. Berry, who received the reports from the N. M. T. A., testified that Cousland was performing a function similar to that of a grievance committee of a labor organi- zation, since, acting on his reports, the respondent could remove sources of dissatisfaction. While it is true that Cousland probably did report on piece-work dissatisfaction, we do not believe that all his activity was so innocuous. The melodramatic secrecy veiling Cousland's reports, the use of a number as a signature, the circuitous routing through the anti-union N. M. T. A., and the immediate destruction of the reports by both the N. M. T. A. and the respond- ent, suggest, and we find, that Cousland also played the role of a labor spy. Our view is strengthened by a study of the correspondence between the respondent and the N. M. T. A., part of which is in evidence. Much of this correspondence deals entirely with the question of labor relations. It reveals that the respondent requested and received 350 copies of "Some Questions and Answers Concerning the Wagner Act," and that these pamphlets were posted and distributed through out the respondent's plants. These "Questions and Answers" are wholly misleading, confining themselves almost entirely to stating the rights of the employer left unaffected by the Act, without adequately or accurately listing the rights which the Act guarantees to employ- ees. We have condemned the distribution of similar literature by employers as violative of the Act.1° Significantly, none of the cor- respondence relates to time-study or piece-work dissatisfaction, in- vestigation of which is supposed to have been the purpose of the respondent in hiring Cousland through the N. M. T. A. On the contrary, there is a clear indication that the principal bond between the respondent and the N. M. T. A. was that of anti-union policy and we believe that Cousland served that policy. At the hearing before the Board in Washington the respondent insisted, in support of its contention that Cousland was not a labor 0 Appointed pursuant to S Res. 266, 74th Congress. 1s See Matter of Mansfield Mills, Inc and Textile Workers Organizing Committee, 3 N. L. R. B. 901; Matter of Nebel Knitting Company, Inc and American Federation of Hosiery Workers, 6 N. L. R . B. 284, aff'd in National Labor Relations Board v. Nebel Knitting Committee (C. C. A. 4th, April 28, 1939), 103 F. ( 2d) 594. LINK BELT COMPANY 869 spy, that there is no evidence showing that the respondent ever acted against any labor organization as a result of anything Cousland may have reported. We are not convinced that this is so. Cousland joined the Amalgamated, but had been forced to resign in May 1937, when his role as an under-cover agent was made public by the Senate subcommittee on civil liberties. There is ample evidence of anti- union activity by respondent prior to the unmasking of Cousland by the Senate subcommittee. Moreover, the record reveals that Cous- land, prior to his resignation, became active as a committee member of the Amalgamated. It is well known that labor spies commonly join labor unions either to report on their activities or for the pur- poses of sabotage. Despite the fact that Cousland ceased writing his reports to the N. M. T. A. in October 1936, we do not believe that his relationship to respondent as a labor spy terminated until ex- posure in March 1937 ended his usefulness. We find that the respondent and the N. M. T. A. utilized Cousland for the purposes, among others, of espionage to ascertain and inter- fere with attempts at self-organization on the part of its employees, and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The discharges Louis Salmons and Joseph E. Novak. Louis Salmons has been an electrician at the respondent's plant for 14 years. He was a member of the employees' board under the Plan and became dissatisfied with it because of its ineffectiveness in representing the employees. About September 1, 1936, Salmons went to the S. W. O. C. headquarters in Chicago, talked to Van A. Bittner, regional organizer, and asked for aid in organizing the employees of • the 39th Street plant. Bittner agreed to help Salmons and, as an initial step, sent Salmons 50 application cards for membership in the S. W. O. C. About the middle of September, Salmons started to organize by talking to vari- ous individuals and by distributing the application cards. Salmons signed, as the organizer, all the application cards which he dis- tributed, despite his fear that respondent might discriminate against him. He felt that his name would be more helpful in encouraging the employees to join than if someone at the S. W. O. C. headquarters had signed the cards. On Sunday, September 20, 1936, Salmons called the organizing meeting of the Amalgamated. At this meeting, Salmons told those who attended that he would probably be discharged since some of the cards bearing his name were left lying around the plant and would doubtless be turned over to the respondent's officials, but he urged the 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD others to keep the organization going, and stated that he would keep active outside the plant. The next day, September 21, Salmons was told by his foreman, Forss, that Berry, the assistant general manager, wanted to see him. Salmons went into Berry's office, and Berry, in the presence of the production superintendent, Conroy, discharged him. Berry accused Salmons of spreading "union propaganda" and gave him half an hour to leave the plant. Salmons protested that his discharge would be a violation of the Act, but Berry declined to discuss the matter further. Salmons thereupon left Berry's office and went to the toolroom where he met his foreman, Forss, informing him of the discharge. Forss said that he had thought that that was the case and later while Salmons was in the washroom, Forss said, referring to union activity, that he "didn't know this was going on," that he "didn't believe it." Salmons, attempting to magnify the strength of the S. W. O. C., assured Forss that 370 employees had signed application cards; actually there had been only 11. Salmons thereupon left the plant. The same day and under almost identical circumstances, Joseph E. Novak was discharged. Novak has been employed by the re- spondent for over 11 years and at the time of his discharge was working in the crane department. On September 21, 1936, Novak was told by an assistant foreman, Sellars, that Berry wanted to see him. When Novak came into his office, Berry accused him of being an organizer and instigator of a union. Novak professed surprise at the accusation and hotly denied that he had helped organize any union. Thereupon he was given 30 minutes to leave -the plant. The day after his discharge, Salmons filed charges with the Regional Director of the Board. Approximately 2 weeks later Novak for the first time learned that Salmons had also been discharged and, after talking to Salmons, Novak also conferred with the Regional Director. Thereafter, Field Examiner Disser and Regional Director Beman, of the Board, held conferences with Berry, and subsequently Salmons and Novak requested Berry to rehire them. On December 21, 1936, Berry reengaged Salmons upon the condition that Salmons would not engage in union activities on company time. Novak, who applied for reinstatement a week or so after Salmons, refused at first to accede to such a condition on the grounds that it would be a tacit admission that he had engaged in union activity. However, he finally accepted the condition and was reinstated in January 1937. There is a conflict in the testimony as to whether Berry insisted that both men promise not to engage in union activity at all whether on their own or company time. We do not feel it necessary to resolve this conflict, but the record discloses that Novak understood that Berry's LINK BELT COMPANY 871 injunction against unions extended to activity away from work and as a result did not join the Amalgamated until after the Act was upheld in April 1937. Salmons was not reinstated to his old job as maintenance electri- cian but was given a position in the electrical department. He was thus confined to a bench and no longer allowed to work throughout the plant. Furthermore, he worked fewer hours, inasmuch as the maintenance job he formerly held entailed considerable overtime. The complaint alleges that by reinstating Salmons to a bench job the respondent further discriminated against him because of union activities. The respondent justifies both discharges on the grounds that Sal- mons and Novak each spent so much time organizing that they were unable to do their own work. In so far as Novak is concerned, this contention is untenable. There is no substantial evidence that Novak engaged in any union activity whatsoever. On the contrary, it appears that he was not a member of the Amalgamated at the time of his discharge, and was ignorant that the Amalgamated was organiz- ing. Berry testified that one of his foremen reported to him that he had observed Novak passing out cards. This foreman was not called to testify and we do not believe that his alleged report to Berry was accurate. Assuming it to be true, however, we do not believe that Berry would, without investigation or warning, have summarily dis- charged Novak for distributing cards. We find that Novak was discharged because the respondent mistakenly believed that he had joined and assisted the Amalgamated and had engaged in concerted activities with other employees in the plant for the purpose of collec- tive bargaining and other mutual aid and protection. The respond- ent's mistake of fact as to Novak's affiliation and activity does not render its discharge of Novak the less an unfair labor practice. The discharge of Novak was an act of discrimination which tended to discourage membership in the Amalgamated, despite the fact that Novak was not himself a member." Nor does the record sustain the respondent's contention that its discharge of Salmons was proper because his union activity inter- fered with his work. At the time of Salmons' discharge the respond- ent had no rule which forbade solicitation of membership in a union. Nor did Salmons' efforts interfere with his work, and his immediate superior, Forss, was unaware that he was engaging in such activity. Salmons was never warned or reprimanded for his solicitation. It is significant that no members of the Independent were ever dis- charged for their activity, although the record reveals that several u Cf. National Labor Relations Boar] v Biles-Coleman Lumber Co, 98 .P (2c1) 18 (1938), 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees were much more active in solicitation for it than was Salmons for the Amalgamated. We are convinced that Salmons' activity on behalf of the Amalgamated and not any impairment of his efficiency was the real reason for his discharge. Accordingly, we find that Salmons was discharged because of his membership in the S. W. O. C. and his activity on its behalf. At the hearing the respondent contended that Salmons had been rehired as a result of mediation by, and under an agreement with Regional Director Beman and Field Examiner Disser. The Trial Examiner excluded testimony relating to such agreement and refused subpenas for Beman and Disser. Thereupon respondent offered to prove that the Regional Office took under consideration the dis- charges of Salmons, Novak, and one Sorenson, whose case is dis- cussed below, that the respondent was requested to reemploy Salmons, that no such request was made on behalf of Novak or Sorenson, and that it was agreed that Salmons would be rehired for a standard workweek without back pay. The offer of proof was refused. We believe that to the extent that the offer related to an agreement allegedly made by agents of the Board the testimony should have been admitted.12 To that extent we shall treat the offer as proved. Accordingly, we shall not order back pay for Salmons de- spite his discriminatory discharge, nor will we consider the conten- tion that his reinstatement to a position other than that which he held before his discharge was discriminatory. Since the offer of proof did not allege that a similar agreement had been made with respect to Novak, who was discriminatorily discharged, our order relating to Novak will not be affected thereby. Novak was earning 59 cents an hour for a 54-hour week at the time of his discharge. Before his reinstatement he earned from $75 to $100 at the Globe Manufacturing Company. Novak is a musician and during the period following his discharge worked a few nights in that capacity. It appears, however, that he enjoyed this independent source of income to the same extent while employed by the respondent. Therefore, his income earned as a musician will be excluded in com- puting the amount of his net earnings to be deducted from the back pay which we shall order the respondent to pay to him. Nels Carl Sorenson was a janitor at the time of his discharge on October 1, 1936, having been employed in that capacity for about 3 years. Sorenson was one of the few who had joined the Amalgamated prior to the discharge of Salmons. He was not, however, particularly active in it. 12 Matter of Shenandoah-Dives Mining Company and International Union of Mine, Mill C Smelter Workers, Local No 25, 11 N. T. R B 885; Matter of Godchaux Sugars, Inc and Sugar Mill Workers,' Union Locals No . 21177 and No. 21188, affiliated with the American Federation of Labor, 12 N. L. R. B. 568 LINK BELT COMPANY 873 Prior to assuming the duties of a janitor, he had been employed in other capacities by respondent, first as a machinist's helper and later as a steamfitter's helper. Sorenson testified that on the morning of his discharge he was cleaning the lights on the back stairway of the main office and that Berry came down the stairs and engaged him in conversation. According to his testimony, Berry told him that he had "a nice red ladder," adding that he would not be on the ladder long. Sorenson testified that he was puzzled by this remark, but went into the shop and saw his foreman, Forss, and Forss told him that he was discharged. Forss added, according to Sorenson, that the reason for his discharge was that he had been helping Louis Salmons organize a union. Sorenson was told by Forss to get out of the plant by 11 o'clock that morning. The reasons advanced by Berry and Forss for Sorenson's discharge differ materially from those given by him. Berry denied at the hear- ing that he had engaged in the conversation about the ladder related by Sorenson. He testified further that Sorenson had been a dis- turber and that he had received a number of complaints to the effect that Sorenson habitually quarreled with other employees. Berry stated that on the day of his discharge he noticed Sorenson engaged in a rather violent altercation with four or five employees in the foundry, and upon observing this he went to his office and phoned Forss to discharge him. Forss corroborated Berry's testimony that Sorenson was argumentative and difficult to get along with, although he admitted that he was a good worker. When he received the phone call from Berry, Forss went in search of Sorenson. He met Sorenson coming out of the foundry and asked him what he had been doing. Sorenson replied that he had been greasing certain equipment in the foundry. Since he did not have his grease gun with him, Forss told Sorenson that he must have been loafing and forthwith Forss dis- charged him. At the hearing, Forss denied that he had mentioned Salmons or that he had ever told Sorenson that the discharge was due to union activity. After his discharge Sorenson sought out Salmons, who suggested that Sorenson go down to the office of the Regional Director. In January Sorenson requested Berry, to rehire him, and after two inter- views Berry refused to do so. Since Sorenson admitted having some difficulties with other em- ployees, we believe that the respondent's version as to the reasons for his discharge. Accordingly, we find that the respondent did not discharge Sorenson because he had joined or assisted the Amalgamated. Mike Karbel and Nick Cumarich. Karbel worked for the re- spondent from 1925 until 1932, when he was laid off. He returned to work early in March 1937. Cumorich was hired for the first time in December 1936. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 2 months before their discharge, Karbel and Cumorich both were transferred to the night shift in the steel-cleaning room, Karbel as a chipper, and Cumorich, who had been hired as a chipper, as a common laborer. On May 19, 1937, Belov, who, as we have pointed out above, was the night foreman supervising 15 or 20 men, told both men that they were discharged, and paid them off in cash. At this time, in response to their questioning, Belov told them that each was a good workman and that he did not know the reason for the dis- charge. Belov was not called at the hearing, and so we accept the uncontradicted testimony of Karbel and Cumorich as to Belov's activities. It was an unusual thing for men discharged from the night shift to be paid in cash by Belov. Customarily, they were paid off by the day foreman, McKinney, who had ultimate authority over all employees in the steel-cleaning room, including the night shift. As we have already indicated, Belov upon instructions from McKinney had solicited membership for the Independent among the night shift. Both Karbel and Cumorich had refused his solicitation. Late in April they had joined the Amalgamated. The respondent contends that Karbel and Cumorich were dis- charged for inefficiency. McKinney testified that he had received complaints that costs in the department were rising, and he investi- gated to determine the reason. According to his testimony, he ob- served that neither Karbel nor Cumorich was doing a satisfactory job, and he warned them several times. Furthermore, he instructed one Peters, of the time-study department, to make a check on their labor cards to determine their relative efficiency. Chippers and grinders are paid by the respondent on a piece-work basis, with a minimum hourly guarantee. The time-study depart- ment establishes a piece-work rate and also a certain period of time for each operation. If the employee finishes a job in a shorter period, he is paid a bonus. Peters testified that, as instructed by McKinney, he made the time study. According to his testimony, his study revealed that over a period of 6 to 8 weeks, Karbel exceeded the time allowed on jobs he worked by 37 per cent, with a consequent loss to the respondent, and that the hourly guaranteed minimum which he was paid exceeded the piece-work rate which had been set by 96 per cent. Five other chippers, selected at random, during approximately the same period, unlike Karbel, showed substantial gains. Cumorich, according to Peters, exceeded the allowed time by 47 per cent, and his guaranteed rate exceeded the piece-work rate by 73 per cent. Cumorich was not compared with any of the other employees for the reason that there were none doing comparable work. The accuracy of the time studies made by Peters is open to con- siderable doubt. He admitted that Cumorich. although hired as a LINK BELT COMPANY 875 chipper, was engaged principally as a laborer, shoveling sand, cutting up scrap and doing other jobs around the steel foundry. Cumorich rarely worked on piece work, since laborers are paid on an hourly basis. As a result, an efficiency rating based entirely upon Cumo- rich's capacity on piece work, would not be a true test of his relative capability. We believe, moreover, that Peters' time studies are open to a much more serious objection, in that they are based upon a number of indeterminate factors never clearly demonstrated in the record and they completely overlook the differing physical circumstances sur- rounding each job. Each casting, for example, is assigned by the foreman to a particular workman for cleaning. It would be entirely possible for the foreman habitually to assign the dirtiest castings to one particular chipper. Furthermore, conditions on the night shift differed from those in the daytime. Yet, in compiling his tune-study comparison of Karbel's work with that of others. Peters admitted that none of the other five so chosen worked on the night shift. The hourly rate of these five employees was different, in most cases higher than that of Karbel. In all cases, the work of the men was some- what dissimilar, different piece prices on each job had been estab- lished, and the total time allotted varied from individual to indi- vidual. Under these circumstances, we do not believe that the time studies reflect with any degree of precision the relative efficiency of Karbel or Cumorich. These physical differences surrounding each job were admitted at the hearing, and we do not believe that respond- ent discharged either man because of anything disclosed by Peters' time study. Both Karbel and Cumorich testified that they were never warned about the quality of their work. McKinney testified that he made frequent trips to the night shift and on several occasions warned these men that their work was unsatisfactory. McKinney's credibility as a witness, as pointed out above, is questionable. We do not believe that McKinney ever specifically warned either man. Each testified that he had never observed McKinney in the foundry at night, and we find that neither Karbel nor Cumorich was ever warned that his work was unsatisfactory by McKinney or any other supervisor. We conclude that the real reason for the discharge in both cases was the fact that Karbel and Cumorich had joined the Amalgamated. Each had refused to sign the application sheet when approached by Belov during the Independent's organization campaign in the middle of April 1937. A short time later, both joined the Amalgamated. Almost immediately a time study was instigated directed solely to their work and within a period of 3 weeks or so both were discharged, without warning. Belov, the immediate superior of both, professed ignorance of the reason for discharge, asserting his belief that they 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were good workmen. An unusual procedure of giving them their dis- missal pay was adopted, a procedure which prevented either from fac- ing McKinney or the workers on the day shift. Under these circum- stances, we reject the respondent's contention as to the reason for their discharge. We find that by discharging Mike Karbel and Nick Cumorich, the respondent discriminated in regard to their hire and tenure of employ- ment, thereby discouraging membership in the Amalgamated. Karbel and Cumorich both desire reinstatement to their former positions. At the time of discharge Karbel's earnings averaged $26 to $28 a week, and Cumorich earned 48 cents an hour for a 45-hour week. Karbel was unemployed from the date of his discharge until the date of the hearing and had no earnings during this period. Cumorich obtained employment at Karpen Brothers Furniture Com- pany on June 17, 1937. He earned $436 until January 1, 1938, and $126.19 from that date until the time of the hearing. Paul Bozuriclz was employed by the respondent as a moulder from April 22, 1936, until his lay-off on November 9, 1937. The record reveals that because of curtailed production a number of lay-offs were necessitated in the fall of 1937 and spring of 1938. Bozurich is a highly skilled workman, having received several raises during his period of employment, and there is no question as to his competency. He was very active in the Amalgamated , joining in March 1937 and helping to solicit members. Bozurich attended the first meeting of the Independent on April 22, 1937, but was ejected when he persisted in questioning Wham and Litster as to certain as- pects of the Independent's constitution and as to the implications of its membership application cards. Bozurich was denied admission to the Independent's second meeting by a Chicago policeman who was guard- ing the door. He was also one of the leaders of the employees who opposed the Independent, and forcibly brought his viewpoint to the respondent's attention, not only by his aggressiveness at the first meet- ing of the Independent, but also subsequently in conversations with supervisory officials. There are a number of different types of iron moulding carried on in the respondent's foundry. The largest castings are made by the floor moulders who work on what is called the "iron floor" or "grey iron floor." The floor moulders are generally the most skilled mould- ers, since this type of work is considered more difficult than the others. Furthermore, since the cost of recasting an imperfect cast increases proportionately with its size, the floor moulders, being most skilled, generally pour the larger castings. The respondent also employs bench, sprocket, and squeezer moulders who work, respectively, on the bench, sprocket, and squeezer floors. LINK BELT COMPANY 877 Bozurich, who has been a moulder for 22 years, was hired as a floor moulder and started to work on the south end of the "iron floor." After a few months in this location he was given an assign- ment which required more room and in January 1937 he was shifted to the sprocket floor. Despite this shift, however, he continued to do the same type of work under the same foreman. A few months before his lay-off he was shifted back to the "iron floor." Bozurich testified that before he was moved to the sprocket floor he was senior to several moulders on the iron floor, but when he returned all but one of the men junior to him had been moved to one of the other floors. The effect of the shifting, according to him, was to destroy his seniority rights. The record discloses, however, that the men with less seniority who had been transferred from the "iron floor" had been laborers there, and were transferred to other floors in order that they might learn to be moulders . It also appears that the only moulder on the "iron floor" junior to Bozurich was laid off the same day, although he was subsequently rehired as a laborer. On the entire record we feel that the evidence does not support a finding that Bozurich lost his seniority on the "iron floor" by virtue of discrimina- tory shifting of employees from that floor to other floors. Bozurich also testified that the respondent discriminated against him in the lay-offs in that it regarded each floor as a department for the purposes of determining seniority. He stated that foundries habitually adopted one of two courses in the event that lay-offs became necessary. They would either retain their best moulders, laying off the less competent men and disregarding seniority, or else they would follow strictly a seniority policy for the entire foundry, without dif- ferentiating between the various floors. If either course had been followed, Bozurich would have been retained . Under the first alter- native the bench, sprocket , and squeezer moulders, being less skilled, would be laid off before the floor moulders. Under the second, Bozurich would likewise have been kept inasmuch as several mould- ers on the other floors who were not laid off were junior to him. The respondent's seniority plan came about as the result of bargain- ing between the Independent and the respondent. No contract was ever concluded between the two, however, and the seniority rules are contained in a statement of policy issued and posted by the respond- ent. The policy promulgated by the respondent is not detailed, in so far as seniority is concerned , but is simply a general statement that when lay-offs are necessary "senior employees shall be retained with . . . consideration for practicability and ability." In applying seniority principles in the foundry, respondent treated each floor as a separate department , and did not establish seniority on the basis of the entire iron foundry. Consequently, there were separate sen- iority lists for each type of moulder . Despite Bozurich's claim that 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he should have been retained over the less skilled moulders on the other floors, particularly those who were junior to him, the record does not sustain the contention that the method of foundry lay-offs adopted by the respondent was inconsistent with its stated seniority principles or was chosen to discriminate against him because of his union activity. We find that respondent did not discriminate against Bozurich because of his union activity. John Kalamarie was first hired by the respondent November 11, 1935. He was laid off November 30, 1937. Kalamarie started as a laborer, but early in 1936 began to work as a burner in the steel- cleaning or "chipping" room. A burner works on the castings with an acetylene torch, cutting off metallic imperfections, and occasionally cuts scrap metal to facilitate remelting. From December 1936 to May 1937, Kalamarie worked on the night shift. It was during this period, as pointed out above, that he observed Belov's activities in behalf of the Independent and refused to join when solicited. From May until October 1937, Kalamarie worked on the day shift, being transferred in August 1937, from the position of burner to that of are welder. While learning- his new duties as an are welder, he was shifted again in October 1937 to the night shift. He was working as an arc welder on the night shift at the time he was laid off, November 30, 1937. Kalamarie complains that his lay-off was out of order of seniority in the steel-cleaning room and was motivated by a desire to discrimi- nate against him because of union activity. There is no question that Kalamarie was active in the Amalgamated. He joined in March 1937, and subsequently solicited a number of new members. At the time Bozurich was laid off, the Amalgamated grievance committee called on Berry. Kalamarie was one of this committee. Immedi- ately afterwards, Morely, the day foreman, sent a note to Belov who was the night foreman, informing him to supervise Kalamarie more closely and if his work was not found up to standard to lay him off for a week. Shortly afterwards he was permanently laid off for lack of work. The respondent contends that this lay-off was necessitated by a business slump, and that Kalamarie had less seniority than the other welders. It appears that the respondent employed four welders in the steel-cleaning room; two, including Kalamarie, were are welders, and the other two were combination welders, that is, they were quali- fied to work either as are welders or gas welders. Kalamarie and the other are welders were laid off the same day; one combination welder was retained until January 5, 1938, the other was working at the time of the hearing. Since a combination welder is a more highly skilled worker than an are welder, the respondent contends LINK BELT COMPANY 879 that it was justified in dismissing Kalamarie who was less versatile, rather than an employee who had the ability to do both types of welding. Conceding the cogency of this argument, it does not answer Kala- marie's contention that he should have been allowed to transfer back to his old job as a burner when he was no longer needed as a welder, since he had seniority over Thiele, a burner, Kouna, a laborer who worked as a burner, and Melcoskey, who was listed on the pay roll as h "chipper," although he worked occasionally as a burner. It was admitted at the hearing that Kalamarie could have done the work that Kouna and Melcoskey were doing, and that Thiele, a burner, was engaged in a capacity identical to that formerly held by Kalamarie. The record discloses that there was considerable interchange- ability of workers within the steel-cleaning room, chippers would act as burners, burners as laborers, depending on the amount of work available. The case of Thiele who started as a welder and later became a burner is illustrative of the shifting of employees from one capacity to another. It would appear, therefore, that if a seniority policy for the whole room had been applied, considering the feasi- bility of transfer, Kalamarie would have been retained in preference to Thiele, Kouna, or Melcoskey. The respondent contends that Kalamarie gave up his seniority rights in the steel-cleaning room when he became a welder. Kala- marie testified that he would not have taken the welder's job if he had known he would thereby forfeit his seniority. In support of this testimony, the record discloses that Kalamarie vigorously protested that his lay-off was against seniority rules. Furthermore, he was the only employee in either the steel or iron foundry hired in 1935 who was laid off prior to the hearing. All other employees who were laid off were hired either in 1936 or 1937. It is significant that Kala- marie was placed under stricter supervision immediately following the visit of the grievance committee to Berry, although there was no serious contention that he was not a satisfactory worker. His pro- motion to the welder's job indicates that he was considered competent. Upon the entire record, we are convinced that the ostensible lay-off of Kalamarie was actually a discharge because of his union activity. We find that the respondent discharged John Kalamarie because of his union membership and activities and that the respondent there- by discriminated against him in regard to tenure of employment. Kalamarie seeks reinstatement. At the time he was laid off, he was earning 69 cents an hour for a 40-hour week. Kalamarie was un- employed until January 23, 1938, when he obtained a job with the Works Progress Administration in which he had earned $93 at the time of the hearing. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stanley Balcauski was a core maker who was hired May 4, 1936, and laid off November 17, 1937. He was the shop steward for the Amalgamated in the core room , and as such wore a readily identifi- able badge. Balcauski, shortly before his lay-off, engaged in an altercation with Skeates, the superintendent of the foundry, about collecting dues on company time. Skeates warned Balcauski about such collections, and Balcauski protested that the Independent was allowed to do what he was prohibiting for the Amalgamated. There- upon, Skeates assured him that neither organization could make such collections. Balcauski insists that his lay-off was not in accordance with senior- ity, in that men junior to him were retained. The record reveals, however, that the only employee in the core room with less seniority who was retained was an apprentice named Parker. The respondent has consistently found employment for apprentices and has not ap- plied the seniority principle to them. We find that Balcauski was laid off in turn and that the respondent did not thereby discriminate against him for his union activity. Harry Johnson worked for the respondent in 1929 and 1930 as a boring-mill operator in the machine shop. He was laid off sometime in 1930 and was rehired in September 1935. He was subsequently laid off a second time in December 1937 , while working on the night shift. Johnson joined the Amalgamated in January 1937 and, with his brother, Fred, was very active in behalf of this organization. He circulated application cards and urged the employees in the machine shop to sign them. Johnson contends that he was laid off out of order of seniority because of his union activities. It appears that Johnson had senior- ity in the machine shop over three employees who were retained. Two of these three, however, had served with the respondent in other departments longer than Johnson, although they transferred to the machine shop after him. The respondent contends that these two, Panos and McCafferty, were more versatile operators, being able to work on both the large and the small milling machines, and under the seniority policy were legitimately retained. We believe that the record substantiates this contention. The other person junior to Johnson, one Behounek, was injured while employed by the respond- ent, losing the sight in one of his eyes. The record discloses that the respondent customarily retains injured employees whenever possible. Under these circumstances , although we are not entirely free from doubt, we do not find that Johnson's lay-off was motivated by a desire to discriminate against him because of union activity. Peter Solinko and Frank Solinko. In our discussion of the respondent's activities in behalf of the Independent, we pointed out LINK BELT COMPANY 881 that the employment manager, Staskey, after attempting to learn the strength of the Amalgamated, instructed Peter Solinko to see Kovatch and to join the Independent, indicating that the employment of his son, Frank, would be conditioned upon his so joining. We find that by this action respondent discriminated in regard to the terms and conditions of employment of Peter Solinko and the hire of Frank Solinko, thereby encouraging membership in the Inde- pendent and discouraging membership in the Amalgamated. We find that by discharging Salmons and Novak, and by discharg- ing and refusing to reemploy Karbel, Cumorich, and Kalamarie, the respondent has discriminated in regard to the hire and tenure of employment of each of them, thereby discouraging membership in the Amalgamated. We find further that by its acts of discrimination respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IF. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist from further engaging in such practices. Moreover, we shall order the respond- ent to take certain affirmative action which we deem necessary to effectuate the policies of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the Independent and has contributed support to it. The respondent's acts render the Inde- pendent incapable of serving the respondent's employees as a genuine bargaining representative and render its continued recognition by the respondent an obstacle to collective bargaining through freely chosen representatives. We shall, accordingly, order the respondent to with- draw all recognition from the Independent, and to disestablish it as a representative of the employees of the 39th Street plant for the purposes of collective bargaining. We have found that Louis Salmons and Joseph E. Novak were dis- criminatorily discharged and subsequently rehired. We shall order 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent to make Joseph E. Novak whole for any loss of pay he may have suffered by reason of his discharge by payment to him of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of his reinstate- ment, less his net earnings 18 during said period, but not deducting any sums he may have earned while engaged as a musician. For the reasons above stated,14 we shall not order back pay for Louis Salmons. We have found that John Kalamarie, Mike Karbel, and Nick Cumorich were also discriminatorily discharged. Accordingly, we shall order the respondent to offer them reinstatement without prejudice to their seniority and other rights and privileges. We shall further order the respondent to make John Kalamarie, Mike Karbel, and Nick Cumorich whole for any loss of pay they may have suffered by reason of their discharge by payment to each of them of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of rein- statement, less his net earnings during said period. We have found that the lay-offs of Paul Bozurich, Harry John- son, and Stanley Balcauski were temporary, occasioned by a decrease in business and available work in the plant, and therefore we will not order their reinstatement. However, in view of the respondent's unfair labor practices as set forth in Section III above, there is grave danger that the respondent will not reemploy these three individuals even if their former or substantially equivalent positions are open. Respondent produced at the hearing seniority lists by classification, which contained the names of employees then working and those who at that time had been laid off. In order to effectuate the policies of the Act, we will require the respondent to include Paul Bozurich, Harry Johnson, and Stanley Balcauski, for whom work was not available at the time of the hearing, in its seniority list by classifica- tion, and refrain from discrimination against them in the event em- ployment should become available for them under its usual seniority rules.15 1313y "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 unlaw- ful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Aineisea, 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 othei government or governments which supplied the funds foi said work -relief piojects ''' Section III, D supra. 'd See Matter of American Nuinberu,y Machine Company and Inte, national Association of Machinists D,st,ict #i5, 10 N L R B 530, and the cases there cited LINK BELT COMPANY 883 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Lodge 1604 of Amalgamated Association of Iron, Steel and Tin Workers of North America and Independent Union of Crafts- men are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and admin- istration of Independent Union of Craftsmen, and contributing sup- port to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to hire and tenure of employment of Louis Salmons, Joseph E. Novak, John Kalamarie, Mike Karbel, and Nick Cumorich, and thereby discouraging membership in Lodge 1604 of Amalgamated Association of Iron, Steel and Tin Workers of North America, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. By discriminating in regard to the terms and conditions of em- ployment of Peter Solinko, and the hire of Frank Solinko, and there- by discouraging membership in Lodge 1604 of Amalgamated Asso- ciation of Iron, Steel and Tin Workers of North America, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 7. By discharging Nels Carl Sorenson and laying off Paul Bozu- rich, Harry Johnson, and Stanley Balcauski, the respondent has not engaged in unfair labor practices, 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, Link Belt Company, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : 169134-39-vol. 12-57 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Dominating or interfering with the administration of Inde- pendent Union of Craftsmen, or the formation or administration of any other labor organization of its employees, or contributing sup- port to Independent Union of Craftsmen, or any other labor organi- zation of its employees; (b) Discouraging membership in Lodge 1604 of Amalgamated Association of Iron, Steel and Tin Workers of North America, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment or any terms or conditions of their employment; (c) Either directly or indirectly, engaging in any manner of espio- nage or surveillance, or engaging the service of any agency or indi- viduals for the purposes of espionage or surveillance, upon its em- ployees or upon any labor organization of its employees; (d) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of the right to self-organization. to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from Independent Union of Crafts- men as representative of any of its employees at the 39th Street plant for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish Independent Union of Craftsmen as such representative; (b) Make whole Joseph E. Novak for any loss of pay he may have suffered by reason of the respondent's discrimination in regard to his hire and tenure of employment, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of his reinstatement, less his net earnings, other than earnings as a musician, during said period; de- ducting, however, from the amount otherwise due to him, monies received by him 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) Offer to John Kalamarie, Mike Karbel, and Nick Cumorich immediate and full reinstatement to their former positions, without prejudice to their seniority and other rights and privileges; LINK BELT COMPANY 885 (d) Make whole John Kalamarie, Mike Barbel, and Nick Cumorich for any loss of pay they 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, a sum of money equal to that which he would normally have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during said period; deducting, however, from the amount otherwise due to each of said employees, monies received by said employees 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 Fed- eral, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (e) Include Paul Bozurich, Harry Johnson, and Stanley Balcauski in the seniority list by classification which it maintains for all em- ployees who were non-discriminatorily laid off, and refrain from dis- criminating against Paul Bozurich, Harry Johnson, and Stanley Balcauski, when in accordance with its usual seniority rules, employ- ment becomes available for any or all of them; (f) Post immediately notices in conspicuous places throughout the 39th Street plant, stating: (1) that the respondent will cease and desist as provided in paragraphs 1 (a), (b), (c), and (d) of this Order; and (2) that the respondent will take the affirmative action provided for in paragraphs 2 (a), (b), (c), (d), and (e) of this Order; (g) Maintain such notices for a period of at least sixty (60) con- secutive days from the date of posting; (h) Notify the Regional Director for the Thirteenth 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 FURTmmn oi:DERED that the allegations of the complaint that the respondent has engaged in unfair labor practices within the mean- ing of Section 8 (3) of the Act by discharging Nels Carl Sorenson and by laying off Paul Bozurich, Harry Johnson, and Stanley Balcauski be, and they hereby are, dismissed.