Auburn Foundry, Inc.

In the Matter of AUBURN FOUNDRY, INC. and LODGE 1998 of AMAL- GAMATED ASSOCIATION OF IRON, STEEL AND TIN WORKERS OF NORTH AMERICA, THROUGH THE STEEL WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION Cases Nos. C-9° and R-810.-Decided August 31, 1939 Poandry Zir^sinc..9-Intofencece, Restrahit, and Coercion: anti-union state- ments made by supervisory employees; threats to close plant rather than deal with outside union ; threats to discharge members of outside union ; disparage- ment of union oflibials ; surveillance ; distributing literature misrepresenting terms and purposes of the Act to employees-Company-Dominated Union: employees engaged in organizational activities of company -dominated union on company property during working hours given great latitude ; supervisory employees made statements favoring and solicited members for ; recognition as exclusive representative of employees ; coercion to join ; ordered , disestablished- Contract: recognizing dominated union as sole bargaining agent, abrogated- Diserinrainur,ti.on: discharge and lay-off, to discourage membership in outside union, . aud because of union membership and activity ; charges of, sustained as to two employees, disnnisGed. as to one employee-Reinstatement: ordered- Bachk Pay: awarded-Fna;esti.^atia^• of Representatives: controversy concerning representation of employees : refusal to bargain with outside union ; con- troversy concerning appropriate unit-Unit Appropriate for Collective Bargai.n- ivg: production and maintenance employees, exclusive of supervisory and office employees, engineers , draftsmen , truck drivers , timekeepers, and watchmen ; stipulation as to ; dispute as to three employees-Election Ordered: to take place at such time as the Board shall hereafter direct; company-dominated union excluded from ballot. Mr. Herbert H. Shenkin, for the Board. Mr. Dan M. Link, of Auburn, Ind., for the respondent. Mr. W. W. Ketchum and Mr. W. D. Stump, of Auburn, Ind., for the Association. Mr. William Strong, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon charges and amended charges duly filed by Lodge 1998 of Amalgamated Association of Iron, Steel and Tin Workers of North 1.4 N. L. R. B., No. 103. 1219 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America, herein called the Amalgamated, the National Labor Rela- tions..Board, herein called the Board, by the Regional Director-for the Thirteenth Region (Chicago, Illinois), issued its complaint dated March 28, 1938, against Auburn Foundry, Inc., herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning-of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National 'Labor Relations Act, 49 Stat. 449, herein called the Act. The. complaint alleged in substance that the respondent (1) discouraged membership in the Amalgamated by discharging Robert Livergood, and laying off Arthur Miller, employees of the respond- ent, for the reason that they joined and assisted the Amalgamated, and engaged in concerted activities with other employees of the respondent for purposes of collective bargaining and other mutual aid and protection;' (2) instigated the formation of the DeKalb Iron Workers Association, Inc., a labor organization, herein called the Association, fostered, promoted, and encouraged its growth, and dominated, supported, and interfered with its administration; (3) refused to recognize and refused to bargain with the Amalgamated as the exclusive representative of the employees of the respondent within an appropriate unit, although the majority of such employees had designated the Amalgamated as their bargaining agent; and (4) by the foregoing acts and refusals and by other enumerated acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and upon the Amalgamated. The respondent filed an answer, admitting the allegations in the com- plaint as to the interstate aspects of its business, and denying all the allegations of unfair labor practices. Pursuant to notice, a hearing was-'held on April 7, 8, 11, 12, 13, 14, and 15,, 1938, at Auburn, Indiana, before Martin Raphael, 'the Trial Examiner duly designated by 'the `Board. At the beginning of the hearing, the Association moved to intervene. The motion was granted by the Trial Examiner. The Board, the Association, and the respondent were represented by counsel and participated in the hearing. During the hearing, all parties stipulated that the allegation in the complaint of refusal to bargain collectively should be dismissed without prejudice, and that, instead, the Amalgamated would file a petition for investigation and certification of representatives. 1 At the hearing, the complaint was amended to include allegations pertaining to re- spondent's refusal to reemploy Wayne Nichols, in violation of the provisions of t..e Act. AUBURN FOUNDRY, INCORPORATED 1221 Accordingly,, on April 8,. 11938, the. Amalgamated filed. with the Regional Director a petition alleging that a question affecting com- merce had arisen concerning the representation of employees of the respondent, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the Act. On April 16, 1938, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Sections 3 and 10 (c) (2), and Article II, Section 37 (b), of National Labor Relations Board Rules' and Regulations-Series 1, as amended, ordered an investigation and a consolidation of the two cases. for purposes of, hearing.2 . At 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. During the course of the hearing, the Trial Examiner made a number of rulings on motions and objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby, affirmed. On September 21, 1938, the Trial Examiner issued his Intermediate Report, wherein he found that the respondent had engaged in and uuass engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3), and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from its unfair labor practices; disestablish and withdraw recognition from the Association; cease giving effect to its contract with the Association; and offer reinstatement with back pay to Robert Livergood and Arthur Miller. He found further that the respond- ent had not engaged in unfair labor practices by refusing to reemploy Wayne Nichols, and recommended the dismissal of the complaint in that regard. On October 15, 1938, the respondent and the Associa- tion filed exceptions to the Intermediate Report, together with briefs in support of their exceptions, and requested oral argument before the Board. Pursuant to notice duly served upon the parties, a hear- ing for the purpose of oral argument was held before the Board, in Washington, D. C., on March 28, 1939. The respondent and the Association were represented by counsel and participated in the argument. The Board has considered the respondent's and the Association's exceptions to the Intermediate Report and the argu- ments in support thereof, and, in so far as the exceptions are incon- sistent with the findings, conclusions, and order below set forth, finds them to be without merit. 2 On May 2, 1938, a second order of consolidation and direction of investigation and hearing was issued by the Board , ordering that the consolidation be made nunc pro tuno as of April 11, 1938, and that one record of the hearing be made. The parties stipulated that this order, together with the stipulation , be admitted as part of the record herein. 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Auburn Foundry, Inc., is an Indiana corporation engaged at its principal office and plant at Auburn, Indiana,, in the general foundry- business and in the manufacture, sale, and distribution of coal stokers and gray-iron castings. During the summer of 1937, it operated an additional plant at Columbia City, Indiana. In 1937 the respondent secured raw material of the value of $309,000, constituting about 67 per cent of all the raw material used by it, from points outside Indiana. During the same year, the respondent sold and distributed to points outside Indiana about $548,000 worth of finished products, constituting more than 51 per cent of its total production. II. THE ORGANIZATIONS INVOLVED Lodge 1998 of Amalgamated Association of Iron, Steel and Tin Workers of North America, is a labor organization, affiliated through the Steel Workers Organizing Committee, a labor organization, with the Committee for Industrial Organization ,3 herein called the C. I. O. It admits to membership production and maintenance employees of the respondent, excluding clerical and supervisory employees, timekeepers, draftsmen, truck drivers, and watchmen. DeKalb Iron Workers Association, Inc., is an unaffiliated labor organization, incorporated ender the laws of Indiana, admitting to membership all employees of the respondent, except clerical and supervisory employees. III. THE UNFAIR LAI3OR PRACTICES A. Interference, restraint, and coercion In the early part of June 1937, the Amalgamated began organ- izing at the plant of the respondent. At the outset, the Amalga- mated had difficulty in securing premises in Auburn, Indiana, in which to hold its meetings, its members being informed by persons from whom they desired to rent that they would not rent to the C. I. O. Meetings were, therefore, held in the nearby town of Garrett, Indiana, until August 26, 1937, when the Amalgamated succeeded in securing quarters at Auburn. The respondent, through its president, Burr Oswald Fink, its officers, foremen, and supervisory officials, engaged in anti-union Now the Congress of Industrial Organizations. AUBURN FOUNDRY, INCORPORATED 1223 activity which impeded the efforts of the Amalgamated to increase its membership. Many employees of the respondent as well as other witnesses tes- tified that since June 1937, on numerous occasions Fink expressed opposition to unions in general and the C. I. O. in particular, stat- ing that he would not tolerate a union in the plant; that the C. I. O. was composed of racketeers, thugs, and radicals;. that he would rather close' liis 'plii,ht than deal with-'the C. I."O.; and that such dealings (with the C. I. 0.) would take place only over his dead body. At the hearing, Fink denied many of the statements charged to him. In view, however, of the argumentative and evasive nature of his denials, in marked contrast to the directness of the witnesses who testified to the statements, we believe, and we accordingly find, that Fink made the statements attributed to him. In June 1937 members of the Amalgamated distributed the "Steel Worker," a newspaper published by the Steel Workers Organizing Committee, among the respondent's employees. Arthur E. Miller, an employee, testified that a meeting of a small group of employees was held in Fink's office, and that Fink told the employees that he did not like the distribution of the "Steel Worker," that he would close the plant rather" than bargain with outsiders and that" he "did not want any sit-down strikes. Fink, testifying, did not recall the meeting and denied having said that he would close the plant rather than deal with outsiders. We find, however, that he made the statements attributed to him substantially as above set forth. Herman A. Brunka, a representative of the Indiana State Division of Labor, testified, and we find, that in. September 1937 Fink said that the respondent would not deal with the Amalgamated or any "outsiders." In his testimony on this point, Fink admitted" that he had probably made statements to the effect that he would rather not deal with the C. I. 0., stating that he has always felt it would be better to close the plant rather than deal with "outsiders." This testimony on Fink's part confirms our conclusion that he actually made the anti-C. I. O. statements attributed to him. Fink admitted on the stand that he secured copies of a bulletin prepared by the National Association of Manufacturers entitled "A Message to Employees . . . Facts About the Wagner Act" and -dis- tiibuted them to the respondent's employees in their pay envelopes. This was the only written information about the Act which was so disseminated by Fink. The emphasis in this bulletin, upon what the provisions of the Act do not purport to do, rather than upon the positive principles and the rights which the Act establishes, serves to distort its true significance and to mislead readers of the bulletin with respect to employees' rights under the Act. We have already 19093.5-40-vol. 14---78 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated that the distribution of this, piece of literature constitutes, a violation of Section 8 (1) of the Act.4 The respondent's officers and foremen, including Mr. Rowan, Roy Hampshire, Don Bushong, Harry Hansel, and George Siegel, also indicated to the employees the respondent's hostility toward the Amalgamated. Rowan, who was superintendent of the plant until his death in January 1938, and Hampshire,. one of the supervisors, on numerous occasions since 1936 separately stated to the employees that labor organizations cause more trouble than they do good; that the C. I. 0. in :particular is no good and consists of reds and radicals; and that they would not wish to remain in the employ of the respondent if a union were successful in establishing itself at the plant. While Hampshire could not recall saying that labor organizations cause more trouble than they do good, he admitted making remarks derogatory to the C. I. 0. and saying that he would not want to continue to work for the respondent if a union were successful at the plant. Benjamin Jones, an employee, testified that in the summer of 1937 Hampshire had told him that the C. I. 0. was "a bunch of reds and radicals," and that anyone joining it would lose his job with the respondent. Hampshire denied making the threat that those joining the C. I. 0. would be discharged. Arthur Miller, an employee, testified that in August 1937, Hampshire told him that all the mem- bers of the C. I. 0. soon would be looking for jobs. Wayne Nichols, a former employee, testified that in August 1937, while still working for the respondent, he was told by Hampshire that anyone favoring any union would not hold his job for 15 minutes. Hampshire denied making these statements. We find that Hampshire made the state- ments attributed to him by Jones, Miller, and Nichols. A meeting was held at the plant in the middle of September 1937 to. discuss charges filed by the employees with the Indiana State Division of Labor that the respondent had discriminated against and intimidated its employees because of their union activities. Brunka, testifying regarding this meeting from his notes, stated that Don Bushong, a foreman, when charged with having discrimi- nated against Albert White and Lloyd White, brothers, in the dis- tribution of work and' by reducing their rates of pay after having threatened to discharge them if they joined the C. I. 0., replied that he did so because the Whites were too active in the Amalga- mated. At the hearing, Bushong denied having made this statement. i See Matter of Mansfield Mills, Inc. and Textile Workers Organizing Committee, 3 N. L. R. B. 901. AUBURN FOUNDRY, INCORPORATED 1225 ,,Otho Greenfield, an employee, testified that in August 1937 Bushong asserted. that he had authority to discharge'" those:-joining, the C., I. O. Bushong denied having made such a statement. We find that Bushong actually made the statements attributed to him. At the hearing, George Siegel, a foreman, admitted that he had warned Sheldon Platter, a member of the Amalgamated, that Fore- men Hampshire and Harry Hansel were watching his activities and work 'and that he should "lay low." Platter testified that after he joined the Amalgamated Hampshire and Hansel watched him con- stantly. The surveillance was justified by the respondent on the ground that Platter used to talk while working. At the very time when Platter was being spied upon, however, Hinsey, another em- ployee, spent practically all of his time talking and organizing on behalf of the Association, and almost no time working, and en- countered no objection or interference by the respondent's officials or foremen. Nichols testified that in 1937 Foreman Siegel said he could not talk to Nichols as the latter was a member of the Amalgamated and that Siegel said that Hampshire was responsible for Siegel's attitude. Siegel testified that he might have said, "I darsn't talk to you. You are a C. I. 0.," but only as a joke. He admitted, however, that Nichols did not appear to consider his remarks as a joke and that the conversation was not accompanied by smiles or laughter. While Siegel denied the statement regarding Hampshire's responsibility, he admitted having discussed unions with Hampshire. We credit Nichols' version of the incident. We find that by the foregoing statements of its supervisory per- sonnel the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The organioatiom of the Association Dale Mavis, Jim Rester, and Elza Shull, employees of the re- spondent and members of the Association, testified that the Asso- ciation ' had its iiiception on 'August 10, 1937, when they, together with Dutch Snyder, another employee, met outside of the plant after working hours and decided to organize an independent union.5 Ray Antrup, who had been employed by the respondent for almost 10'years, testified that Clifford:Hart, then assistant superintendent of the plant, spoke to him on August 10 about the advisability of forming a local union, and asked Antrup to "talk it up." Although 5 Snyder on the other hand testified that on the previous day (August 9) he and the other three had met in the office of Mefford, the foundry manager , to discuss the forma- tion of an independent union, and that although Mefford refused to say anything to aid them and went out of the room, they had remained in the office and had fully discussed the matter. 1226 DECISION'S OF NATIONAL LABOR RELATIONS' BOARD Hart could not recall the exact date upon which this conversa- tion took place, he did admit at the hearing that he had spoken to Antrup "on about what he thought of the C. I. O. and what he thought of the DeKalb Iron Workers," but denied attempting to influence Antrup. On the following morning, August 11, Mavis, Zook, and Hinsey, three employees, circulated a petition headed, "We the undersigned are in favor of a Shop Union," among the employees at the plant. Mavis testified that on the morning of August 11 he had asked his wife to write the heading of "a petition," and she had complied. On the same day the three employees also distributed membership cards of the Association throughout the plant. All this activity was conducted openly and with knowledge of foremen that it was taking place. The respondent did not in any way object to the circulation of the petition or the distribution of the Association's membership cards. That night the Association called a meeting of the employees, which was held at the Owl's Club in Auburn. Notice of the meet- ing was posted in the plant and also passed by word of mouth. Approximately 82 employees of the respondent were present at this meeting. A vote taken among them revealed that 57 favored the Association and 25 did not. A committee was appointed to carry on the Association's organizational campaign, which was conducted very actively from August 11,until September 1, 1937. Discussions and solicitation of members were carried on con- stantly at both the plants throughout the entire day by Hinsey, Mavis, Rank, Cruse, Haynes, and other employees, without inter- ference by, the respondent's officials or foremen and without deduc- tiOn`of pay for the time so spent. Those engaged in the 'various activities on behalf of the Association were afforded the greatest latitude by the respondent. One man, Hinsey, did little else during the entire period that the Association was soliciting members. Hinsey repairs and experiments on stokers, and is stationed in the stoker division. Although Hinsey had few duties in the foundry, he was there almost constantly, soliciting Association memberships throughout the organization campaign At the hearing Hinsey ad- mitted that he was in the foundry in the interests of the Association. In contrast to the freedom it accorded employees active on'behalf of the Association, the respondent, as has been shown, was hostile toward the Amalgamated. Thus, on one occasion, Foreman Hansel stopped a discussion between Kenneth Kahler and another employee about, unions in general and the C. I. O. in particular, with the statement that talk concerning the C. I. O. was not permitted in the plant. AUBURN FOUNDRY, INCORPORATED 1227 The respondent's foremen not only acquiesced in the activities of the employees on behalf of the Association, but actively assisted the Association in its campaign by soliciting members, threatening to discharge, members of the -Amalgamated, . requesting individual, em- ployees to ask others 'to sign up- with the Association, disparaging the C. I. O. and the American Federation of Labor, permitting the Association to use offices, and gathering employees together to en- able. Association representatives to address them. We shall relate it few of the outstanding instances of such activities : Albert White testified that Bushong said to him, "I gave you a job and I think you ought to sign with the shop union." Lloyd White testified that Bushong told him that those who joined the Association would receive a 5-cent raise. Bushong denied making these statements. Brunka, testifying from notes, stated that at the meeting previ- ously referred to, held in Fink's office, he confronted Bushong with the charge that the latter had actively solicited on behalf of and otherwise. assisted the Association. and that. Bushong.. admitted. the accusation, with the explanation that he did not know the law. At the hearing Bushong denied the activity and the statements. On the entire record we find that Bushong made the statements attributed to him by the White brothers and Brunka, and actively assisted the Association. In August 1937, Clarence Meyers, foreman of the 4:30 p. m. to 1: 30 a. m. shift in the foundry, asked John Sherwood, an employee, to induce employees to join the Association, which he called the "shop union," and not to mention the request to anyone. Charles Haifley, a witness called by the respondent, admitted on direct .examination that Association cards' were distributed ,in the plant during working hours, in the presence of Foreman Hansel. Several witnesses also testified that Hansel assisted in solicitation for the Association in August 1937. Hansel denied it. We believe the witnesses. This type of activity on the part of the respondent's supervisory personnel was not confined to its Auburn plant, but extended to the Columbia City plant as well. There, Corrello, the foreman in charge of that plant, facilitated Hinsey's activities on behalf of the Asso- ciation by giving him the use of the office to hold a meeting of the employees and distribute Association membership cards. Wiseman, a timekeeper and general clerical employee, called together the men for this meeting. The respondent does not permit production employees to use the office for any purpose. Corrello attempted to justify permitting Hinsey's use of the office by saying that a few days previously an 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Amalgamated meeting had been held outside the plant and that he "was giving them both an even shake." On September 1 or 2, 1937, a committee of the Amalgamated called.:at Fink's office and requested an interview for purposes of collective bargaining, but were informed that Fink was out of town and would not return for a few days. Mrs. Rhodefer, the stenogra- pher to whom they spoke, denied at the hearing that she was in- formed of the purpose of the visit. She further testified that on the following day she informed Fink of the committee's visit. Fink was actually in town on the day when the Amalgamated committee called, to see, him. A few days prior to September 1, 1937, Hinsey and a committee of the Association had prepared a proposed contract to be entered into by the respondent with the Association. On the morning of September 1 the proposed contract was left in Fink's office by Hinsey. A few hours later Fink called Hinsey into his office, asked a few questions concerning the contract, and requested proof that the Association represented a majority of the respondent's em- ployees. Hinsey claims that he thereupon left with Fink Asso- ciation membership cards which he had brought with him, and which were -signed, by employees of the respondent. A number of the cards were signed on the back instead of on the face. Some of the employees testified that upon refusing to sign Association membership cards, they were told to sign the back of the card for the purpose of indicating that they had been asked to join but did not desire to do so. None the less, these cards were included among those shown to Fink, and he counted the individuals named thereon as a part of the Association's membership. The contract, recognizing the Association as sole bargaining agent of the respondent's employees, was concluded that "same evening at a meeting at Hinsey's home, with but a few minor changes in the phrasing requested by the respondent. Several, of the Association's witnesses, called by the Association primarily for the purpose of showing that they had joined the Asso- ciation of their own free will, testified to the contrary, saying, in substance, that they joined because they were coerced and intimi- dated into so doing. We find that the respondent dominated and interfered with the formation and administration of the DeKalb Iron Workers Asso- ciation and contributed financial and other support to it, thereby in- terfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. We find fur- ther that the Association is incapable of serving the respondent's employees as their genuine representative for the purposes of collective bargaining. AUBURN FOUNDRY, INCORPORATED 1229 C. The discriminatory discharges 1. Robert Livergood The complaint alleges that the, respondent discriminatorily dis- charged-Robert Livergood on August 4, 1937, because of his activities in the respondent's plant on behalf of the Amalgamated. The re- spondent, in its answer, denied that Livergood was discharged, and claims that he quit voluntarily. During the hearing, the correct date of the incident complained of was shown to be August 21, 1937. Livergood was first employed by the respondent in May 1936 as a mvlder's• helper at an hourly wage of 35 cents or about $15 a week; By June 1937 his earnings on a piece-work basis averaged $31 per week and sometimes reached $40 per week. In July 1937 Livergood joined the Amalgamated and was very active on its behalf. During the suminer of 1937, when the respondent found it necessary to lease an additional plant at Columbia City, Indiana, Rowan, then super- intendent, selected a -number of the employees to go to Columbia City in order to show the. new men how the work should be done. Livergood was among those -asked to do this, and, he testified, it was distinctly understood and stated that he was to return to the Auburn plant as soon as his task at Columbia City,was finished. While at the Columbia City plant, Livergood was, active in secur- ing members for the Amalgamated and, on August 11, 1937, he was called by Rowan into his office and was advised of the latter's dis- pleasure at this activity, and the advisability of Livergood's joining the "shop union." Livergood continued to be just as active after this conversation as lie had been before it. On August 21 Livergood, who with three other employees was working on Tokeim bases, was approached by the foreman, Corrello, and asked whether he would like to go upstairs to do "bucking." Livergood refused. "Bucking"e constituted a demotion, carrying a lower rate of pay and less desirable conditions than the work being done by Livergood. Livergood. testified that. upon his refusal to transfer to the job offered, Corrello said that he had better go back to Auburn. By that time a number of the employees who had come to Columbia City from the Auburn plant for the purpose of instructing and breaking in new men, had been recalled to Auburn. Livergood testified that he understood that Corrello meant that it was now his turn to return to Auburn. On Monday, August 23, Livergood re- turned to Auburn, but was informed that there was no opening for him there. He returned again on August 24 and was again advised by Hampshire that there was no opening, and, furthermore, that Corrello had no authority to order Livergood's return to the Auburn plant. 6 6 A "buck" is a helper. 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A The respondent's version of the affair is somewhat different. Cor- rello testified that Rowan had been dissatisfied with Livergood's work at Auburn, and had so informed Corrello; that Corrello's reason for offering Livergood a different job was, the dissatisfaction of the,other three men, who together with Livergood constituted the group work- ing on the particular job, with Livergood's productivity; and that the job offered Livergood was not a demotion, but was a promotion. At the hearing, Sm,urr, the employee whose complaints the respond- ent claims were the basis of the proposed transfer of Livergood, testified that during the week preceding the one in which Livergood ceased working for the respondent, Smurr was out 2 days, and Liv- ergood was out on 2 other days; that on the days when Livergood was out the group produced fewer units than on the days Smurr was out. The production credited to each member of the entire group was, therefore, not the same, and the pay varied accordingly. As a result, also, Smurr's pay was lower than that of all the others. Smurr approached Rowan and later also Corrello and inquired as to the reason for the discrepancy,, Correllos replyowas, "Your..dissatisfac-.;: tion, I know where it is, I think . . . Your dissatisfaction is with the production or work that Livergood is putting out." Smurr had not specifically complained about any individual. member of the group in which he was working. The first reference to Livergood was made by Corrello, and not by Smurr. No complaints had been received by the respondent regarding Livergood's individual or group work prior to this time. On the contrary, Smurr at the hearing stated that he preferred to work with Livergood rather than with any other employee. The testimony of Corrello is inconsistent. He contended that he removed Livergood from work at, which he was inefficient, yet stated that the proposed transfer would carry better pay. The respondent's explanation of this unusual manner of dealing with an allegedly inefficient employee, and its explanation of the in- consistency between Livergood's rapid rise in wage earnings and the claim of inefficiency, was that Livergood was a good man when work- ing alone, but not so good when working with a group. Corrello ad- mitted, however, that the job offered Livergood was on a machine with another employee. Corrello also testified that Livergood's refusal to take the "buck- ing" job was accompanied by improper language and that Livergood was not discharged but quit voluntarily. Livergood's alleged discharge constituted a subject of the confer- ences previously mentioned, between Brunka and the - respondent's officials. Brunka, testifying from the report he had prepared at the time of the conferences, stated that, during the conferences, Fink AUBURN FOUNDRY, INCORPORATED 1231 went to Columbia City to confer with Corrello; that upon his return, Fink stated to Brunka that Corrello was justified in discharging Livergood, and Corrello would not reinstate him and that, in any event, he, Fink, would not reinstate Livergood for reasons which Fink; did not-disclose. We credit Brunka's-testimony as to'the con- ferences over Fink's denials. Thus, while Corrello testified that Livergood quit, Fink asserted to Brunka that Livergood was discharged. . A week after Livergood's employment by the respondent had been terminated, Livergood approached Henry Siegel, an independent con- tractorworking for the respondent, and requested a job. Siegel told him to return next morning at 7 a. in. to begin working. Livergood testified that he arrived before 7 a. m., but was told that there was no work for him. Siegel claims Livergood was not hired solely be- cause he arrived after 7 a. in. About March 1938 Livergood met Siegel, and asked him why he had not been put to work. Siegel replied that after hiring Livergood, he thought the matter over, and, knowing that the respondent had let Livergood go, had gone to ask Hampshire whether to hire Liver- good; that Hampshire told him not to hire Livergood as he, Hamp- shirre;.did, not want Livergood-to talk to the boys at the plant. Bow- erman, an employee, who was present, corroborated this testimony. At the hearing, Siegel was very confused when asked to state in his own words why he consulted Hampshire, finally, admitting that he spoke to Hampshire "to see if he cared whether I used Livergood or not." He also admitted that this was the first time he had,, thus con- sulted any of the respondent's officials. He denied, however, that Hampshire told him not to hire Livergood. At the hearing, Hamp- shire, called as the respondent's witness, did not testify concerning this conversation with Siegel. We find that on August 21, 1937, the respondent discharged Liv- ergood, and on and after August 23, 1937, refused to reinstate him because :of, his, membership in. and, activities on behalf of the Amal- gamated, and that it thereby discriminated in regard to Livergood's hire and tenure of employment, discouraged membership in the Amalgamated, and interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. The parties stipulated on the record as to Livergood's earnings for 10 weeks preceding August 21, 1937. We find that the average was $28.90 a week. Since August 21, 1937, until the hearing, Liver- good has been employed for short periods of time, earning a total of about $76. He desires reinstatement to his job with the respondent. 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Arthur Miller The complaint alleges that Arthur Miller was discriminatorily laid off on November 12, 1937,7 at which time other persons with less seniority.than he were being retained by the respondent. . Miller' first began working for the respondent on December 10, 1934. In February 1936 he was laid off by the respondent, and secured a position at the Kendallville foundry. Miller testified that on numerous occasions between February and June 1936 he tele- phoned and saw Superintendent Rowan regarding reemployment at the Auburn foundry; that Rowan constantly promised Miller that he would be reemployed as soon as a vacancy occurred; that upon being informed in June 1.936 that there was a job for him, he im- mediately returned to work for the respondent; that he worked for the respondent until November 12, 1937, when he was again laid off. A month previous to this last lay-off, Miller had been elected vice president of the Amalgamated. His activity and membership in the. Amalgamated were well known to the respondent. In June 1936, after he had been reemployed, Miller and other employees were called into Fink's office, where the discussion referred to previously took place with Fink, with reference to the sit-down strikes in .ether cities. Fink, as previously stated, informed those present that he did not want any such trouble at his plant, indicated his dis- pleasure at the distribution of the "Steel Worker," and stated to Miller that there were some rumors of Miller's intention to encourage sit-down strikes at the plant. Miller testified that he disavowed having any such intention. Miller also testified that in August 1937 Hampshire told him that all 'those who joined the C. I. O. would soon be looking for jobs. Hampshire, we have already found, was incautious in his reference to the C. I., O. Although Hampshire denied the statement attributed to him by Miller, we find that he made it. The respondent contends that Miller was laid off in strict con- formity with his seniority, for lack of work. It asserts that some- time- between February and June 1936 Rowan called Miller back to work at the Auburn plant and Miller refused to return, thereby losing the seniority he had acquired since 1934. Superintendent Hart, who was primarily responsible for Miller's- lay-off, in testi- fying, concerning Miller's seniority read from a list prepared in September 1937, showing seniority standing of .231 employees of the respondent, as of September 11, 1937. On . this list, against Miller's name, the date "12/10/34," appears. This date was crossed 'The parties stipulated at the bearing that Miller returned and worked for the re- spondent for 1 day on November 15, 1937. AUBURN FOUNDRY, INCORPORATED 1233 out in pencil and above it "6/12/36" written, the date on which Miller resumed employment. Originally the list had been prepared from the records of the respondent. Hart testified that the correction as to Miller's employment date had been. made by him after he had received the list, and that he made the correction from memory, basing it upon the alleged interruption of Miller's seniority. We are not convinced by Hart's testimony. We. believe he made the correction to give color to the respondent's alleged reasons for Miller's lay-off. In an attempt to contradict Miller's story that between February and June 1936 he made repeated telephone calls and saw Rowan, the respondent called Rowan's daughter, Ruth Fisher, who testified that during that entire period her father was ailing, and that she con- stantly ministered to his needs, and was near him at all times; that on those occasions when her father was visited by persons and he received them on the porch of their home, either the door was open so as to enable her to see who was there, or, if she was unable to see, her father thereafter related exactly-with whom .he had: spoken and precisely what had been said; and, finally, that Miller did not telephone or see Rowan. On cross-examination she was less certain of her uninterrupted presence at her father's side, and admitted that she sometimes went to a movie, and elsewhere. We believe Miller's testimony regarding the telephone calls and visits. We find that Arthur Miller as laid off on November 12, 1937, because of his union activities, and not because his seniority stand- ing required it. By laying off Miller, the respondent discriminated in regard to his hire and tenure of employment, discouraged mem- bership in the Amalgamated, and interfered with, restrained, and coerced, its- employees in the exercise of the rights ,guaranteed in Section 7 of the Act. Miller's average earnings while working for the respondent were between $30 and $32 a week. Miller has not worked since he was laid off. He desires reinstatement to his Job with the respondent.' 3. Wayne Nichols - Nichols, chairman of the bargaining committee of the Amalga- mated, was first employed by the respondent in 1923 and, except for a few short periods, worked continuously as a molder until March 1936.. In March 1936 Nichols was laid off, and, subsequently, upon being reemployed, became ill. On November 23, 1937, after recovering from. his illness, Nichols reported back to work, and was told that his seniority rating did not as .yet permit his reemployment. Nichols indicated to the re- spondent his willingness to do any type of work that other. molders 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were willing to do. Nichols claims that at this time two men, with less seniority than he, had been reemployed by the respondent. The testimony of Nichols and other witnesses indicates that. these two men were doing work other than that previously 'performed by Nichols. The evidence is not sufficient to sustain the allegations in the complaint that the refusal to reemploy Nichols on November 22, 1937, was discriminatory. There is no proof that individuals with less seniority than Nichols has were working for the respondent. We find that by refusing to reemploy Nichols the respondent did not-discriminate in regard to his hire or tenure of employment. The complaint as to Nichols will, accordingly, be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities set forth in Section III, above, occur- ring in connection with the operations of respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found' that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We shall order the respondent to cease and desist from engaging in such unfair labor practices and to take certain affirmative steps which we deem to be remedial of their effect. 1 We have found that the respondent has dominated and interfered with the formation and administration of the Association and has contributed financial and other support to it, and is now dominating and interfering with it, and contributing financial and other support to,it;, and-Ahat 4he •.Association•. cannot serve the employees as their genuine representative for the purposes of collective bargaining. In order to insure to the respondent's employees the rights guaran- teed them in Section 7 of the Act, we shall order the respondent to withdraw recognition from and disestablish the Association as such representative. We shall also order the respondent to cease giving effect to the contract between it and the Association. We have found that the respondent discriminatorily discharged Rob- ert Livergood and discriminatorily laid off Arthur Miller. We shall order the respondent to offer Livergood and Miller immediate and full AUBURN FOUNDRY, INCORPORATED 1235 reinstatement to the positions which they formerly held with the re- spondent, the former, on and. before August- 21, 1937,- and- the latter, on and before November 22, 1937. In addition, we shall order the respondent to make Livergood and Miller whole for any loss of pay they may have suffered by reason of the respondent's discriminatory conduct 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 the discharge or lay-off, to the date of the offer of reinstatement, less his net earnings 8 during said period. VI. THE QUESTION CONCERNING REPRESENTATION The respondent on several occasions refused' to bargain, upon re- quest, with the Amalgamated. The respondent and the Amalgamated also disagree as to which of the respondent's employees constitute an appropriate unit for purposes of collective bargaining. We find that a question has arisen concerning representation of employees of the respondent. VII. THE EFFECT-OF THE,, QUESTION. CONCERNING. REPRESENTATION„ON.. COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent described in Section I, above, has a close, intimate, and substantial re- lation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free. flow. of commerce. VIII. THE APPROPRIATE UNIT During the hearing, all the parties stipulated that the production and maintenance workers at the Auburn plant, excluding supervisory and office employees, engineers, draftsmen, truck drivers, timekeepers, and watchmen, constitute a unit appropriate for the purposes of'col- lective bargaining. We see no reason for departing from. the. agreed, unit. 8 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working elsewhere than for the respondent , 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 be 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. 1236 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD The parties could not agree as to three individuals, namely, Blicken- staff, Shoudel, and Velpel. These three persons are engaged in clerical work. Their duties are thus closely analogous to those of office work-, ers. We shall exclude them from the unit. We find that all production and maintenance workers at the Auburn plant, excluding supervisory and office employees, engineers, drafts- men, truck drivers,, timekeepers, and watchmen, constitute a unit ap- propriate for the purposes of collective-bargaining and that said •unit will insure to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES The Amalgamated did not offer any proof at the hearing to show, how many of the respondent's employees it represented. Accordingly, an election by secret ballot is necessary to determine whether the em- ployees of the respondent who are within the unit found by us to be, appropriate desire to be represented by the Amalgamated. Inasmuch as we shall order the disestablishment of the Association, we shall not include the Association's name upon the ballot. The parties have stipulated that in the event of an election the pay roll for the week ending August 28, 1938, be used as the basis for eli- gibility to participate in the election. We shall not, however, at this time fix the eligibility date or the date for the holding of the election, since we are of the opinion that the election should not be held until sufficient time has elapsed to permit a free choice of representatives, unaffected by the respondent's unfair labor practices. Upon the basis of the above findings of fact. and upon. the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Lodge 1998 of Amalgamated Association of Iron, Steel and Tin Workers of North America, and DeKalb Iron Workers Association, Inc., are labor organizations within the meaning of Section 2 (5) of the Act. 2. The respondent, by dominating and interfering with the forma-' tion and administration of the DeKalb Iron Workers Association, Inc:, and by contributing support to said organization, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. The respondent, by discriminating in regard to the hire and tenure of employment of Robert Livergood and Arthur Miller, and' thereby discouraging membership in Lodge 1998 of Amalgamated AUBURN FOUNDRY INCORPORATED 1237 Association of Iron, Steel and Tin Workers of North America, has engaged in and is engaging in unfair labor practices, within the mean- ing of Section 8 (3) of the Act. 4. The respondent, by interfering with, restraining, and coercing its. employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the. Act. 5. The aforesaid labor practices are unfair labor, practices affecting commerce, within the meaning of Section 2 (6) and (7) of the-Act. 6. The respondent, by refusing to reemploy Wayne Nichols on November 22, 1937, did not discriminate against him in regard to hire and tenure of employment within the meaning of Section 8 (3) of the Act. 7. A question affecting commerce has arisen concerning the repre- sentation of employees of the respondent within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the Act. . 8. All production and maintenance workers employed by the re- spondent, excluding supervisory and office employees, engineers, draftsmen, truck drivers, timekeepers, and watchmen, constitute a unit appropriate for the purposes of collective bargaining within.the.meau- ing .of Section 9 (b) 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, Auburn Foundry, Inc., and its officers, agents, successors, and assigns shal] : 1: Cease'and desist from: (a) Dominating or interfering with the administration of DeKalb Iron Workers Association, Inc., or the formation or administration of any other labor organization of its employees, and contributing sup- port to DeKalb Iron Workers Association, Inc., or any other labor organization of its employees; . (b) Giving effect to its contract dated September 2, 1937, with DeKalb Iron Workers Association, Inc., or to any extension or renewal thereof, or to any successor contract with said Association ; (c)' In any manner discouraging membership in Lodge 1998 of Amalgamated Association of Iron, Steel and Tin Workers of North America, or any other labor organization of its employees, by discharg- ing, laying off, or refusing to reinstate any of its employees or in any other manner discriminating in regard to hire or tenure of employment or any other term or condition of employment; 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) ' In-any'other. manner interfering with, restraining, or coe.17.9P19-. its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or mutual aid and 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) Withdraw all recognition from DeKalb Iron, Workers As- sociation, Inc., as representative of any of its employees 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 DeKalb Iron Workers Associa- tion, Inc., as such representative ; (b) Offer Robert Livergood and Arthur Miller immediate and full reinstatement to the positions which they formerly occupied at the respondent's plants on and before August 21, 1937, and on and before November 22, 1937, respectively, or to substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges ; (c) Make whole Robert Livergood and Arthur Miller for any loss of pay they have suffered by reason of the respondent's discrimi- nation in regard to their hire or tenure of employment, by payment to each of them of a sum of money equal to that which each normally would have earned as wages from the date of the respondent's discrimination against him, to the date of the respondent's offer of reinstatement, less his net earnings during such period; deducting, however, from the amount otherwise due to each of the said em- ployees, money received by each of said employees during said period for work performed upon Federal, State, county, municipal or other work-relief projects; (d) Post immediately in conspicuous places throughout its plant at Auburn, Indiana, and its plant at Columbia City, Indiana, if the respondent is still operating said Columbia City plant, notices to its employees stating that the respondent will cease and desist as provided in paragraphs 1 (a), (b), (c), and (d), of this Order and will take the affirmative action required by paragraphs 2 (a), (b), and (c) of this Order; and maintain such notices for a period of at least sixty (60) consecutive days from the date of posting; (e) 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 therewith. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent (1) has discriminated in regard to hire and AUBURN FOUNDRY INCORPORATED 1239 tenure of employment of Wayne Nichols, and (2) has refused to bargain with Lodge 1998 of Amalgamated Association of Iron, Steel and Tin Workers of North America, be, and it hereby is, dismissed. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Auburn Foundry, Inc., Auburn, Indiana, an elec- tion by secret ballot shall be conducted at such time as the Board shall hereafter direct under the direction and 'supervision of the Regional Director for the Thirteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations-Series 2, among all production and maintenance workers at the Auburn and Columbia plants, employed by the respondent during a pay-roll period to be determined at a later date, including those employees whom we have determined to have been discriminatorily laid off or discharged, excluding supervisory and office employees, engineers, draftsmen, truck drivers, timekeepers, and watchmen, to determine whether or not they desire to be represented by Lodge 1998 of Amalgamated Association of Iron, Steel and Tin Workers of North America, through the Steel Workers Organizing Committee, affiliated with the Committee for Industrial Organization, for the purposes of collective bargaining. MR. WILLIAM M. LEIsaRsoN took no part in the consideration of the above Decision, Order, and Direction of Election. 190935-40-vol. 14-79