Vincennes Steel Corp.

In the Matter Of VINCENNES STEEL CORPORATION and INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORK- ERS, LOCAL No. 585, AFFILIATED WITH A. F. OF L. Case No. C-1190.-Decided November 17, 1939 Structural Steel Manufacturing Industry-Interference , Restraint , and Coer- cion: anti-union statements to employees ; stock-purchase plan providing that employee-subscriber refrain from requesting wage increases ; ordered to notify employees that above provision is void and that ownership of the respondent's stock will in no way affect any term or condition of employment-Discrimina- tion: lay-off of six employees 3 days after first union meeting, and subsequent discharge of two other employees found discriminatory ; defense of weak eye- sight as to one employee held to be without merit ; allegations of discrimination in regard to assignment of duties dismissed-Reinstatement Ordered: two em- ployees not previously reinstatedBack Pay: awarded. Mr. Walter B. Chel f, for the Board. Shake d Kimmell, by Mr. Gilbert Shake and Mr. Joseph W..Kim- mell, and Kessinger, Hill c1 Arterburn, by Mr. W. H. Hill and Mr. Norman Arterburn, all of Vincennes, Ind., for the respondent. Mr. William P. Dennigan, of Vincennes, Ind., for the Union. Mr. Frederick R. Levinstone , of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Association of Bridge, Structural and Ornamental Iron Workers,' Local No. 585, herein called the Union, the National Labor Relations Board, herein called the Board, by Robert H. Cowdrill, Regional Director for the Eleventh Region (Indianapolis, Indiana), issued its complaint dated November 9, 1938, against Vincennes Steel Corpora- tion, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, ' Incorrectly designated in the charge and complaint as International Association of Bridge and Structural Iron Workers. 17 N. L. R. B., No. 72. 25 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein called the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and the Union. The complaint alleged in substance that during the period from April 6, 1938, through September 6, 1938, the respondent discharged two of its employees and laid off seven others,' because they joined and assisted the Union; that the respondent adopted and promulgated a stock-purchase plan among its employees to discourage said em- ployees from becoming or remaining members of the Union; that the respondent by these and other acts interfered with, restrained, and coerced its employees in the exercise of the right to self-organization and to engage in concerted activities for their mutual aid and protec- tion. On November 15, 1938, the respondent filed an answer denying that it had engaged in any unfair labor practices, within the meaning of the Act. Pursuant to notice a hearing was held at Vincennes, Indiana, on December 1, 2, 3, 5, 6, and 7, 1938, before Earl S. Bellman, the Trial Examiner duly designated by the Board. The Board, the Union, and the respondent were represented by counsel and participated in the hearing. Upon amended charges filed by the Union and on motion of counsel for the Board made at the beginning of the hearing, the complaint was amended, and an answer was filed by the respondent to the amended complaint. At the close of the Board's case, counsel for the Board moved to dismiss the complaint without prejudice in so far as it alleged that James Harness was discriminated against. The motion was granted. 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 ruled on various motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Trial Exam- iner also reserved ruling on several motions. On February 3, 1939, the Trial Examiner filed an Intermediate Report in which he found that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Sec- tion 8 (1) and (3) and Section 2 (6) and (7) of the Act. He ruled upon motions-as to which he had reserved ruling, and denied the respondent's motion to dismiss the complaint made upon the ground that the charges were signed "International Association of Bridge and Structural Iron Workers, Local 585, by R. Virgil Wright, Finan- cial Secretary and Treasurer," whereas the correct name of the Union 'The names of these employees are Levi Melvin. Julius Sievers. Andrew Eddleman. Ken- neth Richardson, R. Virgil Wright, Russell Hall, Burl Deem, Raymond Crawford, and James Harness. VINCENNES STEEL CORPORATION 827 was International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 585. In support of the motion the respond- ent contended that the Board had authority to issue a complaint only upon a charge filed by a labor organization or person , and since no such labor organization existed under the exact name designated in the charge the complaint should be dismissed. We find this conten- tion without merit. A misnomer does not vitiate the existence of the organization. The respondent was aware of the Union 's identity and was not surprised or inconvenienced by the omission. The Trial Examiner also recommended that the respondent cease and desist from certain unfair labor practices ; offer reinstatement with back pay to two employees found to have been discriminatorily discharged ; make whole six other employees for any losses of pay resulting from their discriminatory lay-offs; and notify employees who had signed a stock- purchase agreement that a provision of the agreement purporting to bar requests by such employees for changes in wages was no longer operative and further that ownership or lack of ownership of the re- spondent's stock would in no way affect any term or condition of em- ployment. Thereafter briefs were filed by the respondent and the Union and the respondent filed exceptions to the Intermediate Report. Pursuant to notice duly served on the parties , a hearing for the purpose of oral argument was held on September 26, 1939, before the Board in Washington, D. C. No one appeared on behalf of the respondent and the Union appeared by a representative . The Board has considered the exceptions to the Intermediate Report and, except as they are consistent with the findings , conclusions , and order below, we find them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Vincennes Steel Corporation, an Indiana corporation, is engaged in the manufacture, processing , and distribution of fabricated steel bridges and steel structures at Vincennes , Indiana. During 1937 the respondent purchased 10,040 tons of raw steel at a cost of $473,600, 20 per cent of which was obtained from sources outside the State of Indiana. During the same year, it shipped 9,087 tons of fabricated steel, of which 90 per cent was shipped to destinations outside the State of Indiana. The respondent maintains a railroad connection with the Baltimore & Ohio railroad. The total value of processed steel used by the respondent in the fabrication and building of the bridges in 1937 was $1,100,000. . 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U. THE ORGANIZATION INVOLVED International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 585, is a labor organization affiliated with the American Federation of Labor and admitting to membership pro- duction employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference , restraint, and coercion About the first of January 1938 R. Virgil Wright , an employee of the respondent , discussed possible organization of the respondent's employees with an A. F . of L. organizer. On January 3 Kenneth Richardson, an employee subsequently elected chairman of the Union, advised Aaron Uland , superintendent of the respondent's plant, that the men were planning to organize the shop. Uland replied that he. did not think it could be organized because the plant would close down before any union would be recognized . The respondent's em- ployees had never beela organized before and following Wright's conference with the organizer , there was considerable discussion of unions among the employees. The respondent was evidently aware of this union activity and on February 17 Everett Frye, a supervisor in the plant,3 informed Burl Deem , an employee, that the respondent was planning to issue shares of its stock to the employees in order "to keep the boys from wanting to join the union." Despite the above indications of the respondent's antipathy toward its activity, the Union held its first organizational meeting on April 4, at which all ten employees attending signed membership applications. Two days later, Raymond Crawford, who had been laid off on March 19, was rehired by Uland. According to Crawford , Uland explained that he would be given steady work because there were certain em- ployees who were not "loyal" to the Company and Uland believed Crawford would be more "loyal" than they . As noted below, seven men were laid off the following day. Crawford, 'a union member, was among them. Uland categorically denied talking to Crawford that day and asserted that the latter was hired for a temporary job. Uland made no explanation of the manner in which Crawford received his working instructions , nor could he recall any instance of hiring a man for 1 day except in January when the plant was virtually shut down. We deem it highly unlikely that Crawford would be recalled for 1 day prior to a contemplated lay-off of approximately one-fifth of the respondent's then existing personnel , and we therefore find that the conversation occurred as related by Crawford. 8 Frye is in charge of the lay-out department which is the center of activity of the plant, and acts as superintendent when Uland is out of the plant. VINCENNES STEEL CORPORATION 829 The same day Vincent Frye, an employee and son of Everett Frye, told Wright that the respondent knew all about the Union and knew the names of the officers. Later that day a member of the Union was laid off and without warning seven more men, including Crawford, were laid off before the commencement of work the following morn- ing. Deem was the only non-union man included in the lay-off. Deem, a former member of the United Mine Workers, was known about the plant as a union man, however, and signed a union applica- tion the day he was laid off. Two days after the lay-offs Uland was seen stationed outside the union headquarters while the men were arriving for a meeting.4 It is significant that although the Union had enrolled only one-third of the respondent's employees at that time, all of the men laid off were union members or sympathizers. Coincidentally with the lay-offs, the respondent held a meeting of the remaining 26 employees at which the stock-purchase plan, previ- ously mentioned by Frye, was outlined by Hugh Q. Stevens, the re- spondent's secretary and general manager. The meeting was held during working hours in the basement which had been specially pre- pared for that purpose. The plan, subsequently subscribed to by most of the men, provided that : each of said employees agree to work for said corporation at the same hourly wage each is now receiving, as indicated by the records of said corporation. Considerable discussion was provoked by the plan among the em- ployees in the plant, which the respondent made no effort to curtail. On April 22 Deem, who had been previously laid off, was reinstated, and that afternoon was called into Uland's office to be told about the plan. After some discussion, Deem informed Uland that he, did not care to subscribe, because the wage clause "did not appeal" to him. The same day three other employees, Levi Melvin, Taylor Vanwey, and James Stafford, went to Uland's office .during working hours to have him "explain" the plan. During the discussion, Uland stated, "This is the contract that the Steel Corporation is going to operate under." Uland solicited both Vanwey and Melvin to sub- scribe at this time, but only Vanwey acceded. Melvin refused, explaining that he "had throwed in with a bunch of the boys who was going with the Union." 5 Uland did not restrict his promo- tional activities on April 22 to his office, however. After Crawford had refused to go to the office when summoned by Clayton Snapp 'In view of the admissions of both Uland and Stevens that Uland informed Stevens, the Monday morning following the meeting , of the Union's organizational activities, and Frye's uncontroverted testimony that respondent knew all about the Union , we attach no credence to Uland's assertion that be was in the vicinity on personal business. "Subsequent to Melvin 's visit to his office, Uland came through the plant yard and told Melvin that Alvin Spitz , another employee , had subscribed to the plan and that Melvin's stock was ready for him if he wanted it. Melvin again refused to subscribe. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Stafford, Uland came to the plant yard and asked Crawford whether he had decided to take some stock. Crawford stated that he did not desire to do so, whereupon Uland replied, "You have got from now until quitting time to make up your mind whether you will take it or not." As a result Crawford signed the agree- ment. Uland admitted that the employees were free to come to his office to talk about the plan 6 and, despite the general ban on conversation during working hours, he never specifically forbade its discussion in the plant. In contrast to this attitude, Uland promptly suppressed any conversation relating to the Union. On one occasion Uland warned Hall, an employee whom he accused of union solicitation, that men had been fired for "talking." About June 1, he repri- manded. Wright for discussing the desirability of extra pay for overtime work, and censured him for "listening to these organizers and to them labor board guys." The employee stockholders, who had their meetings on company property, excluded Vanwey, the only union member who purchased stock, from their meetings. During this period, one of the union officers resigned to become a subscriber, and the Union's membership dropped from 22 to 10. The true purpose of the plan is indicated by the fact that after a conference with union delegates requesting recognition on April 26, Stevens wrote to the union secretary as follows : "From infor- mation that has come to us recently, it appears that our shop employees are satisfied with existing conditions." Stevens testified that he relied upon a petition presented by 22 employees, including 2 supervisors,? prior to April 20, requesting that the stock plan be offered in accordance with the representations made at the meeting of April 7. The respondent's attitude toward the Union, as con- trasted with its attitude toward the plan, is illustrated in an event occurring 2 weeks prior to the hearing. On this occasion Frye told Hall that the respondent's president, Oliphant, had said he would "shut the plant down" before recognizing the Union.8 We find that the respondent, by the above-described acts and statements of its supervisory employees, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 6 Uland denied most of the solicitation activities attributed to him. The Trial Examiner, who observed the demeanor of the witnesses, found that the solicitation occurred as related by the Board's witnesses. We have reviewed the evidence, and agree with the Trial Examiner. ' The two supervisors were Everett Frye, whose capacity has been previously shown, and Oscar Keith who according to Uland "is over all the men there in the plant, as far as decisions is concerned in the workmanship." 8 Although Oliphant is not active, he owns the controlling Interest in the respondent. VINCENNES STEEL CORPORATION 831 B. Stock-purchase plan A plan was first suggested to the respondent's employees in 1932 during a period when wage cuts were made. Thereafter it was discussed by the respondent's officers from time to time but no specific plan was drawn until the emergence of the union organi- zational drive. After it became aware of the union activity, and about the time that Frye told Deem that the respondent was con- templating the issuance of its stock to. forestall union organization, the respondent requested its auditor to draft a plan. The final plan was submitted to the respondent's officers early in March 1938 and at that time benches for a meeting place were set up in the basement of the plant. Arrangements were thus completed and the respondent was ready to present the plan to the employees whenever it was deemed expedient. As noted above, the plan was outlined to the employees at a meeting on April 7, the same day on which six union men and Deem were laid off. After describing the plan, Stevens stated that a formal agreement would be presented within a week. Another meeting was not called, however, until April 20. The written agree- ment was read to the men at that time by Stevens who told them that its presentation had been delayed because "an attempt was being made to unionize our shop." Stevens stated that because of this the respondent wanted to be certain that the plan did not violate the Act. He informed the men that the respondent had been ad- vised by counsel that the terms of the plan were consistent with the Act and it was therefore presenting the agreement at that time. . Under the plan as adopted, each employee subscribed to ten shares of the respondent's stock at the par value of $100. In payment therefor he executed a promissory note and pledged his stock as collateral. Whether or not the employee was obligated to pay the note in cash is not clear from the record. To assist the employees in paying the notes, provision was made for dividends and a sliding scale bonus based upon the respondent's net earnings. The bonus, however, was in no event payable unless the respondent's annual income exceeded $25,000, a figure exceeded in only 1 year.since the Company's formation in 1932. The Company's average annual earnings over this period of 7 years were approximately $5,500.. In this respect, it is significant that the respondent's auditor admitted that by increasing salaries of its officers within bounds deemed rea- sonable by the income-tax authorities, the respondent could defeat a dividend or bonus. As previously observed, an important provision of the plan re- quired the subscribing employee to work at the same hourly wage 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he was then receiving. The respondent, however, did not assume any legally enforceable obligation, the agreement providing for ter- mination at any time by either party. It is evident from an examination of the agreement and the testi- mony of the respondent's auditor that the plan was designed primarily to induce its employees to forego the exercise of the rights guaranteed to them in the Act. Although Stevens purported to assure the men that they were free to join the Union irrespective of participation in the plan, the circumstances surrounding its pres- entation indicate clearly its use to discourage union membership. The plan was presented contemporaneously with the lay-offs of union members. The respondent's supervisory employees, while expressing hostility toward the Union, carried on a vigorous campaign on behalf of the plan and indicated that the stock-purchase agreement was the "plan" under which the respondent intended to operate. As a result of this activity 26 employees subscribed to the plan, many of the subscribers being drawn from the union ranks, which declined from 22 to 10. It is apparent that the respondent's employees were not convinced of the bona fides of Stevens' assurance. The relation between the plan and the Union as it appears from Stevens' rejec- tion of the Union's request for recognition solely on the ground that a majority of the employees had evinced a desire to subscribe for the stock, reveals that the motives of the respondent in fostering the plan were to defeat collective bargaining as defined in the Act. Moreover, the plan's provision barring requests for wage increases constituted an interference with rights guaranteed by the Act. The individual agreements to refrain from requesting wage increases con- stitute on their face, a limitation on the exercise of the right to engage in concerted activities and to bargain collectively regarding wages. Such a limitation also interferes with the right to self- organization, since it narrows the scope of the organization in one of its most important spheres of activity. The limitation may be unobjectionable when reached as a result of collective bargaining with the representatives of the employees; in such case, by hypothe- sis, organization has been attained, and the conclusion of the agree- ment is itself an exercise of the right of engaging in collective activities. But imposition of such a limitation upon the individual employee may constitute not only a, form of coercion resulting from the inequality of bargaining position, but also an obstruction, at the outset, to the development of effective organization, concerted activity, and collective bargaining. Section 9 (a) of the Act provides that the representatives desig- nated by a majority of the employees shall be the exclusive repre- sentatives of all the employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, VINCENNES STEEL CORPORATION 833.. or other conditions of employment. Deprived of the possibility of bargaining as to these matters, the right to organize and bargain as guaranteed by the Act becomes meaningless and its exercise futile. The continued existence of the wage clause in the stock-purchase plan would thwart any effort at collective bargaining and render impotent any order restraining the unfair labor practices.° From the foregoing facts and circumstances, we find that the stock- purchase plan was adopted and promulgated by the respondent as a device to circumvent the purposes of the Act, and that the re- spondent by its promotion of the plan has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in. Section 7 of the Act. C. The, discriminatory discharges and lay-offs 1. Andrew Eddleman, Kenneth Richardson, R. Virgil Wright, Russell Hall, Burl Deem, and Raymond Crawford On April 6, the day that Crawford was rehired with the assurance that he would be given steady work because of his "loyalty" and the same day that Vincent Frye told Wright that the respondent was aware of the Union's activity, Eddlemann was laid off. The next morning, without any notice, Craec ford was laid off, together with Richardson, Wright, Hall, Deem, and James Harness 10 As noted above, Deem was the only non-union man laid off and he was known as a union sympathizer. The others were all union men and attended the organizational meeting on April 4. The respondent asserts that the lay-offs resulted solely from a lack of work. In support of this contention the respondent urges that working plans under existing contracts had not yet been drafted and thus work could not be instituted. Stevens in explaining why the plan was presented on April 7, the day of the lay-offs, however, stated that business prospects were bright. An examination of the respondent's pay roll reveals that at least 30 men were steadily employed for 2 months prior to the lay-offs, which reduced the staff ° Cf. Matter of The Stolle Corporation and Metal Polishers , Buffers, Platers and Helpers International Union, 13 N. L. R. B. 370, where individual employment contracts were discussed . It is there stated: The intent of Congress to prevent such attempts to avoid the mandate of Section 11 (a) of the Act, requiring collective bargaining with the representative of a ma- jority of the employees , was expressed by the Senate Committee on Education and Labor in a report (74th Congress . 1st Session-Senate Report No. 573 ), accom- panying its submission of the Act to the Senate . The Committee stated "Majority rule carries the clear implication that employers shall not Interfere with the prac- tical application of the right of employees to bargain collectively through chosen representatives by bargaining with individuals or minority groups in their own behalf, after representatives have been picked by the majority to represent all." 10 As noted above, the complaint was dismissed as to Harness without prejudice. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from 33 to 26. After the lay-offs the number of employees pro- gressively increased until it reached 42 on August 2. Thereafter a level in the forties was maintained until the date of the hearing in December. There was a sudden drop on April 7, despite Stevens' assertion that business prospects were good. Although the respond- ent alleges it contemplated laying off one-fifth of its personnel, Crawford was rehired on April 6 and urged to be "loyal." The limitation of the men laid off to union members and sympathizers bore no reasonable relation to the number of employees enrolled in the Union at the time. From the foregoing facts and circum- stances, it is evident that no legitimate business reason for the lay- offs existed, and that the reason given by the respondent was spurious. Explaining his choice of the men laid off, Uland gave various reasons pertaining to the efficiency and interest of the men in their respective duties. Uland asserted that Eddleman was not a "regular employee"; that Richardson returned from an outside construction job without Uland's consent; and that Deem was looking for another job, made many errors, and "argued religion." Many of the events relied upon by him occurred subsequent to the lay-off s and obviously could have provided no justification for his choice. As to those matters that were alleged to have occurred prior to the lay-offs, it appears that Richardson, Wright, and Crawford were all in the employ of the respondent and its predecessor company for more than 15 years as rivet driver, bolt-up man, and crane operator, respec- tively; that Hall, during his 2 years in the respondent's bolt room, was admitted to be a good workman.; and that Eddleman and Deem had satisfactory service records of 8 and 11 years respectively. From the long records of satisfactory service of the men, we are convinced that the reasons given by Uland for picking them were not valid. On April 7 the men laid off filed a charge with the Board. The respondent had notice of the charge and subsequently three of the men were reinstated. The other four were not reinstated until after a conference between a Field Examiner of the Board and Stevens, general manager of respondent. Richardson and Wright, the presi- dent and secretary respectively of the Union, were among the last four to be reinstated. Despite the fact the Union had enrolled only one-third of the respondent's employees, all of the men laid off were, as we have said, union members or sympathizers. The lay-offs followed Uland's ex- pressions of hostility toward the Union, were contemporaneous with the presentation of the stock-purchase plan, and bore no relation to the requirements of the respondent's business. We are convinced, therefore, that by laying off these men, the respondent sought to rid itself of the union members and thereby prevent further. union VINCENNES STEEL CORPORATION 835 activity among its employees. We find that by laying off Andrew Eddleman, Kenneth Richardson, R. Virgil Wright, Russell Hall, Burl Deem, and Raymond Crawford the respondent discriminated in regard to their hire and tenure of employment, thereby discour- aging membership in the Union, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Levi Melvin. Melvin, a member of the Union, was in the employ of the respondent and its predecessor from 1925 until his discharge on August 12, 1938. He was in charge of the assembly yard and operated a crane. Prior to his discharge Melvin had been solicited by Uland to participate in the stock-purchase plan and had refused, explaining that he "had throwed in with a bunch of the boys who was going with the Union." Uland then warned him : "This is the con- tract that the Steel Corporation is going to operate under." Sub- sequently Uland came through the plant and told Melvin that Alvin Spitz, another employee, had subscribed for the stock and that Mel- vin's was ready for him if he wanted it, but Melvin did not take any on that occasion or at any other time. The respondent contends that Melvin's poor health and weak eye- sight required his dismissal. Melvin was examined in July by the respondent's plant physician whose report showed him to be sound in all respects with the exception of bad teeth and trachoma of both eyes. The report rated his vision as 20/3011 in the right eye and 20/70 in the left eye. The physician testified that he recommended Melvin's dismissal because trachoma was contagious and he believed him to be "industrially blind," a term which he considered applicable to anyone whose vision rating for both eyes was inferior to 20/40. He testified that this figure was arrived at by averaging the vision of both eyes. He admitted that no definite method existed for de- termining "industrial blindness," that to his knowledge no State law established such a classification, and that determination of a vision rating for a person blind in one eye would be entirely a matter of the physician's personal judgment. Subsequent to his discharge, Melvin was examined by an eye spe- cialist, a dentist, and a physician. The dentist testified that Melvin's bad teeth had been extracted during the last 5 years, the last one being extracted during the summer Melvin was discharged. The dentist testified further that the remaining teeth would not affect his health. The physician testified that Melvin was in good physical condition and that a cursory examination of his eyes revealed no infection. The eye specialist testified that Melvin had been suffering from 11 The ratio indicates the relation of the actual eyesight to perfect vision , 20/30 meaning that the eye sees at 20 feet what a perfect eye would be able to see at 30 feet. 836 DECISIONS Ol NATIONAL LABOR RELATIONS BOARD ptosis (drooping eyelids) which had been substantially improved by an operation 5 years ago. The specialist found no evidence of any infectious condition nor any trace of such a condition. He stated that Melvin's vision was 20/30 for both eyes, which was considered average for a man of his age. Reports of the respondent's physician revealed two other employees with vision no better than Melvin's, one with 20/50 vision in both eyes and the second with no vision in the right eye and 20/30 vision in the left eye. Nevertheless, no recommendation for dismissal was made in either case. The only instance of an accident recited by the respondent to support its contention that Melvin was "Industrially blind" was the turning over of a gravel hopper by Melvin's crane. It is significant that Melvin was not reprimanded at the time, Uland explaining that the hopper was top-heavy and that the accident may have been caused by carelessness or poor judgment in adjusting the chains. Uland admitted, moreover, that the respondent made it a regular practice to shift an employee physically incapable of per- forming his accustomed duties to other work which he could perform and that this practice was not followed in Melvin's case. At the close of the hearing the respondent's attorney offered to pay for an examination of Melvin's eyes by a disinterested eye specialist and to reinstate him if the specialist so recommended. The Board's attorney refused the offer, stating he would rest Melvin's case upon the record. The hearing, as to Melvin, was principally concerned with the determination of whether or not he had been the subject of discrimination. The offer of the respondent can, of course, have no probative value. The respondent has been free to reinstate Melvin at any time that it became satisfied that his vision was not defective. No consent given or withheld by counsel for the Board or for the Union could restrict the respondent's privilege in this respect. Fur- ther, if Melvin was, in fact, the subject of discrimination he was entitled to have his case determined by the Board and receive an award of back pay to compensate him for his loss during the period of discrimination. We think it apparent from all of the evidence, and particularly from the failure of the respondent's physician to recommend the dis- missal of two employees with vision at least as bad as Melvin's, that Melvin's discharge did not result from any supposed visual deficiency. On the basis of all the facts, we are convinced that Melvin's dis- charge was in fact predicated upon his union activity. We find, therefore, that the respondent, by discharging Levi Melvin on August 12, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the Union, and interfering with, restraining, amid coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. VINCENNES STEEL CORPORATION 837 Julius Sievers. Sievers was one of the 10 employees who retained union membership after promotion of the stock-purchase plan. As noted above, 7 of these 10 had been discriminatorily laid off in April and were reinstated after a charge was filed with the Board. An eighth member, Vanwey, was the only union man to subscribe to the plan after solicitation by Uland. The discharge of Melvin, the ninth member, has been discussed above. Sievers, the tenth member, was employed as a fireman from July 17, 1936, until April 30, 1938, when he was transferred to various jobs in the plant yard. Several days prior to his transfer on April 30, Sievers was solicited by Uland to subscribe to the plan. He refused, stating that he did not want to sign a note for $1,000, as he owned property and did not care to be obligated on a note. Upon being solicited on other occasions, Sievers persisted in his refusal to purchase the stock, and subsequent to his refusal, Uland told both Sievers and Crawford to keep their auto- mobiles out of the respondent's garage, as it was reserved for "com- pany" men. Uland denied telling them that the garage was limited to the "company" men, but claimed that he warned the men not to put their cars in Uland's own stall. We do not credit this denial. Uland asserted that he transferred Sievers on April 30 for being asleep on the job. Prior thereto, Sievers' work as a fireman had been satisfactory. The respondent also contends that Sievers talked too much and that he was generally inefficient. Just prior to Sievers' actual discharge on September 6, Uland asked Burl Deem, who was then supervising Sievers' work, if Sievers had been loafing. Deem replied that he found Sievers' work satisfactory and that Sievers talked no more than the other men. It appears, moreover, that the stock- purchase plan was widely discussed during working hours, without anyone being disciplined as a result. From the foregoing facts and circumstances, it is apparent that the respondent used Sievers' alleged sleeping as a pretext for first transferring and later discharging him. We find that the respondent by discharging Julius. Sievers on Sep- tember 6, 1938, discriminated in regard to his hire and tenure of em- ployment, thereby discouraging membership in the Union, and inter- fering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The alleged discriminatory transfers The complaint alleged that union members laid off in April were discriminated against in the allotment of duties and overtime work after their reinstatement. The Trial Examiner concluded in his Intermediate Report, however, that the respondent had not discrimi- nated against these. employees in this respect. The Union filed no exception to this finding. Having reviewed the evidence, we agree 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Trial Examiner that there is insufficient proof of discrimi- nation against these men in regard to transfers and assignment of overtime work. Accordingly, we will dismiss the complaint in so far as it alleges `such discrimination. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section I above, occurring in connection with the operations of the respondent described in Section III above , have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist from further engaging therein . We shall also order the respondent to take cer- tain affirmative action which we deem necessary to effectuate the policies of the Act. We have found that the respondent induced its employees to subscribe to a stock -purchase plan in order to interfere with the exercise of their rights under the Act. The respondent con- tends that the Board is without power to enter any order affecting the stock-purchase plan for the reason that it would constitute an interference with contractual rights of stockholders not parties to the proceeding. The Trial Examiner, in his Intermediate Report, recommended that the respondent notify its employees that the pro- vision of the contract barring requests for increased wages was not enforceable and that the' ownership or lack of ownership of the respondent's stock would in no way affect any term or condition of employment with the respondent . The recommended order could not constitute an interference with any rights of stockholders but would result only in abrogation of an obligation unlawfully exacted from the employee subscriber. Accordingly, we will enter an order similar to that recommended by the Trial Examiner. The respondent contends that on grounds of policy, the Board should not interfere with the plan because it tends to create better relations between employer and employee . While measures fairly designed to minimize industrial strife must be regarded with favor, in this case the plan was designed to defeat collective bargaining which Congress protects as a means of minimizing strife. We are unable to agree that the present stock-purchase plan is compatible with the Act. We have found that the respondent by discharging Levi Melvin and Julius Sievers has discriminated in regard to hire and tenure of em- VINCENNES STEEL CORPORATION 839 ployment. We shall therefore order the respondent to offer these employees reinstatement to their former positions, and make them 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 he normally would have earned as wages from the date of his dis- charge to the date of the offer of reinstatement, less his net earnings 12 during such period. We have found that the respondent has discriminated in regard to the hire and tenure of employment of Andrew Eddleman, Kenneth Richardson, R. Virgil Wright, Russell Hall, Burl Deem, and Ray- mond Crawford by laying them off. Subsequently these men were reinstated. We shall order the respondent to make each of the men whole for any losses of pay they may have suffered by reason of the discrimination in regard to their hire or tenure of employment, by payment to each of them a sum of money equal to that which he would have earned as wages or salary during the period from the date of such discrimination to the date of reinstatement, less his net earnings during said period. Upon the basis of the foregoing findings of fact and the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 585, is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Andrew Eddleman, Kenneth Richardson, R. Virgil Wright, Russell Hall, Burl Deem, Raymond Crawford, Levi Melvin, and Julius Sievers, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By inducing its employees to subscribe to a stock-purchase plan and requiring such employees to agree to refrain from requesting wage increases, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. By interfering with, restraining, and coercing the employees in the exercise of the rights guaranteed in Section 7 of the Act, the n By "net earnin gs" is meant earnings less expenses , such as for transportation, room and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful lay-off 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 government or governments which supplied the funds for said work-relief projects. 247384-40-vol. 1 7 54 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act in regard to transfers of or assignment of overtime work to Andrew Eddleman, Kenneth Rich- ardson, R. Virgil Wright, Russell Hall, Burl Deem, and Raymond Crawford. 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 re- spondent, Vincennes Steel Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 585, or any other labor organization of its employees by discriminating in regard to hire or tenure of employment or any term or condition of their employment; (b) In any manner continuing, enforcing, or attempting to enforce the provision in its stock-purchase plan purporting to bar requests by employees for wage increases; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in con- certed activities, for the purpose of collective bargaining or other mutual aid or 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) Offer to Levi Melvin and Julius Sievers immediate and full reinstatement to their former positions, without prejudice to their seniority and other rights and privileges; (b) Make whole Levi Melvin and Julius Sievers for any loss of pay they may have suffered by reason of the respondent's discrimina- tion in regard to their hire and 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 during the period from the date of such discrimination against him to the date of the offer of reinstatement, VINCENNES STEEL CORPORATION 841 less his net earnings during that period; deducting, however, from the amount otherwise due to each of the said employees, monies received- by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects ; (c) Make whole Andrew Eddleman, Kenneth Richardson, R. Vir- gil Wright, Russell Hall, Burl Deem, and Raymond Crawford, for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period of his respec- tive discriminatory lay-off, less his net earnings during that period; deducting, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount, so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Notify each of its employees in writing that the provision of the stock-purchase plan dated April 27, 1938, purporting to bar any request by employees for changes in wages, is void and of no force and effect, and that the ownership or lack of ownership of the respondent's stock will in no way affect any term or condition of employment with the respondent; (e) Post immediately in conspicuous places in its plant in Vin- cennes, Indiana, notices to its employees, and maintain such notices for a period of at least sixty (60) days, stating (1) that it will cease and desist as aforesaid; (2) that its employees are free to become or remain members of International Association,of Bridge, Structural .and Ornamental Iron Workers, Local No. 585, affiliated with the A. F. of L. and that it will not discriminate against any employee because of membership or activity in that organization; (3) that an employee's ownership or lack of ownership of the respondent's stock will in no way affect any term or condition of employment with the respondent; (4) that the provision of the stock-purchase plan dated April 27, 1938, purporting to bar requests by employees for changes in wages is void and of no force and effect; (f) Notify the Regional Director for the Eleventh Region in writ- ing within ten (10) days from the date of this Order what steps it has taken to comply herewith. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the complaint be dismissed in so far as it alleges that the respondent has discriminated in the transfers of" and the assignment of overtime work to Andrew Eddleman, Kenneth Richardson, R. Virgil Wright, Russell Hall, Burl Deem, and Ray- mond Crawford, and that the complaint be dismissed without preju- dice in so far as it alleges discrimination against James Harness.