The Niles Fire Brick Co.

In the Matter of THE NILES FIRE BRICK COMPANY and UNITED BRICK WORKERS' L. I. U. No. 198 In the Matter of THE NILES FIRE BRICK COMPANY and UNITED BRICK WORKERS' L. I. U. No. 198 Cases Nos. C-9J8 and R-360, respectively.Decided December 28,1939 Firebrick and Refractories Manufacturing Industry-Inn,teerference, Restraint, and Coercion: refusing to meet with union organizer because of his affiliation ; expressing hostility to outside and preference for inside union, treating affiliated union leader and Union with contempt ; inspiring by such acts and attitudes an employee, related to general manager, to form an inside union ; attempting to wean employees from affiliated to an unaffiliated union by stressing an impossi- bility of collective bargaining with an affiliated union ; taking unprecedented action, in connection with shutting down plant , by paying off a week in advance of regular pay day and collecting badges, intending and causing employees to believe they were discharged because of their then current organization activ- ities; instructing employees to attend union meeting on company time and extending lunch hour for union meetings ; circulating petition against Board election-Strike : caused by respondent's unfair labor practices-Discrimination: refusal to reinstate striking employees who applied for reinstatement ; discharges and giving employees less work because of their union activity or membership and refusal to join company-dominated union ; demotion and discharge for giving testimony under Act ; charges of, dismissed as to certain persons-Company- Dominated Union: domination of and interference with formation and admin- istration ; intimidation and coercion to join ; meetings held during extended lunch hour and paid time ; formation instigated by employee related to general manager of Company ; disestablished as agency for collective bargaining-Unit Appropriate for Collective Bargaining: production and maintenance employees, excluding supervisory and clerical employees , mill police, watchmen , and time- keeper-Collective Bargaining : charges of failure . to, dismissed, upon failure to prove majority-Reinstatement Ordered: strikers and discharged employees ; application for : sufficient where strikers followed respondent's established prac- tice in seeking employment-Back Pay: awarded employees not reinstated and discharged employees with deduction for State , Federal, or municipal work relief and refund of such deduction to appropriate fiscal agent of such work -relief agency-Investigation of Representatives : petition for dismissed without preju- dice due to lapse of time since hearing. Mr. Max Johnstone, for the Board. Mr. Paul Z. Hodge and Mr. George W. Secrest, of Warren, Ohio, and Mr. Robert U. Bulkley, of Washington, D. C., for the respondent. Mr. Joseph L. Kovner; for the Union in Case No. R-362. Mr. W. F. Mac Queen, of Niles, Ohio, for the Intervenors and the Independent. Mr. Bliss Daffan, of counsel to the Board. 18 N. L. R. B., No. 98. 883 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION AND ORDER STATEMENT OF THE CASE On September 23, 1937, the United Brick Workers' L. I. U. No. 198, herein called the Union, filed with the Regional Director for the Eighth Region (Cleveland, Ohio) a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of The Niles Fire Brick Company, Niles, Ohio, herein called the respondent, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. On October 4, 1937, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Di- rector to conduct it and to provide for an appropriate hearing upon due notice. On October 22, 1937, the Regional Director issued a notice of hearing, copies of which were duly served upon the respondent and the Union. Pursuant to the notice, a hearing was held on November 1 and 2, 1937, at Warren, Ohio, before Thomas H. Kennedy, the Trial Examiner duly designated by the Board. At the beginning of the hearing a motion to intervene by Avery Tackett and James Matteo, ' two of the respondent's employees, acting on their own behalf and on behalf of certain other employees of the respondent, was granted by the Trial Examiner.' The Board, the respondent, the Union, and the Intervenors were represented by counsel and par- ticipated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hear- ing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. After the close of the hear- ing -the respondent and the Intervenors filed briefs in support of their objections and contentions at the hearing. The Board has reviewed the rulings of the Trial Examiner and finds that no preju- dicial error was committed. On November 15, 1937, the Union filed with the Regional Director a charge alleging that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1), (2), (3), (4), and (5) 1 This motion to intervene was also filed with the Regional Director and had been granted by him on November 1, 1937. THE NITLES FIRE BRICK COMPANY 885 of the Act. On January 14, 1938, the Board, acting pursuant to Article II, Section 37 (b), of its Rules and Regulations, ordered that the representation case and the case initiated by the filing of the charge be consolidated for all purposes. Upon the charge and amended charge, the Board, by the Regional Director, issued its complaint, dated February 28, 1938, against 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), (4), and (5) and Section 2 (6) and (7) of the Act. Respecting the unfair labor practices, the corn- plaint, as amended at the hearing, alleged in substance that the re- spondent: (1) fostered, encouraged, dominated, and interfered with a labor organization of its employees known as Brick Workers' Inde- pendent Organization, herein called the Independent; (2) discrimi- nated in regard to the hire and tenure of employment of 30 named persons, thereby discouraging membership in the Union; (3) dis- criminated in regard to the hire and tenure of employment of two of the aforesaid 30 persons because they gave testimony under the Act in Case No. R-362; (4) refused, at all times since July 15, 1937, to bargain with the Union as the exclusive representative of the employees in an appropriate unit, the Union having been designated as such representative by a majority of the employees in such unit; and (5) interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act : by the employment of labor spies, by deputizing some of its employees for the purpose of intimidating and coercing its employees, by dis- charging and threatening to discharge members of the Union, by threatening to discharge its employees if they did not join the Inde- pendent, by applying ridicule and derogatory names to the Union and members thereof, by discriminating against members of the Union in the matter of lay-offs and transfers to and within depart- ments in the plant, by talking against the Union and stating that it would not recognize the Union, by talking in favor of the Independ- ent and causing employees to believe that membership therein was necessary to continued employment in the plant, by committing a physical assault on an officer of the Union, by circulating a petition against an election to be held among the plant employees by the Board, which petition was also unfavorable to the Union, and by var- ious other acts, methods, and means. A copy of the complaint, accompanied by notice of hearing, was served upon the respondent, the Union, and the Independent. On March 7, 1938, the respondent filed its answer, admitting certain allegations concerning its business, denying the alleged unfair labor practices, and setting forth certain affirmative defenses. 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a hearing was held from March 10 through 17, 1938, at Niles, Ohio, before James M. Brown, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and participated in the hearing.2 At the beginning of the hearing the respondent objected to the consolidation of the two cases, moved to dismiss for want of jurisdiction, and requested a continuance of the hearing. The Trial Examiner over- ruled the objection and denied the motions. The respondent also sought to introduce further testimony to amplify the testimony in Case No. R-362 in regard to its business. The Trial Examiner refused to admit such further testimony and the respondent made an offer of proof. The above rulings were not prejudicial and are hereby affirmed. Even if the order of consolidation was improper, the re- spondent was not prejudiced thereby, since the findings of the Board, set forth below, relating to the unfair labor practices alleged in the complaint in Case No. C-958 are not based on any testimony intro- duced in Case No. R-362. In regard to the business of the Com- pany, the record in Case No. R-362 was introduced and made part of the record in Case No. C-958. The additional testimony sought to be introduced by the respondent, and set forth in its offer of proof, was not for the purpose of contradicting the evidence in Case No. R-362, but for the purpose of amplifying the evidence appearing in Case No. R-362 and made part of the record in Case No. C-958.' The Board hereby accepts as true the matters set forth in the respondent's offer of proof. On motion of counsel for the Board made during the course of the hearing the complaint was amended to include certain additional employees within the allegations charging discrimination in regard to hire and tenure of employment. A corresponding motion by the respondent to amend its answer to deny the allegations of the com- plaint as to these additional employees was granted by the Trial Examiner.4 Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the Board's case the Trial Examiner granted motions by counsel for the Board to amend the complaint to conform to the proof and to dismiss the allegations of discrimination as to six employees named therein.b The respond- 2 Although the Independent was served with a copy of the complaint, accompanied by notice of hearing, it did not appear at the hearing. 8 In connection with the introduction of further testimony concerning the respondent's business counsel for the respondent stated at the hearing that his "purpose here is not to attempt to contradict testimony given in the former case [ Case No. R-362] but to amplify it by the giving of additional figures so that the entire picture may be before the Board." 4 Counsel for the respondent expressly waived any objection to the amendment to the complaint in this respect upon being granted the right to amend the answer. 5 Fred Tomlin , Robert Newell, William Green , Cliff Clevinger , Lawrence Villio, and Peter DeFabio. THE NILES FIRE BRIC'R COMPANY 887 ent also renewed its motion to dismiss for want of jurisdiction. This motion was overruled. During the course of the hearing other rulings were made by the Trial Examiner on motions and on objections to the admission of evidence. The Board has reviewed all of the rulings of the Trial Examiner and finds that no prejudicial error was com- mitted. His rulings are hereby affirmed. On September 12, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the respondent, the Union, and the Independent, finding that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (2), (3), (4), and (5) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from its unfair labor practices; that 21 employees found to have been discrim- inatorily discharged within the meaning of Section 8 (3) of the Act, 2 of whom were also found to have been discriminatorily discharged within the meaning of Section 8 (4) of the Act, be reinstated with back pay covering the periods of their respective discrimination in employment; that the respondent withdraw all recognition from and completely disestablish the Independent as a representative of em- ployees of the respondent; that the respondent bargain with the Union as the exclusive representative of the employees in an appro- priate unit; that the complaint be dismissed in so far as it alleged discrimination against 9 employees; and that the petition for investi- gation and certification filed by the Union be dismissed. On October 15, 1938, the respondent filed exceptions to the Inter- mediate Report and the. record. Pursuant to notice a hearing for the purpose of oral argument was held before the Board at Washington, D. C., on November 29, 1938. The respondent, the Union, and the Independent were represented by counsel and participated in the argument. At the oral argument the Board granted the parties per- mission to file briefs. Thereafter the respondent and the Independent filed briefs which the Board has considered. On July 11, 1939, pl}r- suant to notice, another hearing for the purpose of further oral argu- ment was held before the Board at Washington, D. C., Chairman J. Warren Madden and Mr. William M. Leiserson present. The re- spondent was represented by counsel and presented its argument. A stenographic report was made of this oral argument and a transcript thereof has been considered by Board Member Edwin S. Smith. Pur- suant to leave granted by the Board, the respondent, on November 20, 1939, filed a brief which the Board has considered. The Board has reviewed all the exceptions to the Intermediate Report and record and finds them without merit except as they are consistent with the find- ings, conclusions, and order set forth below. 283029-41-vol. 18-57 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the consolidated cases,c the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is an Ohio corporation engaged in the manufacture, sale, and distribution of refractories, particularly firebrick. The re- spondent's office and plant are located at Niles, Ohio, which is only a few miles from the boundary line between Ohio and Pennsylvania. The respondent operates clay mines in both Ohio and Pennsylvania. The principal raw materials used in the manufacture of its product are flint, fire clay, plaster clay, silica gravel, and lime. The respond- ent uses coal for the purpose of firing its furnaces. During a period of 12 months the respondent spent approximately $275,000 in the pur- chase of such raw materials, including coal. Sixty per cent of these materials, including coal, purchased by the respondent are shipped to its plant from points outside Ohio. Coal, which represents 25 per cent of the respondent's total purchases, is purchased from a company in Ohio, but is sent to the respondent from such company's mines in Pennsylvania. The total sales of the respondent's products during a period of 12 months amounted to approximately $600,000, of which 10 per cent represents shipments to points outside Ohio. This 10 per cent of the respondent's products are sold and consumed in a district outside Ohio known in the steel industry as the "Pittsburgh District." The remaining 90 per cent of its products are sold in what is commonly known as the Mahoning Valley District, located in north- eastern Ohio, embracing the cities of Youngstown, Niles, and Warren. The finished products of the respondent are used almost entirely by the steel and glass industries. II. THE ORGANIZATIONS INVOLVED United Brick Workers' L. I. U. No. 198, is a labor organization affiliated with the Committee for Industrial Organization." It admits e As stated above, the findings of fact relating to the unfair labor practices are not based on any evidence introduced at the hearing in Case No. R-362 on November 1 and 2, 1937. In its brief the respondent admits that 60 per cent of its raw materials are shipped to it from points outside Ohio, and that it ships 10 per cent of its finished products outside Ohio, adding the following description : The true situation with respect to the company [respondent ] is that it has been established in the midst of the steel manufacturing and fabricating industries of the Mahoning Valley, and supplies the requirements of fire brick for these industries. There is no other manufacturer of refractories in this locality, and all but 10 per cent of their [the respondent's] product is consumed by such companies as The Carnegie-Illinois Steel Company, The Republic Steel Corpora- tion, and The Youngstown Sheet and Tube Company, with plants located in Youngstown, Niles, and Warren, Ohio. 8 Now the Congress of Industrial Organizations. THE NILES FIRE BRICK COMPANY - 889 to membership all the production and maintenance employees of the respondent, excluding supervisory, clerical, and office employees, and timekeepers and watchmen. Brick Workers' Independent Organization is an unaffiliated labor organization admitting to membership production and maintenance employees of the respondent, excluding supervisory and office em- ployees. Steel Workers' Organizing Committee is a labor organization affil- iated with the Committee for Industrial Organization.° During May and June 1937 it admitted employees, of the respondent to member- ship. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; domination, interference with, and support of the Independent 1. Events leading to the strike of July 19, 1937 Organization of the respondent's employees began late in May or early in June 1937, when two organizers of the Steel Workers' Organizing Committee, herein called the S. W. 0. C., entered the respondent's plant at noon, while the employees were not engaged at their work, and began signing them up for membership in the S. W. O. C. Shortly thereafter the respondent placed watchmen at the, gate to its plant. On or about June 15 the respondent shut down its plant, paid the employees off a week in advance of their regular pay day, and took from them their pay-roll identification badges. The respondent had never in the past taken such action in connection with shutting down its plant. This unprecedented action, coming at a time when the S. W. O. C. had begun organizing the employees and when the respondent knew that the employees were organizing, caused the employees to believe that they had been permanently discharged. . Two days after the shut-down approximately 40 employees con- gregated at the gate to the respondent's plant. A committee of em- ployees who were S. W. O. C. members requested a conference with the respondent. When the committee was granted an audience with P. J. Sheehan, the respondent's general manager, the committee asked that the respondent enter into an agreement providing that all the employees be returned to their jobs when the plant reopened and that work be divided equally among the men. After two conferences on successive days, John Clingan, vice president of the respondent, authorized Sheehan to enter into an agreement embodying the terms P Footnote 8, supra. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requested by the committee. On June 17, 1937, the respondent, acting through Sheehan, and the committee entered into the following agreement : JUNE 17, 1937. We the majority of workers in the Niles Fire Brick Co., due to the fact that we had our badges taken away, and were paid off in full one week in advance, feel that, we were discharged. We ask that the management sign this agreement, 1. As each department begains (begins) operation the men go back to work on the jobs they had prior to the lay-off. 2. That all work done in each department be divided equally among the workers of the department. (Signed Management) THE NILES FIRE BRICK COMPANY. By P. J. SHEEHAN, Gen. Mgr. Committee : THOMAS LIBERATORE. GEORGE BAKO. Louis GENN. PAUL YARWOOD. WILLIAM GREEN. ALFRED WHITT. A few days thereafter the respondent's plant resumed operations and all the employees were returned to their jobs. The respondent's explanation of the shut-down, the paying off of the men a week in advance of their regular pay day, and the taking up of the badges, is that in June many of its customers were can- celing orders because of labor unrest in the Mahoning Valley, that it decided to close down the plant for an indefinite period, that many employees resided in Kentucky and desired to return home after the shut-down and requested "drags" or advances on their wages, that the respondent decided to pay them a week in advance of their regular pay day, and that because each employee had 50 cents de- posited on his badge, it was decided to take up the badges and refund the deposit. This reason for taking up the. badges was testified to by Sheehan. Clingan, however, testified to a different reason, namely, that the respondent intended to install a new system. While there is evidence tending to show that the respondent shut down its plant for the purpose of discouraging membership in a labor organization, upon the whole record we do not so find. Upon all the evidence we do find, however, that the respondent took the unprecedented action of paying the employees off a week in advance of the regular pay day and of collecting their identification badges for the purpose of dis- couraging membership in a labor organization by causing the em- THE 1\7LES FIRE BRIOK dOMPAIQY 891 ployees to believe that they had been discharged because of their then current organizing activities. On June 28, 1937, the organization consisting of employees who had signed up in the S . W. O. C. was chartered by the Committee for Industrial Organization 10 as the Union herein. Organization of the respondent's employees by the Union continued after the plant re- sumed operations and, on or about July 8, the Union attempted to arrange a conference with Clingan . The Union did not succeed in this attempt and, instead , met with Sheehan, to whom it presented a draft of a proposed contract . Walter Payne, an organizer for the Union, accompanied the committee . Thomas Liberatore, an em- ployee and president of the Union, informed Sheehan that the Uilion represented a majority of the employees and desired that the re- spondent consider the contract . Sheehan took the contract and advised the committee to return later for his answer. As the com- mittee was leaving, Sheehan "nudged" Paul Yarwood , an employee and recording secretary of the Union, and told him to "bring your committee back. Mr. Clingan wants to see you, but he doesn't want to see Mr. Payne." The committee returned the same day , without Payne, and met with Clingan . Members of the committee asked Clingan why he was unwilling to meet with the union organizer and Clingan replied that he would not talk to a "C. I. O. organizer." After some discussion concerning business conditions and the wages paid to the respondent's employees as compared with wages paid in similar industries in other localities , Clingan stated "forget the C. I. 0." and then added, "I tell you, why don't you boys form some kind of a union here without no outside connections . I will consider going along with that." 11 The committee rejected this exhortation. Clingan then asked the committee if the proposed contract provided for a wage increase, and upon being informed that it did , stated that he considered it unfair to the respondent because an increase had been granted about 2 months prior to that time . Clingan requested a few days to consider the contract and the meeting adjourned. The parties agreed to confer further the following Monday. 10 Now the Congress of Industrial Organizations. 11 Clingan denied that he made the remark about forming a union without "outside connections." His own testimony shows that this was the only time lie met with the union committee prior to the strike and he offered no explanation as to why he was not present at the other conferences when the committee met with Sheehan. Sheehan, in answer to a question by counsel for the respondent whether he "ever made a statement to the effect that if they wouldn't bring in any outside organizer, you might be able to get together with them," replied that he had not. We do not regard this as an effec- tive denial. In any event, it is undisputed that the committee, including Payne, sought to meet with Clingan but met with Sheehan. and that it returned and met with Clingan, without Payne. The explanation given by the witnesses called by the $oard is straight- forward and convincing, and is further amply supported by the activities engaged in subsequently by the respondent, set forth below. 892 DECISIONS Or NATIONAL LABOR RELATIONS BOARD On or about the same day as the above conference with Clingan, July 8, Simon Gagany, the respondent's labor foreman and ad- mittedly a supervisory employee, approaching Liberatore, the presi- dent of the Union, and said, "Tom, why can't you form a company union, an independent union. The company will go along with you better." The Monday following the meeting with Clingan, the union com- mittee and Payne met with Sheehan. Clingan was not present. Payne removed from the contract the sheet containing the provision for an increase in wages and suggested to Sheehan that they dis- cuss the proposed contract by paragraphs, and to "throw out" and "talk over" such paragraphs as could not be agreed upon. Sheehan read the last two paragraphs of the proposed contract which pro- vided for a check-off and informed Payne that the procedure was useless, "we are not going to sign a contract, I won't sign any con- tract." Sheehan then requested 2 weeks to look over the proposed contract and to submit it to an attorney and to the owners of the plant. Payne agreed to give him 8 or 10 days to consider the pro- posed agreement. The union committee returned on July 19 for the respondent's answer. Sheehan advised the committee that the respondent would not sign the proposed contract. Payne suggested eliminating any provision objectionable to the respondent or that the respondent draft its own contract and sign it. To these suggestions Sheehan replied, "No, I don't want to sign the contract, I won't sign." Payne then stated, "It will be just too bad because the boys will go strike," and the meeting ended. That night the Union held a meeting and voted to strike. Picket- ing of the respondent's plant began immediately. The next morn- ing, July 20, all the employees were on strike. It is plain from the facts set forth above that from the very be- ginning of self-organization among the employees, the respondent adopted an attitude of hostility to the Union, which it made known to the employees, and that its actions were designed to interfere with and discourage membership in the Union and to canalize the desires of the employees for organization toward a union with no ."outside connections," which the respondent preferred. It is also plain that at the conferences between the Union and the respondent, the. re- spondent made it unmistakably clear that the respondent would not bargain with the Union solely because of its affiliation with the C. I. 0., irrespective of whether or not the Union represented a majority of the employees. The respondent's requests for additional time were plainly dilatory measures, a fact borne out by the con- ferences themselves and Sheehan's testimony that he did not know THE NILES FIRE BRIOK COMPANY 893 whether or not he ever referred the proposed contract to the owners of the plant, in spite of the fact that he requested time for that specific purpose. We find that by paying the employees off a week in advance of the regular pay day and by taking up their badges when the plant shut down, by Clingan's refusal to meet with the union organizer solely because he was a C. I. 0. organizer, by expressing hostility to the Union, by expressing preference for an inside union, by attempting to wean the Union away from its C. I. 0. affiliation and encouraging the formation of an inside union, by impressing the employees with the impossibility of achieving collective bargaining as long as the Union retained its affiliation with the C. I. 0., and by other acts set forth above, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in the Act. We further find that, although the strike was precipitated by the respondent's refusal to enter into a contract, the above unfair labor practices were a substantial factor in causing the strike which began on July 19, 1937. 2. Events during the strike of July 19 and thereafter As was to be expected, the unfair labor practices of the respondent, set forth above, were followed by a movement to form an "inde- pendent" or inside union. Shortly after the beginning of the strike, two employees, James Matteo, son-in-law of General Manager P. J. Sheehan, and Avery Tackett, began soliciting the striking employees to organize an inside union and return to work. Matteo and Tackett then met with Clingan, informed him that the men on the picket line would like to go back to work, and inquired whether an independent, or inside, union would be considered by the respondent. Clingan replied that "he would consider anything." Either just before or shortly after the above conference with Clingan, Matteo approached Liberatore, president of the Union, and suggested submitting to the respondent the matter of executing a contract with an "independent" union. Liberatore agreed with the reservation that the respondent also agree that the employees have the right to "turn this [contract] over to the C. I. 0. at any time." Matteo arranged a conference be- tween Sheehan and a committee composed of Matteo, Tackett, Alex Sabo, and Yarwood, the latter two being members of the union com- mittee. This conference took place in July. Sheehan rejected the proposal upon its submission to him. Later the same day Liberatore and Payne went to the respondent's office and tried to arrange a conference with the respondent, but the respondent refused to meet 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with them because they were president and, organizer of the Union, respectively. The strike was officially ended by the Union on August 1, 1937. A substantial number of employees had returned to work on July 31, but the majority applied for work on August 2. A number of members of the Union, including its officers, were not given work on August 2, when the plant resumed its normal op- erations. On or about August 14 two members of the Union, Alex Sabo and Anthony Villio, contacted Sheehan at the gate to the plant and informed him that they had been sent by the president of the Union as a committee to see if an agreement could be made whereby the employees who were not returned to work after the strike ended would be reinstated by the respondent. Sheehan replied, "Don't come over here as a committee; come here as an individual and I might talk to you. Your organization is broken up and your offi- cials have resigned and I don't ' see where you can vouch for any man." 12 The Union was functioning at this time and its officers had not resigned. Sabo and Villio transmitted Sheehan's reply to the union officers who then called the United States Department of Labor and arranged for a conciliator, Thomas Reichart, to come to Niles to confer with the respondent concerning the reinstatement of the union members who had not been returned to work. On August 16, 17, and 18 Reichart held conferences attended by the union committee, Clingan, and Paul Z. Hodge, the attorney representing the respondent in the present proceedings. At the August 17 conference Clingan referred to Whitt and Yarwood, two employees on the union com- mittee, as "rats and nuisances to the Company," whereupon Reichart and the union committee "walked out" of the meeting.13 At the August 18 conference the respondent agreed to reinstate all the union members who had not been given employment at the end of the strike, with the exception of Thomas Liberatore, John Toth, Herman Estes, and Lawrence Villio. With the exception of these four employees, all the union members seeking reinstatement were given employment on August 18 or within 2 or 3 days thereafter. John Toth, Herman Estes, and Thomas Liberatore were subsequently reinstated on or about September 1, 1937. 13 Sabo and Villio both testified to the above statements by Sheehan . Sheehan denied making these statements , but admitted that Sabo approached him and requested a con- ference as chairman of a union committee and that he refused to confer, stating "there ain't anything to talk about ." We are not impressed with Sheehan's testimony. In regard to this incident the Trial Examiner stated in his Intermediate Report : "the undersigned refuses to believe Sheehan in preference to Sabo and Villio; in fact, Shee- han's testimony and demeanor on the stand was such as to warrant giving his testimony little consideration." 18 At the hearing Clingan testified that his remarks were not intended to refer to Whitt and Yarwood . We are satisfied from the manner in which the union committee and Reichart reacted to Clingan's remark, and from the record as a whole, that it was directed at Whitt and Yarwood. THE NILES •FIRE BRICK COMPANY 895 Alex Sabo, who with Villio had been refused a conference in regard to reinstatement on August 14 by Sheehan because they had not come as individuals but as a union committee, asked Sheehan on August 20 whether he could go back to work. Sheehan told him that he was not in "the right frame of mind to come back" and to go home and "cool off a bit." The next morning, August 21, he saw Sheehan again and told him he was "sorry for blowing off, or hav- ing anything to do with union activities, and things. like that." Sheehan replied, "all right, Alex, I will take you back. You know you can't get anywhere by coming in here as a group. If you talk for yourself, you will get somewhere." Sabo returned to work that day. About 3 weeks after the termination of the strike further steps were taken to organize the inside union which was to become known as the Independent. Tackett and Matteo, General Manager P. J. Shee- han's son-in-law, both of whom had sought during the strike to induce the Union to drop its C. I. O. affiliation and enter into a con- tract with the respondent as an inside union and had arranged the meeting with Sheehan for that purpose, obtained contributions of $1.00 each from two other employees, Guy Wallace and Aubrey Sheehan, son of P. J. Sheehan, to assist in having membership cards printed. After the cards were obtained, these four employees began soliciting the employees during working hours to join the Inde- pendent. After many employees had signed Independent cards, Mat- teo and Tackett obtained a conference with Clingaii in the latter part of August and again asked him whether the respondent would consider a contract with the Independent. We find that the follow- ing testimony of Matteo states Clingan's attitude toward Matteo's incipient independent union both at this time and also before the strike : Q. Did he tell you that he would consider an independent contract? A. Yes; he took the same position he took before the strike was on. Q. What was that position, that he would deal with you? A. That he would deal with us; he wouldn't refuse us. On or abbut October 27, 1937, a notice appeared in the daily paper at Niles concerning the hearing in Case No. R-362 (held on Novem- ber 1 and 2, 1937) on the petition for an investigation and certifica- tion of representatives filed by the Union. On October 27 or 28 James McCormick, a machinist and also a son-in-law of General Manager P. J. Sheehan, started the circulation among the employees of a petition stating in substance that the signers did not want an election. Matteo, Tackett, and others solicited employees to sign 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this petition. The petition was introduced in the hearing of Case No. R-362 on November 1 by Matteo and Tackett, who intervened in behalf of themselves and the signers of the petition. Matteo and Tackett were represented at that hearing by W. F. McQueen, an attorney who later assisted in the formation of the Independent. The .drive to form the Independent intensified after the hearing in Case No. R-362 on November 1 and 2. Late in November or early in December, Tackett, Matteo, Wallace, and Aubrey Sheehan began soliciting the employees to join the Independent. Most of the solici- tation took place during working hours on plant property. At times the solicitation was accompanied by a threat that an employee would lose his job if he did not join the Independent. Simon Gag- any, the respondent's .labor foreman, also assisted in the membership drive of the Independent 14 In December the Independent held a meeting at 8 p. in. at a tav- ern in Niles known as the "Landmark." The customary lunch period for the night shift was a half hour, beginning at 8: 30 and ending at 9 o'clock. On the night of the Independent meeting the whistle signaling the beginning of the lunch period was blown by the re- spondent at 8 o'clock instead of 8:30, the usual time. When the whistle was blown, Benny Hiscox, a machinist in charge of the mechanical operations of the brick presses at night, went through the plant and announced that the employees could attend the Independ- ent meeting during the extra time given for the lunch _ period, but would have to make up the time. A number of employees attended this meeting. The respondent blew the whistle again at 9 o'clock, signaling the end of the lunch period. McQueen, the attorney who represented Matteo and Tackett in Case No. R-362, was present at this meeting and instructed the employees present concerning the process of organization. Thereafter a committee of the Independent drafted bylaws which were adopted at a meeting held at the "Land- mark" either in January or February 1938. This meeting was held at 2 o'clock on a Sunday afternoon. Matteo, General Manager P. J. Sheehan's son-in-law, was elected president of the Independent and other officers were also chosen. Toth, a kiln fireman, testified that Foreman Gagany instructed the men working under him at, the time of the Sunday meeting to attend the meeting, and that those who at- tended were paid by the respondent for their regular 6 hours of work. Gagany denied that he gave any such instruction and tes- tified that only three men, all kiln firemen, were working on the Sunday afternoon in question; that the shift changed at 3 p. in. and the three men working were replaced by three others; and that none 14 The activities of Matteo, Aubrey Sheehan, and Gagany are set forth in greater detail below after the narration of the course of events. THE NILES FIRE BRIOK COMPANY 897 of the men was absent from his employment at any time during the day. In view of other activity of Gagany in behalf of the Inde- pendent and the record as a whole, we do not credit his denial and find the facts to be as testified by Toth. After the formal organization of the Independent, no dues were collected, although it appears that the bylaws provided for dues. Except for the two meetings with Clingan mentioned above, it does not appear that there were any attempts by the Independent to bar- gain with the respondent. Wallace testified that McQueen had not been paid for representing the signers of the McCormick petition in Case No. R-362 or for assisting in the formation of the Independent, and that no bill had ever been presented for his services. Matteo tes- tified that 177 of the respondent's employees were members of the Independent at the time of the hearing in Case No. R-362. The Union had two more meetings with the respondent. On November 27, 1937, the union committee, accompanied by one An- thony, an organizer for the Union from Akron, Ohio, met with Sheehan and several other officials of the respondent. Anthony stated, in effect, that the purposes of the meeting were to discuss working conditions, to engage in collective bargaining with the respondent, and to create a more harmonious feeling between the Union and the respondent. Sheehan replied in substance that these were not the purposes of the meeting, that the meeting was one of individuals to discuss grievances, and that the respondent would take "the same stand we did at first" and would not bargain collectively with the Union. After some discussion between Liberatore and Sheehan as to whether the respondent had abided by the terms of the agreement of June 17, Liberatore made a remark resented by Sheehan, who thereupon ordered Liberatore to leave the meeting. Liberatore departed and shortly thereafter the meeting ended. Paul Yarwood was elected president of the Union in January 1938, and shortly after his election saw General Manager Sheehan in an effort to obtain a conference for the purpose of securing a "peaceful settlement" of the charges of unfair labor practices which the Union had theretofore filed with the Regional Director. When Yarwood stated his purpose, Sheehan replied, "I can't consider it at all. We do [sic] want anything to do with you." The Union made no further efforts to confer with the respondent. It is necessary at this point to consider the activities of •Matteo, Aubrey Sheehan, and Foreman Gagany in behalf of the Independent and the respondent's responsibility for these activities. James Matteo was the leader of the movement to form the' Inde- pendent and became its president after its formal organization. As stated above, he is a son-in-law of General Manager P. J. Sheehan. 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He was employed as a bricklayer and his monthly earnings were- more than those of the average production employee. Matteo joined the Union in the latter part of May. He was not active in the Union, attending only one meeting, the one on July 19, at which the strike vote was taken. At this meeting Matteo was the leader in the opposing of a strike by the Union. It is plain that Matteo began his activities in opposition to the Union and in favor of an inside union because he knew that the respondent desired such a movement. He knew that just prior to the July 19 strike Clingan had stated to the union committee that he would consider going along with a union without "outside connections." In this respect Matteo testified as follows : Q. Mr. Pasha testified here that some time in July, before the strike, that there was talk about a C. I. 0. contract and I put down, around Kiln 25, that James Matteo told him that Mr. Clingan would sign if he would take the contract out of C. I. 0. Do you remember having any conversation with Louis Pasha? A. I don't remember any such thing. Q. Do you recall at any time before the strike, ever making such a statement? A. I do recall a committee, now, if I am not mistaken, I heard something to that effect, about the time Mr. Clingan had a con- versation with Tom Liberatore in the works office that same day I believe I heard something about what went on in that room and I believe it was something to that effect.15 That he was inspired to instigate a movement to return to work and to form the Independent, an inside union, by his knowledge of the respondent's desire in the matter is shown by his approaching Libera- tore shortly after the strike began and proposing that the Union drop its C. I. 0. affiliation and enter into a contract with the re- spondent as an inside union, a proposal identical with the one Clingan made to the union committee. Moreover, Matteo's easy access to the respondent, particularly Clingan who indicated to Matteo that he would deal with a group without "outside connections," is in marked contrast with the union committee's reception by Clingan and P. J. Sheehan. This of itself shows that the respondent encouraged his activities 18 16 Italics supplied. 1e This finding is readily apparent when the respondent 's treatment of Matted and his associates is contrasted with the contemptuous treatment meted out to the Union by the respondent , namely : Clingan's refusal to meet with the Union with its organizer present ; Clingan's reference to two members of the union committee as "rats and nuisances to the Company" ; Sheehan's statement to Sabo and. Villio, who approached him as a union committee, "Don't come over here as a committee ; come here as an indi- vidual and I might talk to you . Your organization has broken up and your officials have resigned and I don't see where you can vouch for any man ."; and Sheehan's state- ment to Yarwood that "we don 't want anything to do with you." THE MILE'S FIRE BRIOK COMPANY 899 Because his activities were in conformity with the respondent's known hostility to the Union and its desire for an inside union, Matteo was able to, and did, use his relationship as son-in-law to General Manager P. J. Sheehan to coerce employees into joining and supporting the Independent . Thus about the middle of September Matteo went to the home of John Toth, kiln fireman , and requested him to sign up with the Independent. Toth objected to signing be- cause of his membership in the Union , whereupon Matteo stated that he "would like to fix me up so I get my steady job back." Toth signed, upon Matteo's promise that he would see the management about getting Toth regular employment . On October 29 Matteo threatened Alex Miller , an employee, with the loss of his job if he did not sign .up with the Independent . Miller refused to sign and was discharged that day.17 When the petition in opposition to a Board election was circulated in October , Wallace and Tackett brought the petition to Joe Villio, an employee, at his home. 'He refused to sign it. Later the same day Tacked returned with Matteo. Matteo asked Villio to sign the petition and when Villio refused, Matteo stated, "Well, later on when things boom, don't say we didn't come around and tell you to sign it." General Manager P. J. Sheehan testified that he did not know of Matteo's connection with the Independent until shortly after Matteo was elected its president in January . This testimony is wholly incredible. Matteo was a known leader in the movement to form the Independent, had met with Clingan twice in the interest of the Independent , once during the strike and once in August, and had met with Sheehan in July, along with Sabo and Yarwood, con- cerning the execution of an "independent contract" with the Union. In view of the above facts, Sheehan 's position with the respondent, and the notoriety of Matteo 's leadership in the movement to form the Independent, we find that Sheehan from the outset knew of Matteo's connection with the Independent and took no steps to prevent Matteo from using his relationship with Sheehan to coerce employees into joining the Independent. Moreover, Matteo had dinner every Sunday with P. J. Sheehan , and there was no lack of opportunity for the two men to discuss Matteo's role in the Inde- pendent. We do not credit the testimony of Sheehan and Matteo that they never discussed union affairs at the Sunday dinners. We find that the respondent's known hostility to the Union, and its preference for an inside union, expressed by the respondent's words and actions, inspired Matteo to take the leadership in forming the Independent, that the respondent encouraged Matteo's activities 17 See subsection B, infra, for our finding that Miller was discharged because of his refusal to join the Independent and because of his membership and activity in the Union. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and at the same time discouraged union activities, and that the re- spondent permitted Matteo to use his relationship to P. J. Sheehan to invest his activities with coercion and thereby intimidate employees and achieve the results desired by the respondent. We find that the respondent is responsible for Matteo's activities?8 Aubrey Sheehan was one of the active leaders in the formation of the Independent. He is the son of General Manager P. J. Sheehan and was employed as an engineer in the respondent's plant. Like Matteo, Aubrey Sheehan used his relationship to the general man- ager to coerce employees into joining the Independent. He also used his superior position as engineer for the same purpose. In December Aubrey Sheehan asked Carmen Villio, a member of the Union, to join the Independent. Villio refused, whereupon Au- brey Sheehan informed him that if he did not sign up with the Inde- pendent, he would not work. Aubrey Sheehan approached Mike Infante, an employee, in the boiler room of the respondent's plant and asked Infante to sign a membership card in the Independent. Infante replied, "to hell with you and the Independent. I am not signing nothing." Thereafter Infante was laid off. This dismissal was later brought up during the course of a conversation between several employees and Aubrey Sheehan. One of the employees re- marked that they had better join the Independent "or else be out." At this point Aubrey Sheehan stated, "That is right, you know what Mike Infante got for not having joined the union [Independent] and blowing off about the union, and keeping other men from joining." On another occasion Aubrey Sheehan asked two other employees to sign membership cards in the Independent, stating that otherwise they "would probably get what Mike Infante got." Aubrey Sheehan was a very evasive witness and his testimony was obviously colored in an effort to discredit the Union. He testified that he was the first employee to become a member of the Union, that he was active in it, and that before the strike he became disgusted with the Union because he did not believe in "paying tribute, to the C. I. 0." or that "we should pay money to John Lewis." Aubrey Sheehan admitted that he solicited members for the Independent, but denied that he used coercion in so doing. On the other hand, he testified that he put "pressure" on the employees to join the Union. Aubrey Sheehan testified that he applied "pressure" in the following manner : Q. Is there anything else? That is quite a lot. A. I used to say to my fireman every day, "I will fix you, so that you will lose your job." 18 International Association of Machinists T. National Labor Relations Board, 110 F. (2d) 29 (C. A., D. C.). THE NILES FIRE BRICK COMPANY 901 Q. What did you do about that? How did you work it? How did you think you could make a man lose his job? A. He didn't know any better. He didn't understand English and those were the kind of guys you work with . They didn't know whether they were living or not. Q. You mean you could go to your employer and convince him that this man was not a good employee? A. Yes; buck him. Q. Tell me what "buck" is. A. If the boss would come down there, I could say : "This fel- low did this and that." I was his boss ; I was over him as an engineer. Q. And the employer did take your word for it? A. Sure ; I was the engineer. The Union was affiliated with the C. I. 0. from its inception. The reasons given by Aubrey Sheehan for his "disgust " with the Union existed at the time he joined it. We are satisfied from Aubrey Sllee- han's activities that he did not join the Union as an employee inter- ested in collective bargaining , but to be in a position to create dissen- tion from within and to cripple the Union in its activities . In view of this and the fact that he was a leader in the formation of the Inde- pendent and had solicited- members in its behalf, we And that the technique set forth above was used by him in coercing employees to join the Independent and not the Union, and that he testified that he applied "pressure" to employees to make them join the Union for the purpose of discrediting the Union. P. J. Sheehan testified that he did not know of Aubrey Sheehan's connection with the Independent until the hearing . This testimony is wholly incredible. Aubrey Sheehan testified that on one occasion his father rebuked him and told him that he was not a "boss" and to "quit bothering the men." In regard to the occasion for this rebuke , Aubrey Sheehan further testified, "Well, I had been bothering the men for this Independent, that is, I was agitating them a little bit , not much." Aubrey Sheehan's testimony shows that this incident occurred in November or December 1937 , during the active membership campaign of the Independent . We find that P. J. Sheehan had knowledge of his son's activities in behalf of the Independent long prior to the time of the hearing. We further find that this rebuke of Aubrey Sheehan did not cause him to cease his activities in behalf of the Independent and that the respondent took no effective steps to stop these activities. Moreover, P. J. Sheehan and Clingan were themselves engaged in a course of conduct designed to destroy the Union and foster the Inde= pendent. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent contends that Aubrey Sheehan is not a supervisory employee. We think that Aubrey Sheehan's testimony set forth above establishes that men work under him, and that although he may not have the power to discharge, he has the power effectively to recommend the discharge of employees under him. We find that Aubrey Sheehan is a supervisory employee. As in the case of Matteo, we find that Aubrey Sheehan's activities in behalf of the respondent were inspired by the respondent's known hos- tility to the Union and preference for an inside union, that the re- spondent encouraged his activities and permitted him to use his super- visory position and relationship to General Manager P. J. Sheehan to coerce the employees into joining the Independent. We find that the respondent is responsible for Aubrey Sheehan's activities. Simon Gagany is the respondent's labor foreman. The respondent admits that he is a supervisor. As stated above, on or about July 3, Gagany advised Liberatore, president of the Union, to form an in- side union and that if he did so the respondent "will go along with you better." Toth, an employee, signed up in the Independent after being told four or five times in 1 day by Gagany to sign up in order to "be on the good side of the Company." In December 1937 Gagany asked Vaccaro, another employee, to join the Independent. Vaccaro refused, and Gagany told him it would be "too bad" if he did not join. In November, Joe Villio, an employee who had been laid off, talked with Gagany at the gate to the respondent's plant concerning work. Ga- gany told him, "I'don't think you are going to get very much work now, because you didn't sign the Independent Union." We do not credit Gagany's denial of coercive statements attributed to him by employees. The activities of Gagany, as set forth above, are con- sistent with the respondent's known desires and with the other acts and conduct engaged in by the respondent and its agents. The respondent contends that it instructed all the foremen to refrain from any union talk and not to interfere with the employees' right .to join a labor organization and that Gagany acted in violation of his express instructions, if he engaged in the activities set forth above. Even if Gagany was acting contrary to his instructions, it was the respondent's duty to make its instructions effective, which it did not do. It is responsible for Gagany's activities.19 Moreover, during the entire period of Gagany's activities, the respondent's highest officials, P. J. Sheehan and Clingan, were themselves engaged in a course of conduct designed to break the Union and foster the Independent. Under these circumstances we find that Gagany's activities were a part of the course of conduct pursued by the respondent in destroying the Union and establishing an inside union. 1D Swift cG Company v. National Labor Relations Board , 106 F. (2d) 87 (C. C. A. 10). THE NILES FIRE BRICK COMPANY 903 3. Concluding findings The facts set forth above plainly establish that the respondent blocked and frustrated its employees in the exercise of their right to select representatives of their own choosing and installed the Independent, an organization formed and administered under the domination and control of the respondent, as a buffer and continuing obstacle to the self-organization and collective bargaining contemplated by the Act. This conclusion is further supported by our findings below that dur- ing this period the respondent discriminated in regard to the hire and tenure of employment of leaders and members of the Union and of em- ployees who refused to join the Independent. We find that the respondent dominated and interfered with the formation and administration of the Independent and contributed support to it, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. We further find that by the acts and conduct of the respondent prior to the strike of July 19, 1937, specified in Section III Al, by the activities of Matteo, Aubrey Sheehan, and Gagany, by discriminating against union leaders and members after the strike, by the anti-union statements and conduct of P. J. Sheehan and Clingan, by the circu- lation of the petition against a Board election, by extending on one occasion the lunch period for a half hour to enable employees to attend an Independent meeting, by instructing employees to attend another Independent meeting and paying employees for time so spent, by its consistently contemptuous treatment of the Union and its lead- ers because of the Union's affiliation with the C. I. 0., and by other acts and conduct set forth above, the respondent has interfered with, restrained, and coerced its employees' in the exercise of the rights guaranteed them in Section 7 of the Act. B. The discharges The complaint, as amended, alleges that : (1) on August 1, 1937, the respondent discharged 24 employees for organizational and other union activities; that said employees were not reinstated until August 18, 1937, or thereafter, and at various times since their reinstatement have been discharged again; (2) that 6 other employees were dis- charged for organizational and other union activity since October 1, 1937; that by the discharge and refusal to reinstate all said employees the respondent has discriminated in regard to their hire and tenure and terms and conditions of employment within the meaning of Sec- tion 8 (3) of the Act; and that 2 of the 24 employees referred to in clause (1) above were also discharged for testifying at the hearing 283029-41-vol. 18-58 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD held by the Board in Case No. R-362 on November 1 and 2, 1937. Upon motion of counsel for the Board during the course of the hear- ing the Trial Examiner dismissed the allegations of the complaint as to 6 of the 24 employees referred to in clause (1) above, namely, Cliff Clevenger, Peter De Fabio, William Green, Fred Tomlin, R. Newell, and Lawrence Villio.20 In its answer the respondent denied that it discharged the employees named in the complaint on August 1 and stated affirmatively that its failure to reinstate such employees between August 1, when the.strike ended, and August 18, the date of the last Reichart conference, was not discriminatory, but was due to such employees not making appli- cation for work, or because there was no work for them ; and that if any of the employees named in the complaint, with the exception of Louis Pasha, who, it claimed, was discharged for intentionally in- efficient work, are not now in its employment it is because they were temporarily laid off due to lack of work, or because they had volun- tarily quit the respondent's employment. Before discussing the individual cases of alleged discrimination we shall consider the respondent's defense that many of the persons named in the complaint failed to apply for reinstatement between August 1 and August 18. P. J. Sheehan testified that on July 30, before the official termination of the strike on August 1 by the Union, the re- spondent gave employment to as many of the employees as available work permitted; that because the respondent did not want men in the plant for whom there was no work, the employees desiring to return to work at the conclusion of the strike were required to go to the office and obtain a "slip" from Sheehan to gain admittance into the plant. P. J. Sheehan explained that the "slip" was in the nature of a pass, and that this was the only manner in which employees could obtain work' unless they were called into the plant by their respective fore- men. When P. J. Sheehan was interrogated during the course of his examination regarding the failure of particular union members to receive employment at the conclusion of the strike, in a number of instances he claimed that the employee about whom he was being questioned did not seek a "slip" from him and that this explained his failure to receive employment until the Reichart conference. Gagany and Murphy, the respondent's foremen, also testified that they did not give employment to anyone at the conclusion of the strike who did not have a "slip" from P. J. Sheehan. While some of the employees named in the complaint testified that they went to P. J. Sheehan at the conclusion of the strike and made application for employment, a majority of them testified that they did not do so, but followed the respondent's long established practice 2' No evidence was introduced at the hearing with respect to these six persons. THE NILES FIRE BRICK COMPANY 905 of seeking employment at the gate to the respondent's plant. In this connection, Gagany, the respondent's labor foreman, testified that the prevailing practice prior to the strike had been to permit all the em- ployees to enter the plant, at the beginning of the working day and that the selection of the employees who were to work was then made "around the kilns"; that after the strike this practice was changed so that "steady" men were permitted to enter, the plant, and the others held at the gate where the respondent's foremen would go to make selections if any additional employees were needed. No testimony was offered by the respondent showing that the purported rule requiring the striking employees to make personal application for employment to P. J. Sheehan was ever communicated generally 'to the striking em- ployees, or that any of the union members named in the complaint was ever informed by any of the respondent's officials or supervisors that such a rule existed. We are satisfied from the evidence as a whole that no such rule existed, or if it did, that it was not generally applied to all the employees. Indeed, P. J. Sheehan testified that employees could obtain employment without making application to him by being called in by their foremen. Also, P. J. • Sheehan testified that he talked to only about half of the respondent's employees after the strike, from which we infer that many of the employees were returned to their employment without making personal application to P. J. Sheehan. That the respondent's purported rule was not general in its application. is also shown by the fact that Aubrey Sheehan did not go to his father to get a "slip" at the conclusion of the strike because, Aubrey Sheehan testified, "It wasn't necessary." Therefore, we find that those employees who sought employment at the gate of the re- spondent's plant at the conclusion of the strike, but did not make per- sonal application to P. J. Sheehan, followed the respondent's estab- lished practice in seeking employment and made a sufficient applica- tion for reinstatement. Another matter of general importance in all the cases of discrimina- tion against union members, discussed below, is the respondent's seniority practice. Murphy, foreman of the shippers, testified that after the strike the respondent attempted to give employment to the "oldest hands." Murphy also testified that Nacco, an employee, was not given employment after December 1937 because it was necessary to reduce the force of employees and that the men retained were older than Nacco in point of service. John Stover, foreman in charge of brick manufacture, testified that Melee was retained in place of Lawrence Infante in December 1937 because of his greater seniority; and that Estes was laid off and Robert Boggs given employment in December because Boggs had greater seniority with the respondent. Pallante, production foreman, testified that Anthony Villio was not given employment at the conclusion of the strike because it was the 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent's policy to observe seniority. We find, therefore, that the respondent had an established practice of giving preference in em- ployment to employees with greatest seniority. Finally, we have found above that unfair labor practices of the respondent were a substantial factor in causing the strike beginning on July 19, 1937. Under Section 2 (3) of the Act the strikers remained employees of the respondent. And we have frequently held that where, as here, a strike has been caused in whole or substantial part by the respondent's unfair labor practices, the striking employees are entitled to their former positions upon making application therefor.21 Thus failure or refusal by the respondent to reinstate striking em- ployees who applied for reinstatement at the end of the strike to the positions to which they were entitled, by displacing, if necessary, per- sons hired after the commencement of the strike and other employees over .whom such striking employees normally had preference in em- ployment, constitutes discrimination in regard to hire and tenure of employment, within the meaning of Section 8 (3) of the Act.22 We now set forth our findings with respect to each of the employees involved. Paul Yarwood began his employment with the respondent on March 1, 1934. He was employed as a kiln and shed wheeler, or shipper, at the time of the strike on July 19, 1937. Yarwood was elected record- ing secretary of the Union shortly after its organization, attended all the conferences between the union representatives and the re- spondent, and was elected president of the Union in January 1938. Yarwood was not returned to the respondent's employment on August 2, and thereafter participated as a member of the union com- mittee in the Reichart conferences held on August 16, 17, and 18, concerning the reinstatement of the union members who had not ob- tained employment at the conclusion of the strike. Yarwood was given employment on August 18 by the respondent as a result of the Reichart conference. When Yarwood returned to work on August 18 he was given em- ployment in his old position as a shipper. On November 1 and 2, Yarwood attended the hearing in Case No. R-362 and testified as a witness for the Union. Thereafter Yarwood received much less work Matter of Jeffery-DeWitt Insulator Company and Local No.. 455, United Brick and Clay Workers of America, 1 N. L. R. B. 618, order enforced in Jef ery-DeWitt Insulator Company v. National Labor Relations Board, 91 F. (2d) 134 (C. C. A. 4), cert. den. 302 U. S. 731; National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2), cert. den. 304 U. S. 576. u Black Diamond Steamship Corp. v. National Labor Relations Board, 94 F. (2d) 875 C. C. A. 2), cert. den. 304 U. S. 579; National Labor Relations Board v . American Manufacturing Company and Nit-Art Employees, Inc., 106 F. (2d) 61 (C. C. A. 2) ; Matter of Western Felt Works and Textile Workers Organizing Committee, Western Felt Local, 10 N. L. R. B. 407; Matter of Stehli and Co. and Textile Workers Union of Lancaster, Pennsylvania and Vicinity, Local $138, 11 N. L. R. B. 1397. THE NILE'S FIRE BRIOK COMPANY 907 than the majority of the shippers employed by the respondent. Dur- ing the period from November 1 to November 15, Yarwood received 1 day's work on the "hacks," and 1 day's work as a shipper, making a total compensation of $11 .68; from November 15 to November 30 he received 3 days' work as a laborer and 2 days ' work as a shipper, and received $20.40 compensation for that period. From December 1 to 15 Yarwood received approximately 3 days' work and was paid $14.40, from which $8.76 was deducted for coal furnished Yarwood by the re- spondent. Yarwood was laid off on December 3, 1937. The respondent contends that the record shows that the reason for Yarwood not returning to his former employment after the strike until August 18 was because he did not desire to do so, and did not make application for work. In support of this contention the re- spondent points to certain testimony of Sheehan and Yarwood rela- tive to a conversation between the two during the course of the Reichart conference on August 18. According to Sheehan, Yarwood stated that he could not go back and work with the men who had worked during the strike ; that upon Yarwood making this assertion, Sheehan urged him to "go back there and be just as friendly with those men as ever"; and that Yarwood then replied that it was "pretty hard to do when those men stayed in there and we, were out on strike." When Yarwood was questioned concerning this incident he denied that he at any time refused 'to go back to work at the con- clusion of the strike, testifying that he had been at the gate to the respondent's plant "day in and day out" prior to the Reichart con- ference on August 18 , and that on the occasion of his conversation with Sheehan on August 18, he suggested to Sheehan that he keep the "unfair men" together in separate "gangs" from the union men, in order to avoid a "lot of trouble." We believe that the remark made by Yarwood was, as he claimed, made in conjunction with his suggestion concerning segregating the employees who worked during the strike from the union members to avoid trouble ; and that the statement does not detract in any manner from Yarwood's positive testimony that after the strike ended he was constantly at the gate to the respondent 's plant seeking work, but was not given employment until the Reichart conference. The first time the respondent gave Yarwood employment, on August 18 as a result of the Reichart conference, he accepted it and went to work immediately. Sheehan, when asked if Yarwood was offered employ- ment prior to August 18 and had refused to accept it , testified that he did not know because, "I didn't have charge of giving the work." We find that Yarwood made application for reinstatement at the end of the strike and was an applicant for reinstatement from that time until August 18; that he made this fact known to the respondent's 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD officials by his constant attendance at the gate of the respondent's plant ; and that employment was refused him until August 18, when he was given work as a result of the Reichart conference. The re- spondent's pay roll shows that at least two shippers with less seniority than Yarwood worked during the period from August 2 until August 18. No evidence was offered by the respondent explaining the failure to follow its acknowledged rule of giving employment to the oldest employees in point of seniority. From the outset Yarwood was an outstanding leader in the Union. It is plain from Clingan's reference to him as a "rat" and "nuisance to the Company" at the Reichart con- ference on August 17 that he had incurred the respondent's displeasure because of his leadership in the Union. We find that the respondent refused to reinstate Yarwood from August 2 to August 18 because of his membership and activity in the Union. In explaining Yarwood's failure to receive his share of work as a shipper and his dismissal on December 3, Clingan testified that in the latter part of November he observed Yarwood dump three loads of brick during the course of a week; and that he "then instructed Murphy, the foreman, to put Yarwood on some other work "because I didn't think he was capable any longer." Clingan further testified that when brick is dumped it is sometimes damaged, causing a loss to the respondent. Murphy and Foster, brick inspector, corroborated Clingan's testimony concerning the instructions they received from Clingan to put Yarwood on other work, although Murphy admitted that no explanation of the action taken was given Yarwood at the time he was relegated to labor work in accordance with Clingan's instruc- tions. Murphy also testified that he had not seen Yarwood dump brick; and that during the 3 years that Yarwood had worked under him as a shipper his work had been satisfactory. Foster, however, testified that when Clingan informed him that Yarwood had dumped brick he told Clingan that Yarwood" had done so quite often and that he had seen Yarwood dump brick 10 or 12 times in the 3 weeks preceding Clingan's instruction. He did not testify that Yarwood was reprimanded for this practice, or that any explanation was offered him at the time he was demoted to labor work. Foster also testified that the brick-dumping incident occurred on November 13. Yarwood denied that he had dumped brick. He testified that he had been engaged in the work of a shipper- for nearly .4 years at the time of his dismissal and that prior to the strike his "gang was among the best of the shippers." He further testified that, after the strike, he was not.put on his regular "gang" but went to work with a "pick-up gang." It is very unusual that the conclusion should be reached that Yar- wood, engaged in the work of a shipper for a period of nearly 4 THE NILES FIRE BRICK COMPANY 909 years, "was not capable any more" because of the more. or less casual observation of the respondent's chief executive, when none of Yar- wood's immediate superiors who necessarily were in a better position to observe his work had any occasion to complain. If the offense of dumping brick was serious enough to justify relieving Yarwood of his work as a shipper, it would be reasonable to assume that he would have been informed by the respondent's officials of the reason for his demotion to labor work. Therefore, notwithstanding the respondent's explanation of the facts surrounding Yarwood's demo- tion which ultimately led to his dismissal on December 3, we are convinced that the entire course pursued by the respondent toward Yarwood after his reinstatement was designed to culminate in his elimination from the respondent's employment. The fact that Clingan was responsible for Yarwood's demotion is significant, in view of his having singled out Yarwood for special abuse at the Reichart conference on August 17. Also, the circumstances surrounding Yar- wood's demotion and his subsequent dismissal shortly after testifying for the Union at the hearing in Case No. R-362 show that the elimi- nation of Yarwood from the respondent's employment was hastened by his giving testimony as a witness for the Union in that pro- ceeding. Turning to the respondent's pay roll, we find that Taylor and Accordina, both having less seniority than Yarwood, were still employed as shippers after Yarwood was laid off on December 3. Also, Samuel Hunter, who went to work for the respondent for the first time on August 24, 1937, as a shipper, was retained in the respondent's employment as a laborer when Yarwood was dismissed. We find that Yarwood was demoted from the position of shipper to the work of a common laborer on November 13 and thereafter discharged on December 3 because of his membership and activity in the Union and because he gave testimony under the Act. Yarwood was unemployed from the time of his discharge on December 3, 1937, until the time of the hearing. John Bacos was working as a laborer at the time of the strike and had been employed by the respondent in that capacity since March 8, 1934. Bacos was a member of the Union and active on the picket line during the strike. On July 31, 1937, the Saturday before the strike was officially terminated by the Union, Bacos applied for work to P. J. Sheehan who took his name down and told him to report at the gate of the plant the following Monday morning. When Bacos reported for work on Monday, August 2, he was not given employment. He reported for work thereafter every day until August 18, when he again spoke to P. J. Sheehan, and was given employ- ment doing the same work he had been engaged in prior to the strike. He was reinstated as a result of the Reichart conference. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After his return to the respondent's employment Bacos worked regularly until November 1937. The last day on which he worked was November 12, receiving only 4 days' work in that month. Bacos did not join the Independent. The record does not show whether or not he was requested to join the Independent. P. J. Sheehan testified that Bacos did not receive employment until August 18 because he was a kiln fireman and that there were not enough kilns on fire at the end of the strike to give employment to all the men working in that capacity. On the other hand, Gagany, in attempting to explain Bacos' failure to receive employment at the end of the strike, testified that he had not seen Bacos after the strike until he returned to work on August 18. The record shows that Sheehan was only partially correct in his testimony that Bacos was employed as a kiln fireman. Bacos tes- tified that he also did labor work, and the respondent's pay roll shows that during some months in the course of his employment Bacos did both labor work and kiln firing, and that during other months he was engaged in labor work entirely. The respondent's pay roll shows that Joseph Demertz and George Johnson were employed for the first time on August 2 to do labor work. In addition, a number of employees hired for the first time during the strike, thus having less seniority than Bacos, were given employment doing labor work during the period from August 2 until August 18. No evi- dence was offered by the respondent that these men were doing work which Bacos was not qualified to do, or explaining the respondent's departure from its established rule of giving preference in employ- ment to employees with greatest seniority. Under these circum- stances, and in view of the respondent's anti-union activities, set forth above in Section III A, we find that the respondent refused to reinstate Bacos from August 2 until August 18 because of his membership and activity in the Union. The respondent offered no explanation regarding Bacos' dismissal on November 12, other than the one set forth in its answer. Turn- ing to the respondent's pay roll, we find that a number of,employees, some of whom were employed for the first time during and after the strike, were engaged in labor work after Bacos' dismissal on No- vember 12. In the absence of a satisfactory explanation on the part of the respondent regarding its failure to give employment to Bacos rather than to employees with less seniority, and in view of the re- spondent's hostility to the Union, we find that Bacos was dismissed on November 12 because of his membership and activity in the Union. Nick Nacco began his employment with the respondent on May 28, 1935, and was working as a shipper at the time of the strike on July 19,1937. He was a member of the Union and was active on the picket line during the strike. THE NILES FIRE BRICK COMPANY 911 Nacco was not' given work on August 2, but on August 18 he was reinstated as a result of the Reichart conference. After his return to work, Nacco had a conversation with Costello, a committeeman of the Independent, relating to Nacco's employment with the respondent. On this occasion Nacco complained in the presence of Costello that he was not receiving enough work. Costello replied, "I will tell you why. You attend these C. I. O. meetings. That is the trouble. If you quit going to them meetings you will probably get work." When the petition was circulated in the plant in October by Matteo, Tackett, Wallace, and others, opposing a Board election, it was not presented to Nacco for his signature. It was generally known throughout the plant that Nacco was a member of the Union. The last day on which Nacco was employed was December 3, 1937. After he was laid off Nacco went to the gate of the respondent's plant every morning for a period of 7 weeks but did not obtain employment. The respondent bases its failure to reinstate Nacco after the strike entirely on the assertion that there was not enough work for all the shippers, and that all those who were working had greater seniority than Nacco. However, as in the case of other union members who were not reinstated at the end of the strike, the respondent's, pay roll disproves this contention. The pay roll shows that Taylor, also em- ployed as a shipper and having less seniority than Nacco, received employment during the entire month of August.23 The respondent offered no explanation for its departure from its seniority rule. Under these circumstances and in view of the respondent's hostility to the Union, we find that the respondent refused to reinstate Nacco from August 2 until August 18 because of his union membership and activity. The respondent contends that Nacco was laid off on December 3 because he had less seniority than any of the employees retained in the same capacity after December 3. This contention is not sup- ported by the record. The pay roll shows that Taylor, referred to above, was retained when Nacco was dismissed. Hunter, first em- ployed by the respondent as a shipper on August 24, 1937, was re- tained doing labor work after Nacco was dismissed. No contention was made by the respondent that Nacco could not do the work per- formed by these two employees, or that they were superior in ability to Nacco. In view of the respondent's hostility to the Union and respondent's departure from its acknowledged practice of giving em- ployment to employees with greatest seniority, we find that Nacco was discharged on December 3 because of his membership and activity in the Union. 29 Taylor earned $188 .15 as a shipper during August. 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From December 3, 1937, until the time of the hearing Nacco's only earnings were $20 in W. P. A. work. Harry Evans started to work for the respondent in April 1935 and was employed as a shipper at the time of the strike. He was a member of the Union and active on the picket line during the strike. On one occasion, prior to the strike, Murphy, foreman of the ship- pers, asked Evans if he was a member of the Union, and when Evans replied that he was, remarked, "That is all I want to know." Evans occupied one of the respondent's houses. On July 27 he received a letter from the respondent requesting him to vacate the house by August 1. On July 30 Evans spoke to Clingan concerning this notice to vacate. Clingan complained about Evans "calling our renters scabs and rats over there," and told Evans that he had affi- davits in his possession against Evans and his wife. Evans explained during the coure of his examination that Mrs. Warmock, wife of one of the respondent's employees, had cooked for the employees who worked during the strike, and that Clingan's complaint had reference to a controversy between Evans' wife and Mrs. Warmock. Evans ad- mitted that on one occasion he had called Mr. Warmock a "scab." Later, the same day, Evans again asked Clingan whether or not he would be required to move. After some discussion Clingan stated, "I'll tell you Evans, if you folks over there can behave yourselves and quit calling our renters scabs and rats you can retain your house." Evans then assured Clingan "that there won't be any more arguments, or any disturbances," and then questioned Clingan about employment. Clingan told him to report for work the following Monday, August 2, stating, "I'll tell you now there won't be any work much, these fellows that worked through the strike come first regardless of anyone else." Evans reported for work on August 2 but was not given employ- ment. Thereafter he reported for work every day but was refused employment until August 18, when he was given work as a result of the Reichart conference. After his return to the respondent's employment Evans spent a day on labor work and then was given employment as a shipper. When the petition in opposition to a Board election was circulated in October, it was presented to Evans by Tackett, but Evans refused to sign it. Evans did not work as regularly as other shippers during September, October, and November. He received only 7 days and 4 hours' work in November, making a total compensation of $39.59. whereas other shippers received much more employment. On De- cember 4, Evans became ill from bloodpoisoning and was unable to work for a period of over 3 weeks. THE NILES FIRE BRICK COMPANY 913 On some undisclosed date in December Evans was in need of money and went to the respondent's office and requested Higgins, the re- spondent's paymaster, for an advance of.$5. According to the testi- mony of Evans, Higgins stated, in substance, that he could not under- stand how Evans could ask the respondent for favors after "back- slapping and going before the Labor Board and filing complaints." Higgins then gave Evans $5, stating further, "By the way hove would it strike you to be missing on the Labor Board hearing?" When Evans replied that he did not know, Higgins continued, "Think it over. It would make it worth your while. " Higgins' re- mark had reference to the Board hearing in Case No . C-958. Evans reported for work on or about January 2 or 3 but did not obtain any work during the month of January . Another notice was sent him to vacate the respondent's house on February 9, 1938. At that time Evans was working on W. P. A. He spoke to Sheehan and agreed to "work out" the back rent due the respondent on his "off days" with the W. P. A. In accordance with these arrangements Evans worked on March 2 and 3, and his earnings were applied to the back rent due the respondent. Sheehan testified that Evans was not given work during the' period between August 2 and August 18 because Evans did not come to see him until after August 2, and that Evans was not put to work at that time because there was no work for him. Murphy testified that he did not know whether or not Evans applied for work be- fore August 18, but claimed that Evans was "too slow" and that men complained so much about working with him before and after the strike that he was given employment as a hacker when he was finally put back to work. In view of Murphy's uncertainty as to whether or not Evans was an applicant for reinstatement, and Evans' positive testimony con- cerning his conversation on July 30 with Clingan, and his subsequent application for work on August 2, we find that Evans was an appli- cant for reinstatement on August 2, and thereafter , but that he was denied reinstatement by the respondent until August 18 . No reason- able explanation was given by the respondent concerning its failure to give Evans employment during the period from August 2 to August 18 , since the record shows that many employees with less seniority than Evans worked during that period. Evans admitted that he was slow in his work, but testified without contradiction that he worked with Wagner and Taylor before the strike because all three worked at about the same "speed." The pay roll shows that Taylor, whose seniority was less than Evans, was given employment at the end of the strike and worked during the entire month of August. In view of the above facts and the respondent 's hostility toward the 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, we find that the respondent refused to reinstate Evans from August 2 until August 18 because of his union membership and activity. The respondent offered no explanation other than that stated in its answer, for its failure to give Evans work in January after he had recovered from his illness and had applied for work. Two shippers, Hunter and Taylor, both had less seniority with the respondent than Evans, and were given employment in January and February. We find that the respondent discriminated against Evans in the amount of work given him between September 1 and December and discharged him on January 2 and refused to reinstate him thereafter because of his membership and activity in the Union. With the exception of March 2 and 3, 1938 , the 2 days on which he. worked for respondent to pay off his back rent , Evans has had only W. P. A. employment from the time of his discharge until the time of the hearing. Alex Miller was first employed by the respondent in 1928 as a laborer. From 1933 to the time of the strike on July 19, 1937, he worked as a kiln fireman . On the day the strike began, Gagany and Clemente, foremen, urged Miller not to join the strikers , but to stay and attend the kilns, and warned him that he would lose his job if he became a member of the Union. Miller, however, joined the Union, went out on strike , and was thereafter active on the picket line. The record shows that Miller does not speak English very well, making his testimony difficult to understand . It is reasonably clear, however, that he applied for work on July 31, the Saturday before the strike was called off by the Union, and attempted to see Sheehan, but was unsuccessful . The following day Miller saw Sheehan who took his name down, and told him that he would "find out" about giving Miller employment. Miller waited for .a week and then spoke to Sheehan who told him that he was not needed . On August 19 Miller spoke to Sheehan again and was sent to Gagany, who put him to work. Although it is not clear from the testimony , we assume from the date of Miller's reinstatment that his reinstatement was due to the Reichart conference. After his reinstatement Miller worked until October 29. On that date Matteo, General Manager Sheehan 's son-in-law, requested Miller to join the Independent . Miller refused, stating that he was a mem- ber of the Union, and Matteo told him that he would lose his job. This was the last day Miller worked . Thereafter Miller frequently reported at the gate of the respondent 's plant, but was not selected for work. THE NILES FIRE BRICK COMPANY 915 The respondent contends that Miller's own testimony shows that he did not apply for work until August 19 or 20. We do not agree with this contention. As stated above, it is clear from the record that Miller had great difficulty in understanding the questions asked him. Nevertheless, Miller testified, upon being questioned on cross- examination by counsel for the respondent, that he applied to Sheehan for work the Saturday before the strike was officially terminated by the Union, and was told by Sheehan that he would "find out" about giving him employment. Indeed, Sheehan corroborated this testi- mony to a certain extent by stating that Miller came to him with reference to obtaining employment "one day" after the first of August, and that he informed Miller that he would be put to work "as soon as there was an opportunity." When questioned concerning the reason for Miller's failure to obtain employment until August 20, Sheehan did not claim that Miller had not made application be- fore that date, but testified that Miller was not employed at the end of the strike because "there wasn't kilns enough on fire to take care of all the kiln firemen." Miller testified that several kiln firemen, particularly John Sant- angelo and George Infante, both of whom had less seniority than Miller, were employed during the period from August 2 until August 20 doing work which he was entitled to. do. On the other hand, Clemente, the night. foreman under whom Miller worked, testified that Miller was an "extra" kiln fireman, that there was not enough work for everyone, and that the regular firemen were given prefer- ence. On the record as a whole, we do not credit Clemente's testi- mony. In his testimony he attempted to disparage Miller's compe- tence as a workman notwithstanding Miller's 8 or 9 years' service with the respondent. When questioned by counsel for the respondent concerning Miller, Clemente began a long tirade to the general effect that he had attempted since 1933 to make a kiln fireman out of Miller but finally had given up in 1936 and made him an "extra" fireman, that Miller was the slowest man in the plant, and that men put to work with Miller objected and threatened to quit because be fought with them. Clemente's testimony regarding the alleged incompetence of Miller was not corroborated by any of the other supervisors or officials of the respondent, or by any of the workmen who are alleged to have objected to working with him. One significant statement made by Clemente during the course of his testimony, however, was his admission that he attempted to get the kiln firemen to remain at work and attend the kilns on the first day of the strike. Since Cle- mente and Gagany had urged Miller to remain at work on the first morning of the strike, and had warned him that he would lose his 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job if he joined the Union, we are of the opinion that Miller's joining the Union in spite of their warning caused the respondent to refuse to reinstate Miller at the end of the strike. This finding receives further support from the respondent's pay roll which shows that many kiln firemen with less seniority than Miller were given employ- ment during the period from August 2 until August 20. Even if Miller was an "extra" fireman, as asserted by Clemente, the pay roll shows that other kiln firemen in the same classification as Miller and with less seniority,24 worked from August 2 to August 20. The respondent contends that Miller was laid off on October 29 due to lack of work because of a decrease in its business. In this connection, Clemente testified that Miller had not reported for work for about 7 months prior to the hearing, although he had instructed Miller that when his turn came he would be given work; and that he had inquired of some of the employees concerning Miller's where- abouts within the 4 months preceding the hearing because he could have given him some work during January and February 1938. It is possible that Miller did not continue going to the gate of the plant regularly from the date of his dismissal on October 29 until the date of the hearing in March 1938, and that for this reason Clem- ente had not seen him for some time. We accept as true, however, the testimony of Miller that lie presented himself for work often after his dismissal on October 29, but was never given employment. If he discontinued this practice after a reasonable length of time we think he was justified in so doing since he had a right to assume that it was useless. Furthermore, the length of time during which Miller sought employment after October 29 has little bearing on the question whether or not he was discriminated against on October 29. The respondent's pay roll shows that the respondent discriminated against Miller in dismissing him on October 29. A number of kiln firemen. with less seniority than Miller, some of whom, like Miller, were part-time firemen and part-time laborers, were retained in the respondent's employment when Miller was dismissed on October 29. The respondent made no attempt to explain why these employees with less seniority than Miller were retained when he was laid off, unless we consider Clemente's animadversions on Miller's competence as a justification for a departure by the respondent from its practice of observing seniority. But we have already stated that we do not credit Clemente's testimony in this respect. One fact which stands out is that Miller was laid off on the same day he refused to join the Inde- pendent when requested to do so by Matteo, son-in-law of P. J. Slice- 24 Miller is designated on the pay roll as "kiln fireman and labor." Others with the same designation , such as Santangelo, having much less seniority than Miller , worked during the entire month of August. THE NILES FIRE BRICK COMPANY 917 han, and was told by Matteo that he would lose his job when he re- fused to join. Another significant fact is that in nearly every case the union members who were refused reinstatement at the end of the strike, and thereafter, reinstated as a result of the Reichart conference, were the ones selected for dismissal when the respondent reduced its force of employees. We find that the respondent discharged Alex Miller on October 29 because of his refusal to join the Independent and because of his membership and activity in the Union. Joe Villio, also known as Joe Weaver, began his employment with the respondent in 1933. At the time of the strike Villio was em- ployed as an off-bearer in the clay yard. He joined the Union prior to the strike and was active on the picket line during the strike. Villio reported for work every day after the strike ended, but was not given employment until August 18. On that date he was not given work in his old position in the clay yard but was employed as a laborer. Villio's reemployment was a result of the Reichart conference. As found in Section III A above, late in October Matteo warned Villio, who had refused to sign the petition circulated in opposition to a Board election, that "later on when things boom, don't say we didn't come around and tell you to sign it." After this warning he received no employment in November and only 6 hours' work on December 7. This was the last day Villio received employment, and the premium due on his insurance was deducted from the corilpensa- tion for these 6 hours' work. In Section III A above we found that in November Foreman Gagany told Villio at the gate to the respond- ent's plant that Villio was not going to ,get much work because he "didn't sign the Independent Union." The respondent offered no explanation at the hearing for its failure to give Villio employment until August 18 and his subsequent dis- missal on December 7. In its brief, however, the respondent con- tends that the pay roll indicates that Villio was an "extra" man who did not receive regular employment before the strike, and that this accounts for his failure to receive regular employment after the strike. While the record shows that prior to the strike Villio received less work than others employed in the same capacity, the respondent's con- tention is not supported by the record. The pay roll shows that three men with less seniority than Villio worked as off-bearers in the yard in August during the period Villio was refused reinstatement, and that these three employees remained in the respondent's employ when Villio was dismissed. Even if we concede that Villio was an "extra" man, the pay roll shows that men employed for the first time during 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the strike and even after the strike had ended , were given employment doing labor work during August, and also after Villio's dismissal on December 7. No evidence was offered by the respondent that Villio could not do the work for which these employees were retained. Under these circumstances and in view of the respondent's hostility to the Union, the warnings given Villio by Gagany and Matteo, and the respondent's domination of the Independent, we find that the respond- ent refused to reinstate Villio from August 2 until August 18, there- after gave him less work than other employees engaged in the same capacity, and discharged him on December 7 because of his union membership and activity and because of his failure to join the Independent. From December 7 until the .time of the hearing Villio has had only W. P. A. work. Heman Estes began his employment with the respondent on July 19, 1935, and worked as an off -bearer in the silica press until the strike on July 19, 1937 . Estes was a member of the Union and was a picket during the strike. At the time of the hearing he was financial secre- tary of the Union. Estes was not given employment at the end of the strike on August 2, but was thereafter reinstated on September 2. On or about August 7 Estes and a number of the employees, including John Toth and Avery Tackett, were involved in an affray at the home of one of the employees, and Estes was shot in the foot by Tackett. There is no evidence in the record explaining the nature of this affray other than Estes' testimony that it was an "after clap" of the strike. A complaint was filed against Estes, Toth, and Tackett, and they were bound over to the grand jury because of their participation in this affray. It is not clear from the record when grand jury action was taken in the matter, but presumably it was some time before September 1, since both Sheehan and Estes testified that Estes was not given employment until he got "through with the grand jury." As stated above in Sec- tion III A, Estes was one of the four employees expressly refused reinstatement at the time of the Reichart conference on August 18. When Estes returned to the respondent's employment on September 2, he was not given his old job back immediately, but was given em- ployment doing labor work . After doing labor work for 2 weeks he returned to his old position as an off-bearer in the silica press where he worked regularly until on or about December 13. The respondent's plant shut down from December 13 until December 28. When the plant resumed operations on the latter date Estes reported for work. He was not given employment and was told by Stover , foreman, that married men were being given preference . Estes then called Stover's attention to the fact that two single men, both his junior in point of THE NILES FIRE BRICK COMPANY 919 service, were working at the time, and Stover stated that he could do nothing for him then, but would "try to make it up" the following week. The following week Estes again reported for work and found that his employment card had been removed from the rack. When Stover came to, the plant Estes inquired about the absence of his card from the rack and was told by Stover that there was nothing for' him to do because work had to be given to the "older mer-" Estes went to the plant the night following his conversation with Stover and was stopped at the gate by the watchman who told him that he had re- ceived orders not to let Estes in the plant. Estes received no employ- ment thereafter. From the testimony of P. J. Sheehan it appears that the only ex- planation offered by the respondent for its failure to give Estes employment until September 1 was that he was bound over to the grand jury. Admittedly, however, Tackett, who had participated in the affray, was only laid off for a few days at the time of the affray, and was then given employment because, Sheehan testified, "they needed a setter and he was put back on." In view of the record as a whole, however, we are not satisfied with the respondent's expla- nation for giving Tackett employment before action was taken by the grand jury, and not giving Estes employment. We are convinced that Tackett's activity on behalf of the Independent was the reason for the respondent's indulgence in his case, and by the same token, that Estes was denied 'reinstatement until September 1 because he was an active member of the Union. Sheehan testified that Estes was not given work after December 13 because it was necessary to reduce the force of employees and that he felt that it was his duty to give Roy Boggs, an employee with greater seniority, work instead of Estes. The respondent's pay roll shows that Roy Boggs was first em- ployed by the respondent in 1927, and thus corroborates Sheehan's testimony that Boggs was an employee with greater seniority than Estes. Roy Boggs, however, had been employed as a wet-pan man up to and including December, and was thereafter given employment as an off-bearer in the silica press, work in which Estes had been engaged. There are many instances in the record showing that the respondent did not display the same solicitude about union members with greater seniority as it showed Roy Boggs. Many of the union members named in the complaint were dismissed because there was nothing available in their particular kind of work, and no effort was made to give them employment in any other capacity, even though they had greater seniority. Moreover, the record shows that, in addition to Roy Boggs, another employee by the name of Thomas Boggs, employed for the first time during the strike as a wet-pan 283029-41-vol. 18--59 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man and laborer was given employment after Estes was laid off as an off-bearer in the silica press. No explanation was offered by the respondent for its departure from the rule expressed by Sheehan of giving employment to employees with greater seniority. In addition to Thomas Boggs, five other employees with less seniority than Estes, listed on the respondent's pay roll as off-bearers in the silica press, were retained in the respondent's employment when Estes was laid off. We find that the respondent refused to reinstate Estes from August 2 until September 2 and discharged him on December 28 because of his membership and activity in the Union. Estes was unemployed from December 28, 1937, until the time of the hearing. John Toth was first employed by the respondent in 1932 and for 3 or 4 years preceding the strike worked as a kiln fireman. He was a member of the Union and was active on the picket line. During the period when Toth was on the picket line he was ap- proached by Gagany, Clemente, and P. J. Sheehan nd requested to return to work, but refused to do so. Toth's reply to their request was that he would return to work when "they were ready to sign the contract." At the end of the strike Toth obtained It "slip" from Sheehan to return to work and thereafter presented it to Gagany, the respond- ent's labor foreman. Gagany told him that he did not have a job because he "talked too smart on the picket line." Like Estes, the respondent expressly refused to reinstate Toth at the time of the Reichart conference on August 18 because he was bound over to the grand jury by reason of his participation in the affray on August 7. He was reinstated on September 1. He was not given work as a kiln fireman immediately, but was employed wheeling coal. There- after he worked part of the time as a kiln fireman and part of the time wheeling coal. Toth was still employed by the respondent at the time of the hearing. He claims, however, that the respondent discriminated against him in not giving him full-time employment as a kiln fireman. In support of this claim Toth testified that George and John Infante, and John Sunday, three new men, were firing the kilns in his place. The facts set forth above in connection with the respondent's re- fusal to reinstate Estes from August 2 until September 1 apply equally to Toth. For the reasons stated above in connection with Estes, we find that the respondent refused to reinstate Toth from August 2 until September 1 because of his membership and activity in the Union. The record, however, does not support Toth's claim that the respond- ent discriminated against him after he returned to work on September THE NILES FIRE BRICK CO_IIPANY 921 1. The respondent's pay roll shows that prior to the strike Toth did both kiln firing and labor work, and that since his reinstatement on September 1, his employment has been in the same dual capacity. The pay roll also shows that George and John Infante, two of the employees referred to by Toth as having been given work in his place, are not new employees, but were employed in the same capacity as Toth before and after the strike. John Infante has much greater seniority and for months before the strike received more regular work as kiln fireman than Toth. Although .George Infante has less seni- ority than Toth, the earnings of Toth and George Infante were approximately equal for several months prior to the strike, and the same is true of their earnings after September 1. The third man mentioned by Toth, John Sunday, does not appear on the respondent's pay roll. We find that the respondent did not discriminate in regard to the hire and tenure of Toth after September 1. Alfred Whitt started to work for the respondent in 1928 and at the time of the strike was a dry-press operator. Whitt was very active in the Union and participated in most of the conferences with the respondent as a member of the committee of the Union. From August 2 until his reinstatement on August 18, Whitt reported for work at the gate of the respondent's plant daily but was not given employment. Whitt's reinstatement was a result of the Reichart conference. When Whitt was reinstated on August 18, he worked on labor for a few days, was then given some employment in his old position as a dry-press operator during October and November, and at the time of the hearing was working as an off-bearer in the silica press. In December Whitt was asked by Matteo to become a member of the Independent. Whitt told Matteo that he would not sign "but would talk to him when the Independent got a majority." Matteo then stated that he would give Whitt another chance. The respondent contends that Whitt was not given work until August 18 because its plant was running only one turn when opera- tions were resumed on August 2; that John McMahon, who regularly operated the clay press on the turn opposite the one on which Whitt worked as a regular clay-press operator, was given employment because he had greater seniority than Whitt. While the record bears out the respondent's contention that the clay press was only being operated one turn during the period from August 2 to August 18, and that John McMahon, the operator thereof, was an employee with greater seniority than Whitt, these facts are not conclusive on the issue as to whether or not the respondent's refusal to reinstate Whitt from August 2 to August 18 was discriminatory. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Whitt was one of the union leaders from the beginning of its organi- zation. Clingan singled out Whitt and Yarwood for special abuse by his reference to them at the Reichart conference of August 18 as "rats and nuisances to the Company." It is plain, therefore, that Whitt would be a logical victim of the respondent's systematic dis- crimination against union leaders at the end of the strike. Since his position as operator of the dry press was not available to Whitt at the end of the strike, the respondent's failure to give him any employ- ment until August 18 must be compared with the respondent's treat- ment of other employees of long standing who were not leaders in the Union, when their particular employment was not available. An example of the respondent's solicitude in giving employment to em- ployees not identified with the Union was its treatment of Roy Boggs, referred to above. In December, Boggs, who was regularly employed as a wet-pan man, was given Estes' job and Estes, a union member who was an off-bearer in the silica press, was laid off. Sheehan ex- plained this action by stating that he felt it was "his duty" to give employment to Boggs because Boggs was an employee with greater seniority. The employment records of Boggs and Whitt show that each has between 9 and 10 years' service with the respondent. Since many employees with less seniority than Whitt worked during the period from August 2 to August 18 no reason appears for the nonexistence of a "duty" to give Whitt employment during that period. The respondent's pay roll shows that two employees were hired on August 2 to do labor work. The respondent offered no explanation for not-giv- ing Whitt the work for which these two men were employed. Donald Underwood, first employed by the respondent during the strike, worked during August as an off-bearer in the silica press, work which Whitt frequently performed before the strike, and in which he was engaged at the time of the hearing. In addition to Underwood, at least four employees who were employed for the first time by the respondent 'during the strike worked during the entire month of August doing labor work. We find that the respondent refused to reinstate Whitt from August 2 to August 18 because of his union membership and activity. The Trial Examiner found that Whitt was also discriminated against because he was not given regular employment on the clay press after his return to work on August 18. This finding is based on the fact that Whitt was employed as an off-bearer in the silica press from and after December, whereas, Stamper, a member of the Independent, who was first employed on September 15, 1937, was given work oper- ating the clay press. The respondent objects to this finding as not supported by the evidence. Stover, foreman, testified that an off-bearer in the silica press made the same earnings as a clay-press operator; that the clay press did THE MLES FIRE BRIOIK COMPANY 923 not operate regularly during December and the following months; and that if Whitt had been given work on the clay press when it operated, his compensation would have been less than that which he received working as an off-bearer in the silica press. Whitt's own testimony corroborates that of Stover to the effect that the clay press did not operate regularly during the last 8 months of his employment with the respondent . Whitt further testified, however, that for 6 or 7 weeks prior to the hearing the clay press had been "running steadily." From Whitt's testimony it appears that his preference for the posi- tion of clay-press operator, and his claim of discrimination because Stamper was given this employment in his stead , is based entirely on the fact that he would have received more compensation as a clay- press operator than he received working as an off -bearer in the silica press. The respondent's pay roll, however, shows that Whitt's compen- sation as an off-bearer in the silica press from and after December was a little in excess of that of Stamper operating the clay press during the same period. Since Whitt would not have received more compensa- tion operating the clay press than he received as an off-bearer in the silica press , and in view of the basis on which Whitt claimed discrimi- nation, we are not satisfied that the respondent discriminated against Whitt after August 18. We find that the respondent did not discriminate against Whitt in regard to hire and tenure or terms and conditions of employment after August 18. Thomas Liberatore was first employed by the. respondent in March 1935 and was working as a laborer at the time of the strike. He was very active in the organization of the Union and was elected its presi- dent on June 7,1937. Liberatore did not make application for employment until August 7. On that date he questioned P. J. Sheehan at 'the gate of the respond- ent's plant concerning employment, and was told that there was no employment available for him at that time. It was due to the efforts of Liberatore that Reichart came to Niles and held the conference con- cerning reinstatement of the employees who had not been given employment at the end of the strike . Liberatore was one of the four employees expressly refused reinstatement at the Reichart conference. The respondent, however, reinstated him on September 1. During September and October Liberatore was given various kinds of work at common labor . October 29, 1937, was the last day of Liberatore's employment. On November 1 and 2 he attended the hearing in Case No. R-362 and testified on behalf of the Union. He testified in the instant case that he applied for work at the gate to the respondent's plant at the conclusion of the hearing in Case No. R-362, but was not given employment, and that he was unable to obtain any 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment with the respondent thereafter. The complaint alleges that Liberatore was discharged on October 29 and thereafter refused reinstatement for engaging in union activity and giving testimony under the Act. The respondent contends that Liberatore was not given employment until September 1 because of a new State law relating to occupational diseases which became effective either on July or August 15. Sheehan explained that due to the fact that Liberatore had at one time been afflicted with tuberculosis he had requested Liberatore at one of the "meetings" to submit to a medical examination, and that Liberatore was not employed until the doctor making the examination had sub- mitted his report of Liberatore's physical condition. He testified fur- ther that the doctor's report recommended that Liberatore should be kept away from silica dust, and for this reason, when Liberatore was given employment on September 1 an attempt was made to give him work in the open which would not subject him to silica dust. Although the testimony is not altogether clear, the record supports the contention of the respondent that Liberatore submitted to a physi- cal examination and was not given employment until a report of the examination had been received. The respondent, however, did not request Liberatore to submit to a physical examination until the Reichart conference on August 18.25 There is no satisfactory explana- tion by the respondent for its failure to employ Liberatore from August 7, the date on which he applied for reinstatement, and August 18, the date on which he was requested to submit to a physical examination. In view of the respondent's practice of discriminating against union members at the end of the strike and in view of its especial and intense hostility to Liberatore, we find that the respondent refused to reinstate Liberatore from August 7 to August 18 because of his membership and activity in the Union. We also find that the respondent did not dis- criminate against Liberatore in not giving him employment between August 18 and September 1, during which period the doctor's examina- tion and report of his physical condition were made. The respondent contends that Liberatore was not refused employ- ment after testifying at the Board hearing on November 1, but that he voluntarily quit his employment prior to the hearing on October 29. On cross-examination by counsel for the respondent, Liberatore testi- fied, in substance, that toward the latter part of October he was given work in the sun creosoting ties, that the creosote burned his hands, and that he requested Gagany to give him work in a shadier place. Ac- cording to Liberatore, Gagany's answer to his request was, "If you can't do that, we ain't going to put you anywhere else. You can go ^ The only meeting with the respondent which Liberatore attended after the strike and prior to September 1 was the Reichart conference on August 18. THE NILES FIRE BRICK COMPANY 925 home." Liberatore testified further that he then went home. There is no evidence that. Liberatore ever worked after this incident. We think that this testimony shows that Liberatore quit. In view of the fact that the respondent found it necessary to give Liberatore work out in the open, away from silica dust, pursuant to the doc- tor's report, we think that the record.does not warrant a finding that Liberatore was given work creosoting ties in the sun in an effort to cause him to quit. We find that the respondent did not discharge Thomas Liberatore on October 29, 1937, and thereafter refuse to reinstate him because of his membership and activity in the Union or because he gave testimony under the Act. Wendell Mathews was employed by the respondent in August 1933 and worked as a kiln laborer prior to the strike. He joined the Union and was on the picket line during the strike. Mathews was not rein- stated at the end of the strike, but was given employment on August 19 as a result of the Reichart conference. Thereafter Mathews worked until November 2. The following day he reported for work at 4: 30 p. m. and was told by Gagany to return to work at 6 p. in. on the same day. Mathews testified that when he returned at the appointed hour Gagany "had changed order" and sent him home, that he became ill the following day, was under a doctor's care for 7 weeks, and "didn't go near the plant." Mathews received no employment with the respond- ent after he recovered from his illness. The respondent contends that Mathews was not given work at the end of the strike because there was no laboring work for him and because he appeared for work in a state of intoxication. In support of this contention, Sheehan testified that Mathews came to him about August 1 and inquired concerning employment, and that he advised Mathews that he would be put to work as soon as work was available. Sheehan also testified that Mathews was partly intoxicated on this occasion. In view of Mathews' positive testimony that he was an applicant for employment on August 2, and thereafter, and Sheehan's admission that Mathews applied to him for work "along the first of August," we do not think the respondent has satisfactorily explained its failure to give Mathews employment until after the Reichart conference. It will be noted that Sheehan did not claim in his testimony that his refusal to reinstate Mathews was due to his alleged intoxication, but based his refusal entirely on the fact that there was no work for Mathews. On the other hand, Mathews testified that a new man named "Joe" was given his job during the period from August 2 to August 19. The pay roll shows that Joe Demeretz, first employed by the respondent on August 2, worked during the entire month of Au- 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gust. We find that Joe Demeretz is the "Joe" referred to by Mathews. In addition to Demeretz, a number of employees hired during the strike worked on labor during the period from August 2 to August 19. The respondent introduced no evidence that Mathews could not do the work which these employees performed, nor was any explana- tion offered by the respondent for departing from its customary rule. of giving employment to the employees with greatest seniority. We find that the respondent refused to reinstate Mathews from August 2 to August 19 because of his membership and activity in the Union. We are unable to reach the same conclusion regarding the termina- tion of Mathews' employment on November 3. Although Mathews claimed, that he was not given regular work after his return to the respondent's employment his earnings until November 2 are com- parable to the earnings of other employees engaged in the same work The evidence concerning the events on November 3 is not sufficient to show that he was discharged on that date. Mathews' own testimony shows that after November 3 he was unable to work for a period of 7 weeks because of illness. He did not testify that he attempted to obtain employment with the respondent after he recovered from his illness. Under these circumstances, we find that the respondent did not dis- criminate against Mathews in regard to hire and tenure or terms and conditions of employment after August 19, 1937. Anthony Villio was employed by the respondent in 1926 and worked in the clay department at the time of the strike. He was engaged in wheeling bricks off the clay press. Villio was a member of the Union and of the grievance committee which met with the respondent's management, and was active on the picket line. After the strike ended, Villio was at the gate to the respondent's plant daily, but was not given employment until August 18.28 When Villio returned to work he was first given work as a shipper, but at the time of the hearing had resumed his old employment in the clay yard. Villio had no complaint regarding his employment at the time of the hearing, testifying that he was working whenever the plant operated. Villio testified that Huffman, an employee who had less seniority than Villio and who worked on the night shift prior to the strike, was given Villio's job on the day shift during the period from August 2 to August 18. Sheehan offered no explanation for the respondent's failure to give employment to Villio other than that there was no work for him. Foreman Pallante testified that "probably" the reason for m Although Villio did not testify that he received employment as a result of the Reichart conference we assume from the date of his reemployment that such was the case. THE NILES FIRE BRICK COMPANY 927 Villio not having been given work was that he was not there when the plant first started up and the "oldest fellows were put on." In view of Vi]lio's positive testimony that he applied for rein- statement at the end of the strike, and the vagueness and uncertainty of the respondent's supervisors on the point, we find that Villio applied for reinstatement on August 2, but that the respondent re-, fused to reinstate him. The respondent's pay roll shows that the respondent's rule as described by Pallante, of giving work to the "oldest fellows" was not applied in the case of Villio. Huffman was first employed by the respondent in 1934 whereas Villio, as before stated, began working for the respondent in 1926. The respondent introduced. no evidence to refute Villio's testimony that Huffman worked on the night shift prior to the strike and was given Villio's job on the day shift when the plant resumed normal operations at the end of the strike. We accept Villio's testimony as true in this respect. We find that the respondent refused to reinstate Villio from August 2 to August 18 because of his membership and activity in the Union. Alex Sabo was first employed by the respondent in 1927 and worked as an off-bearer in the clay department. Sabo was a member of the various union committees which met with the respondent before the strike. After the strike ended he did not obtain employment until August 21 when he was reinstated. He was still employed by the respondent at the time of the hearing. The respondent contends that after the strike ended Sabo did not apply for reinstatement until August 20, the day before he was rein- stated. As set forth in Section III A above, on August 14 Sabo and Villio told P. J. Sheehan that they had been sent by the president of the Union to try to make an agreement to return to work all the union members who had not been given employment after the strike ended. Sheehan replied, "Don't come here as a committee; come here as an individual and I might talk to you. Your organization is broken up and your officials have resigned, and I don't see where you can vouch for any man." It is plain that this request by Sabo and Villio was in effect an application for reinstatement made by the Union in behalf of union members, including Sabo and Villio, and we so find. Sheehan refused even to consider this application unless made by employees individually. An application for rein- statement may be made by employees through their Union. Shee- han's refusal to pay any attention to the request of Sabo and Villio was tantamount to a refusal to reinstate all employees for whom reinstatement was requested. We find, therefore, that Sabo applied for and was refused reinstatement on August 14. The conversation between Sabo and Sheehan on August 20, set forth above in Sec- 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion III A, shows why Sabo was not given work from August 14 to August 21 . Sabo told Sheehan that he was sorry for "blowing off, or having anything to do with union activities , and things like that." Sheehan replied, "All right Alex, I will take you back. You know you can't get anywhere by coming in here as a group . If you talk for yourself, you will get somewhere." We find that the respondent refused to reinstate Sabo from August 14 to August 21 because of his membership and activity in the Union. Anthony ( Tony) Nardo was employed by the respondent in May 1936 and worked as a laborer at the time of the strike . He joined the Union and was active on the picket line. At the end of the strike on August 2, Nardo was given employment by the respondent at common labor, work in which he was engaged prior to the strike. When the petition opposing a Board election was circulated in October, Nardo was requested to sign it by Shannon , a truck driver, but refused to do so. Thereafter, during the month of November, Nardo only received 5 days' employment . On November 23 Nardo was told by his foreman that it was useless for him to report to work because there would not be anything for him to do. Sheehan testified that he did not know why Nardo had not received work after November 23. Gagany testified that Nardo had not re- ceived work after that date because he was a "new" laborer and there was no work for him. The respondent's pay roll , however, shows that a number of employees hired by the respondent during and after the strike were retained in the respondent's employment doing labor work after Nardo was laid off on November 23. No explanation was offered by the respondent for the retention of these employees with less seniority than Nardo . Under these circum- stances and in view of the respondent's hostility toward, and efforts to destroy, the Union, we find that the respondent discharged Nardo on November 23 because of his membership and activity in the Union. From November 23 to the time of the hearing Nardo earned $45 at temporary employment. Mike Infante was first employed by the respondent in 1932 as a laborer in the clay yard. Infante joined the Union in June and was active on the picket line during the strike . He was returned to the respondent's employment "two or three days after the strike," and does not claim that he was discriminatorily refused employment after the strike ended and prior to his reinstatement. In December 1937 , while in the boiler room of the respondent's plant, Infante was approached by Aubrey Sheehan, who said, "How about joining the Independent Union?" Infante replied , "The hell THE NILES FIRE BRICK COMPANY 929 with you and the Independent Union. I am not signing nothing. Your father put me to work; I am going to work without signing nothing. I am going to mind my own business." After this inci- dent, Infante continued to work whenever the plant operated until the last pay day before Christmas, when he was laid off. He was given 1 day's work on January 10, but thereafter, although he went to the plant every day for a period of 3 weeks, was prohibited from going into the plant by the watchman, and did not receive employ- ment. After he was refused admittance to the plant, Infante talked to P. J. Sheehan, who told him that the work had to be "split up." Thereafter Infante spoke to Stover, his foreman, on one occasion and inquired concerning employment. Stover told him to "find yourself another job." The respondent contends that Infante was laid off because his job was "hacking" bricks for the shape moulders, that arrangements had been made whereby the moulders, and others on the "gang," hacked their own bricks, thereby eliminating Infante's job. The evidence supports the, respondent's contention that "hacking" bricks was taken over by the other members of the crew. Ballard Kelly, the setter on the crew on which Infante worked, did the "hacking" after Infante was laid off. Infante claimed, however, that even though this job had been abolished, he was not given the same treatment as his "buddy," who also worked as a hacker, but remained in the respond- ent's employ after Infante was dismissed. While Infante did not disclose the name of his "buddy," the respondent's pay roll shows that Infante and Joe Toney Ceroli were regularly employed as hackers until January 1939. We find that Ceroli is the "buddy" referred to by Infante. The 1 day's work given Infante in January was as an off-bearer in the clay department. Ceroli, too, was given work in this capacity in January, but unlike Infante, his employment did not terminate at the end of a day's work, but continued through- out January and February, and so far as the record shows, he was still so employed at the time of the hearing. It is clear from the record that both Ceroli and Infante were capable of doing the work of off-bearer in the clay department. A comparison of the seniority of the two employees shows that Infante was employed by the re- spondent in 1932 and Ceroli in 1934. The respondent introduced no evidence explaining why Ceroli was given employment in the capacity of off-bearer, whereas Infante, whose length of service with the re- spondent was almost double that of Ceroli, was dismissed, allegedly because the respondent had no work for him. Thus it is clear that the respondent did not afford Infante the preference in employment to which he was entitled by reason of his seniority. In view of this fact and the respondent's hostility to the Union and its domination 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and support of the Independent, it becomes apparent that Infante was discharged because of his adherence to the Union and his refusal to join the Independent at the request of Aubrey Sheehan. As set forth above in Section III A, Aubrey Sheehan used Infante's dis- charge to coerce employees into joining the Independent, stating to a number of employees on one occasion, "You know what Mike In- fante got for not having joined the union (Independent) and blow- ing off about the union, -and keeping other men from joining." The only conclusion permissible from all these facts is that after Infante refused to join the Independent at Aubrey Sheehan's request, the latter induced the respondent to dismiss Infante. We find that the respondent discharged Mike Infante on January 10, 1938, because of his membership and activity in the Union. From January 10, 1938, to the date of the hearing Inf ante had had only W. P. A. employment. Louis Pasha began his employment with the respondent in May 1933 as a brick setter. He joined the Union and was on the picket line during the strike. According to Pasha's testimony he applied for work on August 2, and was told by Pallante, foreman, to work with a ,crew composed of Marshall, Brandon, and Lee. He testified that these men did not com- pose his regular "gang"; that he objected to Pallante against working with Lee with whom he had had two . fights; and that Pallante told him that if he did not want to work with that "gang," and "keep your fight off the company ground," there was nothing that could be done. Pasha further testified that he then went home, went to Pittsburgh 2 days later with a fellow employee, and did not return to Niles until Saturday, August 14. On Monday, August 16, Pasha applied for work at the respondent's plant, but was unable to obtain employment. On August 23 Pasha spoke to Clingan at the gate to the plant and was given employment doing labor work. After working 2 days on labor, Pasha was given his old job as a brick setter. He, then continued to work regularly in this capacity until January 10, 1938, when he was dismissed, allegedly for setting the bricks improperly. At the time of his dismissal Pasha was vice president of the Union. Pallante's version of Pasha's refusal to accept employment on Au- gust 2 was substantially the same as that of Pasha. He testified, how- ever, that when Pasha refused to go to work he told Pasha that there was no other work for him at the time, and that when other crews were put to work Pasha would be sent for. Pasha admitted that when he returned from Pittsburgh he learned that the respondent had sent a messenger to his home in his absence to offer him employment, thus supporting Pallante's testimony regarding his intention of giving Pasha employment when other crews were put to work. In view of this THE NILES FIRE BRICK COMPANY 931 circumstance, we do not think that Pallante's offer to give Pasha work in a crew composed of employees personally obnoxious to Pasha was done with any ulterior motive. Pasha did not testify that employment in that crew would have penalized him in any way other than having to work with persons with whom he was on unfriendly terms. We find that the respondent did not refuse to reinstate Louis Pasha from Au- gust 2 until August 23 because of his membership and activity in the Union. Pasha admitted on cross-examination that the reason given him by the respondent for his dismissal on January 10, 1938, was that the bricks set by him in No. 9 kiln fell down when they were fired. He testified, however, that when these bricks were being set on November 27 he complained to Sheehan and Stover that bricks which were being set on the bottom of the kiln did not belong there, and was told by them to continue to set the bricks. Stover testified that on several occasions he had "to give Louis hell about the kind of setting he had been doing,?' and in January when No. 9 kiln was being emptied Sheehan called his attention to the fact that the kiln was falling down. Stover further testified that the records were checked and it was discovered that Pasha had set the bricks which had fallen. Both Stover and Sheehan testified that the bricks fell because they were set without "stickers" and that the respondent's rule required that all bricks be set with "stickers" so that they would not fall. Stover testified that Pasha was held at the gate by the watchman the day following the discovery of the fallen bricks; that he contacted Pasha there and requested him to go into the plant and examine the kiln which had fallen but that Pasha refused to do so; and that he then informed Pasha to go "get his time." In connection with Pasha's testimony that he had warned Sheehan that improper bricks were being set on the bottom in No. 9 kiln, Sheehan testified that Pasha's warning had reference to No. 8 kiln which had not been improperly set and had not fallen. Pasha did not deny that he had rejected the request of Stover to inspect the kiln which had fallen; nor did he deny that he had, failed to set the bricks with "stickers" in the kiln which had fallen. In view of the uncontradicted testimony introduced by the re- spondent to the effect that proper brick setting required the use of "stickers," that the bricks which fell in No. 9 kiln were set by Pasha, and that "stickers" had not been used in setting the bricks, we find that Louis Pasha was not discharged on January 10 because of his membership and activity in the Union. Albert Lazzari was first employed by the respondent in 1928 and worked as an off-bearer in the clay yard at the time of the strike. He was treasurer of the Union and was on the grievance committee 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which met with the respondent's management prior to the strike. Lazzari was reinstated on September 2, after he had applied to Sheehan for work on September 1 at the suggestion of "a man from the Labor Board." He testified that since September 2 he had re- ceived regular work whenever the plant was in operation and that he was still employed at the time of the hearing. The respondent contends that Lazzari was not given work from August 2 until September 2 because he did not apply for work until September 1. In this connection, Sheehan testified that Lazzari first came to him seeking employment the day before he was given work on September 2. At that-time, Sheehan testified, he questioned Lazzari regarding his whereabouts since the strike, and was informed by Lazzari that he had been assisting his father-in-law in construct- ing improvements to property, that he understood that Mike Infante had his job, and he "didn't want to bump Mike Infante" because In- fante "had a larger family." While Lazzari denied that he had made any statement to Sheehan about assisting anyone making "im- provements," he admitted making the statement about his reluctance to "bump" Infante. It does not appear that Lazzari was refused re- employment at the time of the Reichart conference on August 18 or that his case was considered at this conference. Under these circum- stances it is reasonable to infer that Lazzari had not applied for reemployment up to that time because, as pointed out above, only four union members who had not been reemployed prior to the conference were refused employment at the Reichart conference. Lazzari was not one of those four union members. We find that Lazzari applied for reinstatement for the first time on September 1. We find that the respondent did not refuse to reinstate Lazzari from August 2 until September 2 because of his union membership and activity. Joe Zoppetti began his employment with the respondent in the spring of 1934 and was working as an off-bearer in the silica press at the time of the strike. He was a member of the Union and active on the picket line. Zoppetti was not reemployed at the end of the strike and had not been given employment up to the time of the hearing. The respondent contends that Zoppetti voluntarily quit during the strike. Zoppetti was the press representative of the Union and his name was published in the newspaper in this connection before the strike. He testified that a few days before the strike ended Murphy, foreman, came to his home and stated that he had seen Zoppetti's name in the newspaper as an officer of the Union and that the respondent desired him to tear down a sign adverting to the strike at the respondent's plant. The sign was located on a public thoroughfare in front of the plant. Zoppetti testified that he told Murphy that he had not put THE NILES FIRE BRIOK COMPANY 933 the sign up and, "wasn't going to tear it off," and that Murphy then remarked that he "would be sorry, that was an order." At the end of the strike, Zoppetti testified, he applied to Sheehan for work but Sheehan refused to give him a "slip," that he was there- after refused admittance to the plant by the watchman, and that he spoke to Pallante, foreman, who told him that he did not "have a job there." Later, according to Zoppetti, he spoke to. Murphy, fore- man, at the gate to the plant and requested an advance of $5.00 "on the money that was coming to me." Zoppetti testified that Murphy did not answer him even after he had repeated his request, where- upon he became angry and told Murphy that. "seeing you won't ad- vance me a little money, why, then, I will quit; maybe you will pay me off." Zoppetti further testified that he then went to the re- spondent's office, saw "one of the girls" there, and informed her that he was quitting and desired his money; and that he was told that the paymaster, Gilbert, was in the hospital, and that for this reason would have to wait until pay day. Murphy admitted that he requested Zoppetti to remove the sign, but testified that the incident occurred about 3 days after the strike had ended, and denied that he made any threat when his request was refused. Murphy's testimony concerning Zoppetti's request for an advance was substantially the same as Zoppetti's except that Murphy claimed that the incident occurred during the strike and that he explained to Zoppetti that his request could not be granted because "the officials were away." The respondent's pay roll contains a notation that Zoppetti was "Paid off" the first day of the strike, thus supporting Murphy's testimony that the incident occurred dur- ing the strike. Moreover, there is no evidence in the record that Zoppetti's case was considered at the time of the Reichart conference. It is reasonable to assume that if Zoppetti had been discriminatorily refused reinstatement at the end of the strike some disposition would have been made of his case at that time. We find, therefore, that the advance incident occurred before the strike ended. It necessarily follows that Zoppetti was not refused employment at the end of the strike because of his union membership and activity, but that he voluntarily quit prior to that time, and we so find. Sam Vaccaro began his employment with the respondent in 1933 and was working as a setter wheeler at the time of the strike. He was a member of the Union, served on the picket line during the strike, and returned to the respondent's employment on August 2 in his old position. As set forth above in Section III A, in December 1937, Vaccaro was requested by Foreman Gagany to join the Independent and refused to do so. Vaccaro testified that he received no employment 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after he refused Gagany 's request. Although Vaccaro did not fix the date of his conversation with Gagany, or of the termination of his employment, the respondent's pay roll shows that December 10, 1937, was the last day on which he worked. On cross-examination Vaccaro admitted that he spoke to Foreman Stover in December about not receiving as much work as other employees, that he asked Stover concerning his prospects of receiv- ing regular employment, and that Stover informed him that there would be no work for him at that time and brought up the subject of W. P. A. employment. After some discussion , according to Vaccaro, he decided to seek W. P. A. employment . Thereafter he obtained W. P. A. work and was so employed at the time of the hearing. During the course of his testimony Vaccaro stated that the setting "gang" worked 1 week in the latter part of December, 3 weeks in January, a week in February , and that he received no employment during this entire period. Stover admitted talking with Vaccaro in December concerning W. P. A. employment . His version of the incident was that there were six men working on the setting "gang" in December, that there was not enough work for all of them , and that Vaccaro told him that he had an opportunity to obtain W. P. A. employment and asked what he, Stover, "thought of it." Stover testified that he told Vaccaro that Vaccaro "knew how the work was at the plant," that if he could get employment earning $50 or $60 a month "to go ahead and take it," and that when operations improved he would be given employment . Stover further testified that he had not seen Vaccaro from the time of this conversation until the hearing. A comparison of Vaccaro's earnings in December with that of other employees working in the same capacity does not indicate that any of them received much more employment than Vaccaro. The respondent's plant shut down on or about December 13 and opera- tions were not resumed until December 28. Consequently, there was no discrimination against Vaccaro during this period . Vaccaro earned $39 .12 between December 1 and 10, whereas most of the em- ployees engaged in the same capacity during December averaged between $41 and $42 for the entire month. We assume that these employees received some employment after the plant resumed opera- tions on December 28, which would account for their earnings being somewhat higher than Vaccaro's since he did not work after Decem- ber 10. We find that Vaccaro received a fair share of the available employment until the plant was shut down. Moreover, since neither Stover nor Vaccaro fixed the date of the conversation which led to Vaccaro's obtaining W. P. A. employment, we are unable to deter- mine whether Vaccaro's failure to receive employment after the THE N [LES FIRE BRIOK COMPANY 935 plant resumed operations on December 28 was due to the respondent's failure to give him employment , or to Vaccaro having obtained W. P. A. employment prior to that time. We find that the record does not support the allegation of the complaint that Sam Vaccaro was discharged and refused reinstate- ment by the respondent because of his union membership and activity. Anthony Liberatore, father of Tom Liberatore , had been employed by the respondent since 1919 as monorail ( crane ) operator. He was dismissed on October 29, 1937. Liberatore was a member of the Union and engaged in picketing during the strike. On August 2 he was reinstated to his old employment operating the monorail. The respondent contends that Liberatore was dismissed on Octo- ber 29 because the monorail had broken down and was abandoned on that date. All the witnesses who testified on the subject , includ- ing Anthony Liberatore , testified that the monorail did not operate after October 29. The respondent's pay roll shows that Liberatore and Griffin, the only two employees engaged in operating the mono- rail, were both laid off on October 29 . Griffin also had many years of service with the respondent . No evidence was introduced as to whether Griffin was a member of the Union or had engaged in any union activity. Under these circumstances we find that the record does not support the allegations of the complaint that Liberatore was discharged on October 29 because of his union membership and activity. Lawrence Preziuso was employed by the respondent in March 1934 and worked as a laborer on the grinder at the time of the strike. He joined the Union and was active on the picket line. Preziuso did not obtain employment on August 2, but was reinstated on August 18 as-a result of the Reichart conference . He was still employed by the respondent at the time of the hearing. Preziuso testified that he applied to P. J . Sheehan for work on the Friday before the strike was ended by the Union, and that Sheehan informed him that there were no gravel cars. Preziuso also testi- fied that he applied for work the following Monday, but that Carmen Villio was put to work in his place . Preziuso claimed discrimination because Villio was given work to which he was entitled . The re- spondent contends that after the strike ended Preziuso did not apply for work until after his place had been filled by another employee. Like Preziuso, Carmen Villio was a member of the Union and is named in the complaint as one of the persons discriminated against. Villio and Preziuso both worked as laborers before the strike, and Villio had greater seniority than Preziuso. 283029-41--vol. 18-60 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Villio was as active in the Union as Preziuso. Under these cir- cumstances no discrimination appears from the giving of employment to Villio in preference to Preziuso. We find that the record does not support the allegation of the complaint that the respondent dis- criminated against Preziuso because of his membership and activity in the Union. Carmen Villio, Hubert Ashburn, and Lawrence Infante. We find that the record does not support the allegations of the complaint in respect to these three men and concur in the Trial Examiner's recom- mendation that the complaint be dismissed as to them. Since the Union did not file exceptions to the Intermediate Report, we will not discuss the alleged discrimination as to these three men in detail. We find that the respondent has discriminated in regard to the hire and tenure and terms and conditions of employment of Paul Yarwood, John Bacos, Nick Nacco, Harry Evans, Alex Miller, Joe Villio, Alex Sabo, Heman Estes, John Toth, Alfred Whitt, Thomas Liberatore, Wendell Mathews, Anthony Villio, Anthony (Tony) Nardo, and Mike Infante, and has thereby discouraged membership in the Union and interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act. We find that the respondent has discriminated in regard to the hire and tenure and terms and conditions of employment of Paul Yarwood because he had given testimony under the National Labor Relations Act. We find that the respondent has not discriminated in regard to the hire and tenure or terms and conditions of employment of Louis Pasha, Albert Lazzari, Joe Zoppetti, Sam Vaccaro, Anthony Libera- tore, Lawrence Preziuso, Carmen Villio, Robert Ashburn, and Law- rence Infante, and has not thereby discouraged membership in the Union or encouraged membership in the Independent. We find that the respondent has not discriminated in regard to the hire and tenure or terms and conditions of employment of Thomas Liberatore because he gave testimony under the Act. D. The alleged refusal to bargain with the Union 1. The appropriate unit The complaint alleges that all the respondent's production and maintenance employees, excluding supervisory and clerical em- ployees, mill police, watchmen, and timekeepers constitute a unit ap . propriate for the purposes of collective bargaining. In its answer the respondent denied that the unit alleged in the complaint is ap- propriate, but introduced no evidence at either of the hearings to THE NILES FIRE BRICK COMPANY 937 show that such unit was not appropriate . The employees composing the unit alleged to be appropriate are eligible for membership in the Union. The unit is a normal industrial bargaining unit. We find that all the respondent's production and maintenance em- ployees, excluding supervisory and clerical employees, mill police, watchmen, and timekeepers, constituted a unit appropriate for the purpose of collective bargaining and that said unit insures to the employees of the respondent the full benefit of their right to self- organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit The respondent's pay roll shows that the respondent employed approximately 204 employees in the appropriate unit during the period from July 1. to July 15, 1937. At the hearing in Case No. R-362 Thomas Liberatore testified that 165 of these employees signed membership cards in the Union prior to the beginning of the strike on July 19. The Union did not introduce the membership cards in evidence, but stated that it was willing to submit them to the Trial Examiner for comparison with the pay roll and any authentic signa- ture records the respondent might possess . The Trial Examiner re- fused to receive the cards without according the respondent an op- portunity to inspect them. No further proof of membership in the Union was offered at the hearing in the consolidated case. At the hearing the respondent contended that the Union did not represent a majority of the respondent's employees . While the unfair labor practices of the respondent set forth above afford ample justification for the Union's precaution in not disclosing the names of its mem- bers, we are nevertheless unable to find that the Union represented a majority of the employees in the appropriate unit. It is solely for this reason that we do not find that the respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom . In order 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to'effectuate the purposes and policies of the Act and as a means of removing and avoiding the consequences of the respondent's unfair labor practices, it is essential that in aid of our cease and desist order the respondent be directed to take certain affirmative action, more particularly described below. We have found that the respondent has dominated and interfered with the formation and administration of Brick Workers' Inde- pendent Organization and has contributed support to it. Its con- tinued existence is a consequence of violation of the Act thwarting the purposes of the Act and rendering ineffective a mere order to cease and desist the unfair labor practices.27 In order to effectuate the policies of the Act and free the employees of the respondent from such domination and interference and the effects thereof, which con- stitute a continuing obstacle to the exercise by the employees of the rights guaranteed them by the Act, we shall order the respondent to withdraw and refrain from any recognition of the Independent as representative of any of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of. work, and to disestablish it as such representative.28 We have found that the employees listed in Appendix A, Appendix B, and Appendix C went on strike on July 19, 1937, because of the respondent's unfair labor practices and that the respondent discrimi- nated against them in regard to their hire and tenure and terms and conditions of employment. We shall order the respondent to offer to the employees listed in Appendix A reinstatement to the positions occupied by them at the commencement of the strike on July 19, 1937, or to substantially equivalent positions. Such reinstatement shall be effected in the following manner : All persons hired after July 19, 1937, shall, if necessary to provide employment for those to be offered reinstatement, be dismissed. If, thereupon, by reason of a reduction in force, there is not sufficient employment immedi- ately available for the remaining employees, including those to be offered reinstatement, all available positions shall be distributed among such remaining employees in accordance with the respond- ent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities following a system of seniority to such extent as was applied in the conduct of the respondent's business prior to July 19, 1937. Those employees remaining after such distribution, for whom no employ- ment is immediately available, shall be placed upon a preferential list 27 Consolidated Edison Company v. National Labor Relations Board, 305 U. S. 197. 28 National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., et al., 303 U. S. 261 ; National Labor Relations Board v. Pacific Greyhound Lines, Inc., 303 U. S. 372; National Labor Relations Board v. Fansteel Metallurgical Corporation, 306 U. S. 240. THE NILES FIRE BRICK COMPANY 939 prepared in accordance with the principles set forth in the previous sentence, and shall thereafter, in accordance with such list, be offered employment in their former or in substantially equivalent positions, as such employment becomes available and before other persons are hired for such work. We shall order the respondent to make the employees listed in Appendix A whole for any loss of pay they may have suffered by reason of the respondent's discriminatory refusal to give them em- ployment during the period listed opposite their respective names in said Appendix, and/or by reason of their subsequent discriminatory discharges on the dates listed opposite their respective names in said Appendix, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages during the period in which the respondent refused to give him em- ployment and/or during the period from the date of his discharge to the date of the respondent's offer of reinstatement or placement upon the preferential list, less his net earnings,23 if any during said periods. We shall also order the respondent to make the employees listed in Appendix B whole for any loss of pay they may have suf- fered by reason of the respondent's refusal to give them employment during the periods listed opposite their respective names in said Appendix, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages, less his net earnings, if any, during said period. We shall also order the respondent to make the employees listed in Appendix C whole for any loss of pay they may have suffered by reason of the respondent's discriminating against them during the periods listed opposite their respective names in said Appendix by payment to each of them a sum of money equal to the amount which he would have earned as wages during said period had the respondent given him the kind and/or amount of work to which he was entitled, less the wages he received from the respondent during said period. We have found that the respondent did not discriminate against the employees listed in Appendix D in regard to hire and tenure and terms and conditions of employment. We shall, therefore, dismiss w 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 termination of employment and the consequent necessity of his seeking employ- ment 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 pro- vided 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 . Republic Steel Corporation, et al. v. National Labor Relations Board, et al., 107 F. ( 2d) 472 (C. C. A. 3). 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the complaint with respect to them. We shall also dismiss the com- plaint in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. VI. THE UNION'S PETITION FOR AN INVESTIGATION AND CERTIFICATION OF REPRESENTATIVES In view of the long lapse of time since the hearing, we shall dis- miss without prejudice the petition of the Union for an investigation and certification of representatives. Upon the basis of the above findings of fact and upon the entire record in the consolidated cases, the Board makes the following : CONCLUSIONS OF LAW 1. United Brick Workers' L. I. U. No. 198 and Brick Workers' Independent Organization are labor organizations within the mean- ing of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and ad- ministration of, and by contributing support to Brick Workers' Inde- pendent Organization, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. By discriminating against the employees listed in Appendix A, Appendix B, and Appendix C in regard to their hire and tenure and terms and conditions of employment, thereby discouraging mem- bership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. By discriminating in regard to the hire and tenure and terms and conditions of employment of Paul Yarwood because he had given testimony under the National Labor Relations Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (4) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 7. The respondent has not engaged in unfair labor practices with- in the meaning of the Act by discharging or laying off or refusing to reinstate the employees listed in Appendix D. THE NILES FIRE BRICK COMPANY 941 8. The respondent has not engaged in unfair labor practices with- in the meaning of Section 8 (4) of the Act in connection with the termination of the employment of Thomas Liberatore on October 29, 1937. 9. The respondent has not engaged in unfair labor practices with- in the meaning of Section 8 (5) of the Act. 10. All the production and maintenance employees of the respond- ent, excluding supervisory and clerical employees, mill police, watch- men, and timekeepers, constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. ORDER Upon £he basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, The Niles Fire Brick Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of Brick Workers' Independent Organization, or dominating or interfering with the formation or administration of any other labor organization of its employees, and contributing any support to Brick Workers' Independent Organization, or to any other labor organization of its employees ; (b) Discouraging membership in United Brick Workers' L. I. U. No. 198, or in any other labor organization of its employees, by dis- charging, laying off, or refusing employment to any of its employees, or in any other manner discriminating in regard to the hire and tenure of their employment, or any terms or conditions of their em- ployment; (c) Discharging, laying off, refusing to reinstate, or otherwise dis- criminating against any employee because he has given testimony under the Act; (d) 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, and to engage in con- certed activities, for the purpose of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from and refrain from recognizing Brick Workers' Independent Organization as the representative of 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any of the 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 Brick Workers' Independent Organization as such representative; (b) Offer to the employees listed in Appendix A immediate and full reinstatement to the positions occupied by them at the com- mencement of the strike on July 19, 1937, or to substantially equiva- lent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the section entitled "The Remedy" above, placing those employees for whom employment is not immediately available upon a preferential list in the manner set forth in said section, and thereafter, in said manner, offer them em- ployment as it becomes available; (c) Make whole the employees listed in Appendix A for any loss of pay they may have suffered by reason of the respondent's dis- criminatory refusal to give them employment during the periods listed opposite their respective names in said Appendix, and/or by reason of their discriminatory discharges on the dates listed oppo- site their respective names in said Appendix, by payment to each of them respectively of a sum of money equal to that which he nor- mally would have earned as wages during the period in which the respondent refused to give him employment and/or during the period from the date of his discharge to the date of the respondent's offer of reinstatement or placement upon the preferential list, less his net earnings,3° if any, during said periods; provided that the respondent shall deduct from the back pay due each of said employees a sum equal to that received by him for work done upon Federal, State, county, municipal, or other work-relief project during the period from which back pay is due him under this Order, and shall pay any such amount deducted to the appropriate fiscal agency of the Fed-' eral, State, county, municipal, or other government financing such work-relief project; (d) Make whole the employees listed in Appendix B for any loss of pay they may have suffered by reason of the respondent's refusal to give them employment during the periods listed opposite their respective names in said Appendix, by payment to each of them of a sum of money equal to that which he normally 'would have earned as wages, less his net earnings '30 if any, during said period; provided that the respondent shall deduct from the back pay due each of said employees a sum equal to that received by him for work done upon Federal, State, county, municipal or other work-relief project during the period from which back pay is due him under this Order, and 80 See footnote 29, supra. THE NILES FIRE BRICK COMPANY 943 shall pay any such amount deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government financ ing such work-relief project; (e) Make whole the employees listed in Appendix C for any loss of pay they may have suffered by reason of the respondent's dis- crimination against them during the periods listed opposite their respective names in said Appendix , by payment to each of them of a sum of money equal to that which he would have earned as wages during said period, had the respondent given him the kind and/or amount of work to which he was entitled, less the wages he received from the respondent during said period; (f) Post immediately in conspicuous places in each department of the respondent's plant, and keep posted for a period of at least sixty (60) consecutive days from the date of posting , notices stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), (c), and (d) and that it will take the affirmative action set forth in 2 (a), (b), (c ), (d), and ( e) of this Order, and that the respondent's employees are free to become or remain members of United Brick Workers' L. I. U. No. 198, and that the respondent will not discriminate against any employee because of membership or activity in that organization; (g) Notify the Regional Director for the Eighth Region in writing, within ten ( 10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act, has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to the persons listed in Appendix D, and has engaged in unfair labor practices within the meaning of Section 8 (4) of the Act with respect to Thomas Liberatore. AND IT IS FURTHER ORDERED that the petition of the Union for an investigation and certification of representatives be, and it hereby is. dismissed without prejudice. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A Period during which discriminatorily refused em- ployment after ending of strike on August 2, 1937 Date of discharge Paul Yarwood--------------- August 2, 1937-August 18, 1937-------------------- December 3,'1937. John Bacos----------------- August 2, 1937-August 18, 1937-------------------- November 12, 1937. Nick Nacco ----------------- August 2, 1937-August 18, 1937-------------------- December 3, 1937. Harry Evans---------------- August 2, 1937-August 18, 1937-------------------- January 2, 1938. Alex Miller ------------------ August 2 , 1937-August 19, 1937---- ---------------- October 29, 1937. Joe Villio------------------- August 2, 1937-August 18, 1937-------------------- December 7 1937. Heman Estes---------------- Mik I f t August 2, 1937-September 1, 1937------------------ , December 28, 1937. e n an e---------------- --------------------------------- --------------- January 10, 1938. Anthony (Tony) Nardo----- ---------------------------------------------------- November 23, 1937. APPENDIX B - Anthony Villio -------------- John Toth ------------------- Alfred Whitt ---------------- Wendell Mathews ----------- Thomas Liberatore ---------- Alex Sabo- ------------------ August 2, 1937-August 18, 1937. August 2, 1937-September 1, 1937. August 2, 1937-August 18, 1937. August 2, 1937-August 19, 1937. August 7, 1937-August 18, 1937. August 14, 1937-August 21, 1937. APPENDIX C Period of discrimination in kind and/or amount of work Paul Yarwood------------------------- November 13, 1937-December 3, 1937. Harry Evans-------------------------- September 1, 1937-December 3, 1938. Joe Villio------------------------------ August 18, 1937-December 7, 1938. APPENDIX D Louis Pasha Lawrence Preziuso Albert Lazzari Carmen Villio Joe Zoppetti Hubert Ashburn Sam Vacca.ro Lawrence Infante Anthony Liberatore MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.