Florence Pipe Foundry & Machine Co.

In the Matter of FLORENCE PIPE FOUNDRY & MACHINE CO. and STEEL WORKERS ORGANIZING COMMITTEE (C. I. 0.) Case No. C-980.-Decided January 5, 1940 Iron Pipe, Pipe Fittings, and Hydraulic iltach-inery Manufacturing Industry- Interference, Restraint, and Coercion : expressed opposition to labor organiza- tion ; espionage-Company-Dominated Union : domination of and interference with formation and administration ; partiality shown in form of special privileges granted; participation and representation by supervisory employees; coercion to join; disestablished, as agency for collective bargaining-Contract: with com- pany-dominated union, invalid ; employer ordered to cease giving effect to- Discrimination: lay-offs and discharge, for union activity-Collective Bargaining: charges of failure to, dismissed-Reinstatement Ordered-Back Pay: awarded. Mr. L. Libbin, for the Board. . Foulkrod, Sheppard, Porter & Alexander, by Mr. Walter L. Shep- pard and Mr. F. Raymond Wadlinger, of Philadelphia, Pa., for the respondent. Mr. Richard H. Meigs, of counsel to the Board. DECISION AND ORDER STATEMENT OF TIIE CASE Charges and amended charges having been duly filed by Steel Work- ers Organizing Committee (C. I. 0.), herein called the S. W. O. C., the National Labor Relations Board, herein called the Board, by by Bennet F. Schauffler, Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its complaint, dated July 20, 1938, against Florence Pipe Foundry & Machine Co., Florence, New Jersey, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent and the S. W. 0. C. In respect to the unfair labor practices, the complaint alleged in sub- stance that the respondent (1) spied.upon, persuaded, threatened, and otherwise coerced its employees and restrained them in the exercise 19 N. L. R. B., No. 13. 68 FLORENCE PIPE FOUNDRY & MACHINE CO. 69 of the rights guaranteed by. Section 7 of the Act; (2 )..fostered,. domi-. nated, and interfered with the formation and administration of a labor organization known as Employees Committee Union , herein called the E. C. U.; (3 ) terminated the employment of certain named, employees by reason of their membership in and activities in connec-. tion with the S. W. O. C.; and (4) refused to bargain collectively with the S. W. O. C., although it represented a majority of the respondent's employees in an appropriate unit. ' On July 28, 1938, the respondent filed an answer to the complaint, denying that it had engaged in the unfair labor practices alleged therein. Pursuant to notice a hearing was held on August 1, 2, 3, 4, 5, 8, and 9,, 1938, at Burlington , New Jersey , before Martin Raphael , the Trial. Examiner duly designated by the Board. The Board and the respond-. ent were represented by counsel and participated in the hearing. Full. opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties.. During the course of the hearing the Trial Examiner granted a motion_ by the Board to dismiss without prejudice those allegations in the. complaint having reference to Enrico Paolucci and George Alvord. The Trial Examiner also made several rulings on objections to the, admission of evidence . The Board has reviewed these rulings and the, rulings made with respect to other motions of the parties and finds, that no prejudicial errors were committed . The rulings are hereby affirmed. Thereafter, on October 22, 1938, the Trial Examiner filed and duly- served upon the respondent and the S. W. O. C. his Intermediate Report, finding that the respondent had engaged in and is engaging- in unfair labor practices affecting commerce within the meaning of- Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act,, and recommending that the respondent cease and desist therefrom, and take certain affirmative action designed to effectuate the policies: of the Act . He further found that the respondent did not refuse to. bargain collectively with the S. W. O. C. within the meaning of Section 8 ( 5) of the Act, and recommended that the complaint, as it., relates to such alleged refusal to bargain collectively , be dismissed'.. On October 31, 1938, the respondent filed exceptions to the Inter- mediate Report and requested an opportunity to be heard in oral, argument before the Board. On October 3, 1939, the respondent filed, with the Board a brief in support of its exceptions . Pursuant to no- tice, a hearing was held before the Board in Washington, D. C., for, the purpose of oral argument . The respondent was represented by- counsel and participated in the oral argument. The S. W. O. C. did; not appear. 283030-41-vol. 10-G 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board -has reviewed the respondent 's brief and its exceptions to the Intermediate Report, and save as consistent with the findings, conclusions, and order, hereinafter set forth , finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Florence Pipe Foundry & Machine Co., is a cor• poration duly organized and existing by virtue of the laws of the State of New Jersey, having its office and principal place of business in Florence, New Jersey. The respondent is engaged in the manu- facture, sale, and distribution of cast-iron pipes and pipe fittings, fire hydrants, and various types of hydraulic machinery. Its exclusive sales agent is R. D. Wood Company, a wholly owned subsidiary, of Philadelphia, Pennsylvania. The respondent employs approximately 600 persons. In the course of its business during the year 1937, the respondent used raw materials valued at $1,511,355.85, of which approximately 80 per cent were received from sources outside the State of New Jersey. The respondent's total net sales for the year 1937 amounted. to $3,361,900.75, of which approximately 81 per cent were sold and shipped to points outside the State of New Jersey. The respondent admits that it is engaged in interstate commerce. II. THE ORGANIZATIONS INVOLVED Steel Workers Organizing Committee, affiliated with the Com- mittee for Industrial Organization,' herein called the C. I. 0., is a labor organization admitting to its membership production and main- tenance employees of the respondent, excluding foremen and clerical and supervisory employees. Employees' Committee Union is an unaffiliated labor organization admitting to its membership all hourly or piece-paid employees of the respondent, excluding watchmen. III. THE UNFAIR LABOR PRACTICES -A. Background In July 1933 the respondent formulated an employee representa- tion plan and initiated it by enclosing a copy thereof in the pay envelopes of its employees. Thereafter, pursuant to the plan, an elec- tion by secret ballot was conducted resulting in the election of five ' Now the Congress of Industrial Organizations. FLORENCE PIPE FOUNDRY & MACHINE CO. 71 representatives from among the respondent's employees. Five addi- tional representatives were appointed by the respondent. While no qualifications were required for the respondent's appointees, em- ployees, to, be eligible for election as representatives, were required to be (a) 21 years old; (b) American citizens; and (c) employed by the respondent for at least 1 year. Under the plan, elections of em- ployee representatives were held once each year in the respondent's plant during working hours and were attended by foremen and super- visory employees. Ballots were caused to be printed, paid for, and distributed by the management.' Employees were paid for the work- ing time consumed by the balloting.. All- other expenses incurred in the operation of the plan were also defrayed by the respondent. Con- sequently employees were not required to pay membership dues. Meetings of the employee representatives were held once each alter- nate month in one of the respondent's offices; the meetings frequently commenced during working hours, and were often attended by Peake and Epley, plant superintendent and assistant superintendent, re- spectively. Meetings of the management's representatives followed immediately upon those of the employee representatives, and were attended by Epley and by Goddard, Peake's secretary, who acted as secretary in meetings of both groups of representatives. Written minutes of the meetings of the employee representatives were fur- nished to the management's representatives on these occasions. No general meeting of the employees was ever held. They were advised of the decisions and activities of the joint representative body by notices posted on the respondent's bulletin boards. The plan also provided for joint meetings of the two groups of representatives after each annual election for the purpose of appoint- ing committees to deal with, among other things, hours of work, wages, working conditions, athletics, and recreation. The following provi- sions relative to the handling of grievances were embodied in the plan: The aggrieved employee must first attempt to adjust his com- plaint with his foreman; failing ' that, he must successively present his grievance to the superintendent and to the respondent's special representative. If the grievance could not be adjusted by this pro- cedure, the matter could then be referred to the general committee on appeals; if the latter could not resolve the dispute, the respondent's president and a majority of the employee representatives could then refer the question to an arbitrator. No specific method of selecting the arbitrator was defined in the plan. After July 5, 1935, the date upon which the Act became effective, the respondent made no effort to dissolve its employee representation plan. On the contrary, the record shows that at a meeting held shortly after the Act became a law, Superintendent Peake informed the em- ° 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees that the respondent had decided to continue the plan in effect because it considered it favorable to the employees . Actually, the plan remained in effect until June 1937 when Peake, at a joint meeting of the two groups of representatives , announced that in view of the fact that the Supreme Court of the United States had upheld the consti- tutionality of the Act, no further meetings under the plan could be held, but that the men would have to form their own union, pay their own expenses, and conduct their meetings outside of the respondent's premises. It is plain that the respondent dominated the formation and administration of the employee representation plan and con- tributed financial and other support to it. B. Interference , restraint, and coercion On or about June 15,1937, the S. W. O. C. initiated an organizational drive among the respondent 's employees. Thereafter, meetings of the nascent labor organization were held weekly. Officers were elected on September 15, 1937, and subsequently a charter was installed on Sep- tember 23, 1937. As the S. W. O. C.'s activities in the plant increased , the respondent, through its officials and foremen, openly expressed opposition and hostility. Leonard Hunt, an employee representative under " the old plan, testified that in June 1937, Superintendent Peake stated to him that he did not want the C. I. O. Mundorff, an employee active in the S. W. O. C. movement , testified that in the summer of 1937, Good- win Donnelly, Jr., a foreman , stated to him that the C. I. O. was, composed of Bolsheviks and foreigners . Mundorff further testified that Miller, another foreman, informed him that C. I. O. members in the employment of the respondent would be discharged one by one_ Joseph Thomas, an employee active in S. W . O. C. affairs, testified that in September 1937, John Durham, foreman and E. C. U. officer, re- marked to him that no one belonged to the C. 1. 0. except "those Guinea- sons-of-bitches, and they ought to put them back in a ship and send them back over to the other side where they belong ." The anti-union statements described above were categorically denied by the persons. to whom they were ascribed . However, the Trial Examiner , who had opportunity to observe the witnesses as they testified , found that such. statements were in fact made, and after consideration of all the evi-- dence, we accept the Trial Examiner 's finding in this respect. As noted above, the S. W. O. C. elected officers at a meeting on September 15, 1937. James Dougherty, a weighmaster and part-time- watchman, attended the meeting "just for curiosity." Dougherty admitted at the hearing that he wrote down the names of the respond- ent's employees who were elected to office in the S. W. O. C. that night "for his own information." Dougherty testified that he knew the-. FLORENCE PIPE FOUNDRY & MACHINE CO. 73 names of nearly all the men in the plant. When questioned as to his reason for writing the names in view of this familiarity , he was unable to explain his action. Dougherty's memory also lapsed when ques- tioned as to the whereabouts of the paper upon which he copied the names. During the meeting Dougherty was ordered by S. W. O. C. Organizer Kelly to leave the hall, by reason of the confidential nature of his employment with the respondent. Gang Leader Joe Ingham, an employee representative under the old plan and principal and most active solicitor for the E. C. U., was also present at the meeting. George Strick, an E. C. U. member, testified that at the request of General Foreman John Sweeney, Sr., he attended two S . W. O. C. meetings and reported to Sweeney at the latter's home the events which occurred . Strick's testimony relative to Sweeney's first request was as follows : . He told me it would be to my benefit to attend ; if the C. I. O. got in here, men like you old men would be routed out. I said, "All right, I will go if that is orders." He said, "That is orders." "All right, sir, I will go." "Stop at my home and let me know the procedure." I did. 'Sweeney denied having asked Strick to perform these services, but testified- that Strick voluntarily visited his house after "a meeting" and attempted to relate the proceedings which took place there. Sweeney protested, however, that he was "too wise to discuss it with him," and that he did not encourage Strick to talk, whereupon Strick left without having divulged any significant information. The record shows, however, that, despite Sweeney's alleged indifference, Strick attended a second S. W. O. C. meeting, after which he again "volun- tarily" visited Sweeney at his home. On this last-named occasion he proffered to Sweeney a list of the respondent's employees who had attended the meeting. Sweeney testified that he "saw what it was leading up to," and very courteously asked Strick not to stop at his home any more . He also testified that he informed Strick "I am not interested in the list. Please don't discuss it." The Trial Examiner, who had opportunity to observe the witnesses as they testified, found that Strick's version of the circumstances surrounding his attendance of the S. W. O. C. meetings was more credible than the testimony of Sweeney. In view of the respondent's attitude of open hostility toward the S. W. O. C. and in view of the coincidental and highly suspicious circumstances of Strick's allegedly voluntary assumption of the office of purveyor of confidential S. W. O. C. information, we accept the Trial Examiner's finding that Strick was requested by Sweeney to attend the S. W. O. C. meetings and to obtain information necessary to enable the respondent to conduct its opposition to the S. W. O. C. more effectively. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shortly after the above-described meetings, Jones and Petty, the respondent's employees who were elected at said meetings to the. S. W. O. C. offices of treasurer and inner guard respectively, were laid off by the respondent. - Thomas, another employee who was also, present at the meetings, was also laid off shortly thereafter. The circumstances surrounding these lay-offs will hereinafter be described fully. j1Te find that the respondent, by assigning men to observe and report on S. W. O. C. meetings, and by employing threats, warnings, and persuasion to influence its employees in their choice of union affil- iation, has interfered with, restrained , and coerced 'its employees in the exercise of the rights guaranteed in Section 7 of the Act. C. Interference with and domination of the formation and adminis- tration of the E. C. U. Following the abandonment of its employee representation plan in June 1937, efforts were made by various employees to initiate a labor organization to supplant . the form of representation formerly provided for under the plan. On or about June 22, 1937, one Prothe- roe and several other ex-employee representatives determined to hold a meeting of the respondent's employees "on the outside" to. discuss the formation of a union. To defray the cost of such meetings con- tributions were solicited among the employees. Pursuant to a notice posted with the permission of the respondent on the company 's bulle- tin hoards, a meeting was held on rented premises in Florence, New Jersey, and was attended by approximately 170 of the respondent's 600 employees. The form which the proposed labor organization was to take was submitted to a vote. Approximately 100 votes were cast for an "inside" union and 70 for an "outside" union. Subse- quently, about July 1937 , Protheroe prepared and caused to be printed a number of application blanks for membership in a new organiza- tion to be known as Employees Representative Union. Ingham, a gang leader, and Ciceretti , both of whom had been employee repre- sentatives under the old plan, assisted Protheroe by distributing a number of these forms among the employees in the sand -spun de- partment. On the morning of the next pay day , Protheroe, with permission of Donnelly , a foreman, deposited a number of applica- tions in the respondent 's time-card racks. In some cases the applica- tions were clipped to the time cards of the individual employees. Protheroe also obtained the permission of Superintendent Peake, who was aware of the nature of the applications for membership in the "inside" union, to stand in or near the office and receive the applica- tions from the men as they received their pay. In order to perform this function , Protheroe, without objection from the respondent's FLORENCE PIPE FOUNDRY & MACHINE CO. 75 officials, took 2 hours off from his working time without receiving a corresponding deduction in pay. As the applications were being col- lected, Arthur Foulks, the respondent's head watchman, upbraided some of the men for not taking a blank, and stated, "If you don't sign now you will have to sign later." Foulks denied having made the aforesaid statement or in any other way influenced the men on their choice of union affiliation. However, the Trial Examiner found that Foulks did make such statement, and a consideration of all the. evidence causes us to accept the finding of the Trial Examiner. Subsequently, a self-appointed committee composed of employees- who had acted as representatives under the old plan prepared two. types of forms for distribution among the employees, namely, an authorization empowering the "Employees' Committee Union of the Florence Pipe Foundry Company" to act for the signatory thereon as the sole collective bargaining agent respecting wages, hours of em- ployment, etc., and a membership card of an organization known as. Employees' Committee Union. (At Ingham's suggestion the name,. Employees Representative Union, originally selected for the new labor organization by Protheroe, was changed to Employees' Com- mittee Union.) These forms were distributed to the respondent's. employees by representatives acting for the E. C. U. In July and August 1937, the E. C. U. held meetings at various- times in offices of the company. Notices of these meetings were posted on the respondent's bulletin boards with its permission. In the first part of October 1937 the E. C. U. conducted an election of officers in the respondent's plant. Ballots were distributed to the men during working hours and some were placed in the time-card racks. They were collected by Ciceretti, who was stationed near the plant office, receiving the ballots of the men as they presented them- selves at the office to receive their pay checks. The respondent's of- ficials made no objection to this procedure. Numerous witnesses testified that, during the period from July to, December 1937, they were solicited during working hours to join the E. C. U. by one of several supervisory employees, namely, John Dur- ham and Goodwin Donnelly, Jr., foremen, Edgar Plack, substitute foreman, and Harry Perret, assistant foreman. Both Durham and Plack admitted that they had engaged in such solicitation.. Donnelly and Perret denied that they engaged in union activities of any nature. However, in view of the respondent's hostility toward the S. W. O. C. and its clearly shown partiality toward the E. C. U., we believe that they, too, solicited on behalf of the E. C. U. The credible evidence further shows that some of the respondent's employees were advised by foremen and E. C. U. representatives that the E. C. U. was en- dorsed by and had the approval of the respondent's officials. Thus, in July 1937, Foreman Burleigh assembled the men in his department 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and informed them that Superintendent 'Peake thanked them all "for joining the inside union." Again, in the early part of September 1937, James Connor, electricians' representative of the E. C. U., pre- sented an E. C. U. membership application blank to one Elmer Jones and informed him that Foreman George Pfeffer desired that every- one in the electrical department should join the "company union." Contemporaneous with the advanced stages of the E. C. U.'s forma- tion, Conferences between representatives of the respondent and the E. C. U. were held for the purpose of negotiating a collective bargain- ing agreement. At these meetings , Gang Leader Ingham acted as Chairman and principal representative. On one such occasion Ing- ham advised Peake that the E . C. U. represented 51 per cent of the respondent's employees. Peake requested an affidavit to that effect. Thereupon, Ingham drafted and presented to Peake, as proof of majority, a document stating in substance that a majority of the employees desired the E. C. U. to represent them as sole bargaining agency. In place of signatures the document contained the type- written names of certain persons under the caption "Elected Officers of the Employees Committee Union. " Peake rejected the document on the ground that it was not sufficient proof, and requested Ingham to submit an affidavit to the effect that the E. C. U. represented 51 per cent of the respondent's employees . Pursuant to this latter re- quest, Ingham prepared and presented to Peake for his approval a notarized letter addressed to Peake and signed by the temporary elected officers of the E. C. U. The letter stated, in substance, that the E. C. U. represented a majority of the respondent's employees for the purposes of collective bargaining and requested that' said organi- zation be recognized as the bargaining agent for such employees. Ingham also offered for Peake's inspection a group of E. C. U. mem- bership acceptances , which he placed face down on Peake's desk. Peake, however, deemed the notarized letter sufficient proof of the E. C. U.'s majority and declined to examine the acceptances. The record shows that neither the acceptances nor the membership cards of the E. C. U. were checked by the respondent against its pay roll at any time prior to the hearing. In short, the notarized letter con- situted the sole basis for the respondent 's recognition of the E. C. U. as the bargaining representative of its employees. Thereafter negotiations for a collective bargaining contract were resumed. Several meetings between representatives of the respondent and the E. C. U. were conducted , at which the former readily agreed to most of the terms suggested by the E. C. U. Ingham testified as follows on this point : Q. Everything you asked for, Mr. Peake agreed to, is that right? FLORENCE PIPE FOUNDRY & MACHINE CO. 77 A. As far as I can remember. Q. Is that right? A. Right. The contract with the E. C. U. was signed by the respondent on or about November 22, 1937, and by its terms was to remain in effect until 1 year from the date of its execution, with the option of re- newal upon agreement of both parties thereto. Under this agree- ment the respondent recognized the E. C. U. as the "agency through which all terms and conditions affecting hours, wages and working conditions shall be mediated.." For the most part the terms in the contract embodied conditions under which the employees had, for some time, been working. However, it appears that the E. C. U. did request a minimum hourly rate of 621/2 cents, which the respondent rejected. A week prior to the date of the signing of the contract, the respondent had effected an increase in pay in the amount of 5 cents an hour, which was incorporated in the terms of the contract. The E. C. U. members voted to "let it go at that." In view of the facts set forth above, there can be no doubt that the respondent, in June 1937 and thereafter, through its officers and agents, assisted in the formation of, sponsored, and dominated the E. C. U as a labor organization of its employees. Membership in the E. C. U. was obtained with the acquiescence and aid of respond- ent's supervisory employees. By these and other means the re- spondent effectively conveyed to its employees its desire that they belong to the E. C. U. to the exclusion of any other labor organization. The cardinal purpose of the E. C. U. was to oppose and crush the S. W. 0. C. movement in the plant, and to deprive the respondent's employees of the free exercise of their rights to self-organization. The respondent contends that it is not responsible for the acts of its foremen, assistant foremen, and gang leaders for the reason that said employees do not have the power to hire and discharge. In a recent case involving this point, the Board stated : The respondent contends that,, these employees cannot be con- sidered as supervisory employees, and that their activities were entirely independent of the respondent. In particular, the re- spondent points out that the sole power to hire and discharge rests with its personnel manager. There can be little doubt, however, that one executive cannot pass on the merits of more than 300 employees without the advice of persons in intermediate positions, who are in close contact with those under them. The employees named above have the responsibility for discipline in their respective departments. They assign the work that is to 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be done and report disturbances in, office efficiency: 'to the executives.2 and It may well be that none of the respondent's executives ever gave instructions to any of its employees to form or encourage an organization in opposition 'to the Bookkeepers' Stenographers', and Accountants' Union of Textile Workers Organizing Com- mittee. Nevertheless it is normal for an employee to assume that those who are in positions of authority represent to a large extent the wishes of the employer.3 The record is clear in the instant case that the foremen had the power to recommend the hire and discharge, of persons and did in fact ex ercise such power in the case of certain employees hereinafter dis- cussed. There is no dispute, moreover, that foremen supervised the work of the men in their respective departments. This is likewise true of the gang leaders who, while not as prominent in the hierarchy of management as the foremen, also directed the manner in which the work of the men under them was performed, and could and did make recommendations to the respondent's higher officials regarding the efficiency and other qualifications of the men whose work they directed. The respondent seeks to escape responsibility for the acts of its foremen, assistant foremen, and gang leaders on the further ground that in June and again in September 1937 it instructed its super- visory employees to maintain an attitude of strict neutrality toward union activities in the plant. The testimony of at least some of said supervisory employees indicates that they were not so advised until September 1937. The solicitation engaged in by these supervisory employees took place, for the most part, prior to that time. In any event, assuming that the respondent did in fact instruct its super- visors in June 1937 to refrain from interfering with the union activi- ties of its" employees, the record shows that the respondent took no effective means to obtain compliance therewith and that such instruc- a Matter of M. Lowenstein & Sons, Inc. and Bookkeepers', Stenographers', and Account- ants' Union, Local No. 16, United Office and Professional Workers of America, C. I. 0.; M. Lowenstein & Sons, Inc. and Textile Workers' Organizing Committee, Local No. 65, C. 1. 0.; M. Lowenstein & Sons, Inc. and United Wholesale Employees of New York, 6 N. L. R. B. 216. a See also Matter of T. TV. Hepler and International Ladies' Garment Workers' Union, 7 N. L. R. B. 255, wherein the Board used the following language : . . . The record indicates that the floor boys distributed work to the girls, that they are in charge of production, that they are placed in control of the plant when- ever Hepler is not personally present, and that they are considered by the girls as supervisors. As we have held in analogous situations [citing Matter of American Manufacturing Company, et at., 5 N. L. R. B. 443], the extent of the supervisory authority in fact exercised by the floor boys, coupled with the fact that they were recognized by the employers as supervisors, clearly supports the conclusion that such employees must be classed as supervisors. FLORENCE PIPE FOUNDRY & MACHINE CO. 79 tions went unheeded.. Accordingly, with respect to the acts.of the respondent's foremen, assistant foremen, and gang leaders, the doc- trine of respondent superior applies, and the respondent is responsi- ble for said acts even though it had no actual participation therein.4 In its brief the respondent maintains that its attitude toward the union activities of its employees was impartial and argues that, in- dicative of such impartiality, the S. W. 0. C. as well as the E. C. U. solicited members during working hours, and that the record contains no evidence showing that the S. W. 0. C. ever requested any privi- lege and that such request had been denied. As to the respondent's first argument, it is sufficient to note that relatively little union activ- ity was carried on by the S. W. 0. C. during working hours as contrasted with the activities of the E. C. U. which were almost entirely conducted on company time and property, and were partici- pated in by supervisory employees.5 The respondent's second argu- ment is equally without merit. In view of the respondent's hostility to the S. W. O. C., we do not believe that that organization would have been granted'privileges similar to those enjoyed by the E. C. U., even if it had requested them. We find that the respondent has dominated and interfered with the. formation and administration of the E. C. U. and has contributed support thereto, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The lay-offs The complaint alleges that the respondent laid'off Joseph Thomas, Ellsworth Petty, Elmer R. Jones, Donald Waterson, Theodore Estes, Dominick Santoleri, and, with the exception of Joseph Thomas, there- after refused to reinstate said employees, because of their member- ship in and activities in connection with the S. W. 0. C. The re- spondent, in its answer, alleges, in substance, that the above-named employees were laid off for the reason that the respondent did not have sufficient work to warrant the continuation of their employ- ment, and that said employees were selected to be laid off only after due consideration of their respective standings in the plant relative to seniority, character, skill, efficiency, work record, financial needs, and. dependents. In connection with the allegation that a falling off of production necessitated the lay-offs, Superintendent Peake testified that a dimi- 4 See Swift S Company v. National Labor Relations Board , 106 F. ( 2d) 87 (C. C. A. 10), enf'g Matter of Swift S Company, a corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 641, and United Packing House Workers Local Industrial Union No. 300, 7 N. L. R. B. 269. 5 See Matter of Hood Rubber Company, Inc . and Hood Rubber Workers Association, Inc., and Matter of Hood Rubber Company, Inc. and United Rubber Workers of America, affili- ated with the C. I. 0., Local No. 122, 14 N. L. R. B. 16. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nution, amounting to over 30 per cent of the volume of the respond- ent's business, occurred during the latter part of 1937 and the early part of 1938. No statistics were supplied by the respondent, however, to show in what month the alleged diminution began, or in what manner it affected the departments in which the lay-offs took place. Lists were furnished by the respondent and introduced in evidence to show the number of employee separations which took place in the respondent's plant during the year 1937 and the first 7 months of 1938. Since these lists contain no indication as to whether the employee separations noted therein were in the nature of lay-offs, discharges, or voluntary acts of the employees concerned, it is diffi- cult to measure their probative value. However, interpreting in, its widest sense the time element referred to in Peake's testimony that the decrease in the respondent's business took place during the latter part of 1937 and the first part of 1938, an examination of said lists reveals that employee separations occuring during periods includ- ing the last 6 months of 1937 and the first 6 months of 1938 numbered 78 and 65, respectively. The lists further show that during the first 6 months of 1937, a period which in the absence of evidence to the contrary we may assume to have been relatively normal from the standpoint of business conditions and employment figures in the respondent's plant, a total of 42 persons were severed from the respondent's employment and were not thereafter reinstated. Com- paring the employee severances of each of the three periods described above, it appears that an unusual reduction in force did in fact take place during the period in which the respondent alleges that it was affected by adverse business conditions. But even if we accept the respondent's contention that it was compelled by reason of adverse business conditions to reduce its force, it does not necessarily follow that all of the lay-offs which took place were occasioned solely or even primarily by such a cause." And where an employer has dis- charged or laid off an employee for two or more reasons, and one of them is union affiliation or activity, the Board has found a viola- tion of the Act.7 It follows that the determination of whether or not the employee severances were occasioned in whole or in part by the union membership and activities of the laid-off employees must depend on the circumstances surrounding each individual case. 6 See Matter of Servel, Inc. and United Electrical, Radio and Machine Workers of America, Local No. 1002, 11 N. L. R. B. 1295, 1319, et seq.; Matter of Commonwealth Tele• phone Company and Theodore R. Siplon, Walter F. Seidler and International Brotherhood of Electrical Workers, 13 N. L. R. B. 317. 7 See Matter of Louisville Refining Company and International Association, Oil Field, Gas Well, and Refinery Workers of America, 4 N. L. R. B. 844, enf'd N. L. R. B. v. The Louisville Relining Company, 102 F. (2d) 678 (C. C. A. 6), wherein the employer con- tended that many factors, such as capability and willingness, determined the selection of those to be laid off. The Board said : "It must be concluded that the activity in and membership of these employees in the Local was a definite factor in determining that they should be dismissed from the respondent's employ." FLORENCE PIPE FOUNDRY & MACHINE CO. 81 As to the respondent's allegation that seniority was an important consideration in determining which of its employees should be laid off, the record shows that length of service was not a primary con- sideration; that it was not uniformly applied, sometimes being cal-' culated on a plant-wide basis and at other times on a departmental basis, apparently to accomplish whatever purpose the respondent desired to effectuate. Joseph Thomas was employed by the respondent for approximately 8 years. At the time of his lay-off on September 20, 1937, he occu- pied the position of slag man in the ramming station. The duties of this position consisted of removing slag from the cupola and were classified by the respondent as ordinary labor. Thomas was reem- ployed by the respondent about the first week of October 1937. At the. time of his lay-off Thomas was informed by Personnel Director Kite that the respondent had found it necessary to suspend his employment, along with approximately 50 other employees on the same day, and that in determining which persons should be laid off the respondent had taken into consideration the seniority of the men. Thomas was instructed to obtain his pay on the same day. The respondent's usual practice in the case of a lay-off was to pay the employee on the following pay day. At the hearing the respondent contended-that one of the reasons for Thomas' lay-off was his inefficiency. Thomas was not informed of this factor at the time of his lay-off. The record clearly negates the respondent's contention, both as a reason for the lay-off and as a fact independent of the reason. Although Thomas' inefficiency was alleged to have persisted over a long period of time, he was not disciplined on account of it. Moreover, 'on or about September 22, 1937, Thomas, accompanied by S. W. O. C. Organizer Kelly, con- ferred with Superintendent Peake concerning the lay-off. On this occasion Kelly called Peake's attention to the fact that Thomas' seniority was greater than that. of several other employees who' were retained at the plant. In reply Peake stated that Thomas was chosen to be laid off by reason of a policy of the respondent to prefer em- ployees who lived within the city limits. Thomas lived outside the city of Florence. Not only is this explanation inconsistent with the other two reasons, namely, inefficiency and inferior seniority status, which were advanced by the respondent, but it appears that other employees who lived outside the city of Florence were retained by the respondent. - Steffanoni, an ordinary laborer, was transferred from another department in the plant to replace Thomas after the latter's lay-off. Steffanoni's previous position was immediately filled by DeLullo, who, although not employed by the respondent at the time of Thomas' 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lay-off, was called . to work shortly thereafter. • Kite admitted that other ordinary laborers with less plant-wide seniority than Thomas continued, in the respondent's employ after the latter's lay-off, in. spite of the fact that the usual practice of the respondent was to make its lay-offs on the basis of plant-wide seniority. Thomas had joined the S. W. O. C. in August 1937, regularly attended its meetings, and solicited members for that labor organi. zation. He was, to the knowledge of the respondent's foremen and gang leaders, active on the S. W. O. C.'s behalf. At the hearing Foreman John Durham admitted that during the period from Sep- tember 1 to 20, 1937, he solicited Thomas to join the E. C. U. on several occasions during working hours, and that he had had sev. eral discussions with Thomas concerning the C. I. O. and the E. C. U. Thomas consistently refused to join the E. C. U. On one occasion, Durham asked him to read an E. C. U. notice which was posted on a company bulletin board. Thomas informed him that he could not read, whereupon Durham profanely remarked "If it was some- thing belonging to the C. I. O. probably you could read it." Shortly thereafter his foreman, Rhoda, warned him, "If you keep your mind on the C. I. O. you won't be here much longer." In view of the circumstances described above, we conclude that Thomas was laid off because he joined and assisted the S. W. O. C. We therefore find that the respondent, by laying off Thomas, has discriminated in regard to hire and tenure of employment, thereby discouraging membership in a labor organization, and interfering with, restraining, and coercing its employees in the exercise of rights guaranteed. in Section 7 of the Act. Ellsworth Petty was employed intermittently in various capacities by the respondent during the period from 1914 to September 20, 1937, the date of his last lay-off. His last period of employment commenced on February 11, 1936, at which time he was requested to return to work by Personnel Director Kite. Petty was not re- employed by the respondent subsequent to the last lay-off. Petty joined the S. W. O. C. in August 1937. In the same month his activities in connection with that labor organization brought a reprimand from his foreman, Jerry Virille, who told him not to talk too much about the C. I. O. "because they aren't going to win." On the afternoon of the day that Virille made the aforesaid remark, Foreman John Durham, in the presence of Virille, solicited Petty to join the E. C. U. Petty declined, stating that he already belonged to the C. I. O. and did not desire to join any inside union unless he was compelled to. On September 15, 1937, at the meeting of the S. W. O. C. attended, as heretofore found, by Watchman Dougherty, Petty was elected to FLORENCE PIPE FOUNDRY & MACHINE CO. 83 the office of inner "guard. - Subsequently, on September 20; 1937, Petty was laid off by Sweeney, Sr. At the hearing, for the first time, in explanation of its action, the respondent claimed that Petty's inefficiency, among other reasons, was responsible for his lay-off. Sweeney, Sr., testified that Petty was "tops" in inefficiency; that 'his work had been inferior during the entire period of his em- ployment, but that he was retained in spite of the' circumstances for the reason that his job was not sufficiently important to neces- sitate his discharge. This explanation is seriously weakened by reason of its inconsistency with Sweeney's subsequent testimony on cross-examination, wherein he stated that the long-established prac' tice of the company in dealing with inefficiency among its employees was as follows : "if a man doesn't fill the job for any reason at all 'we will find that out, oh, in 3 or 4 weeks, or a month at the very outside." In the event that an employee was found to be inade= quate, Sweeney explained that a recommendation was made to' the personnel director to dismiss the unsatisfactory employee. Petty -testified that his work had never been criticized by his superiors. -Virille, Petty's foreman, who was in the best position to know the quality of Petty's work, did not testify. We find that inefficiency was not a factor considered by the respondent in determining that Petty should be laid off. - On the clay after his discharge Petty, accompanied by S. W. O. C. Organizer Kelly, conferred with Superintendent Peake concerning his lay-off. On this occasion, as in the case of Thomas whose lay-off was considered above, Peake stated that Petty was singled out by reason of the fact that he did not live in the city of Florence and that it was the respondent's policy to prefer employees who did. It is worthy of note that this policy, if it existed at all, had never been generally made known by the respondent,to its employees. In any event, we have already found that many employees who were retained in the respondent's employ did not live within the city limits. In view of the circumstances described above, we conclude that Petty was laid off because the formed and assisted the S. W. O. C. We therefore find that the respondent, by laying off Petty, has discriminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization, and inter- fering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. Elmer Jones was employed by the respondent on or about Febru- ary 22, 1934, as a maintenance electrician. Later he became a sub- station operator, which position he occupied until September 24, 1937, the date on which he was laid off. Jones was not reemployed by the respondent subsequent to his lay-off. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this case, as in the lay-offs considered above, the respondent maintained that slackness of work necessitated a reduction in its force and that Jones was selected to be laid off for the reason that his seniority was less than that of other employees in his depart- ment. The respondent further contended at the hearing that Jones' work was relatively inferior to that of other workmen in his depart- ment, and that this factor , as well as the alleged inferiority of his seniority status, was "possibly" taken into consideration in de- termining that he was to be laid off. The record contradicts the respondent's contention that Jones' work was inferior. During the course of his employment Jones was called upon to perform special jobs in connection with the electrical rigging and erection work. He was promoted by the re- spondent from the capacity of maintenance electrician to the higher- paid position of a substation operator. Jones' wife testified that Pfeffer, Jones' foreman, had paid a social visit to their home prior to Jones' discharge and on that occasion had informed her that Jones was "a good man," intelligent, and able to perform any work which he was requested to do. These statements were not denied by Pfeffer, and we accept the testimony of Jones' wife. On another occasion , Frost, head of the respondent's production department, requested that Jones be transferred to his department. This re- quest was refused by Superintendent Peake on the ground that Jones was going to be "one of the best men in the electrical depart- ment." Peake testified that he made the final decision in Jones' lay-off and that said lay-off was occasioned by slackness of work. He admitted that Jones was "a good workman in his class." The record further shows that the respondent had awarded Jones a prize of $5 for a suggestion he made in connection with its safety campaign. This campaign was regarded by the respondent as being of considerable importance both to itself and its employees. We find that Jones was not inefficient. As to' Jones' seniority status, Pfeffer testified that he informed Jones at the time the latter was hired in 1934 that he was being tem- porarily employed to take the place of Pfeffer's nephew , Silar, then on sick leave, and that he, Jones, could have Silar 's job until the latter returned or for a longer period if work justified it. Jones denied being so advised, and testified that he was hired as a regular employee . Jones had held a permanent position elsewhere prior to his employment by the respondent and had resigned from that po- sition in order to enter the respondent 's employ upon Pfeffer's as- surance that his employment with the respondent would be permanent. Moreover, Gross, a former employee of the respondent, testified that in December 1933 he entered the respondent 's employ at Pfeffer's solicitation and that the latter had stated that he, Gross, could have FLORENCE PIPE FOUNDRY & MACHINE CO. 85 Silar's job until he returned . We do not believe that Pfeffer told both Gross and Jones that each was filling Silar's place. Silar returned to work on August 11 , 1934. Neither Gross nor Jones was laid off when he returned . Silar assumed his usual duties of maintenance electrician and Gross continued in a similar capacity. Jones, then working as a substation operator , was not laid off until September 24, 1937. Gross continued to work until April 20, 1938. We find that Jones was hired in a permanent capacity on or about February 22, 1934. Jones joined the S. W. O. C. on September 10, 1937, and became active on its behalf, speaking from the floor at its meetings and soliciting members. On September 15, 1937, he was elected to the office of S. W. O. C. treasurer. Joseph Lennox, an employee of the respondent , testified that on the day Jones was laid off Miller, the respondent 's master mechanic, said he was aware of the fact that Jones had been laid off and that Jones was an officer of the C. I. O. Lennox further testified that Miller stated that there would be "plenty of others who were mem- bers of the C. I. O. laid off also." At the hearing, Miller admitted that he conversed with Lennox on the occasion referred to, but de- nied that he made the statements attributed to him. However, the Trial Examiner, who had opportunity to observe the witnesses, found that Lennox's version was the more credible. In view of all the circumstances , we accept the Trial Examiner's finding. Although the respondent offered proof that a total of 38 employees were laid off during the month of September 1937, due to a decrease in business, Jones was the only one laid off in his department during that period . Jones testified that the work in his department had not decreased prior to his lay-off ; Gross testified and it was admitted by Pfeffer that subsequent to Jones' lay -off the men in Jones' depart- ment worked overtime. We find that the respondent's contention that slackness of work necessitated Jones' lay-off is unsupported by the evidence. In view of the circumstances described above, we conclude that Jones was laid off because he joined and assisted the S. W. O. C. We therefore find that the respondent, by laying off Jones, discrimi- nated in regard to hire and tenure of employment, thereby dis- couraging membership in a labor organization, and interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. Donald laterson was employed by the respondent on April 11, 1934. During approximately the first 6 months of his employment, Waterson "burned" scrap iron; in the fall of 1934 he was transferred, with a raise in pay, to the shipping department, where he packed and 2S3030-41-vol. 19-7 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crated and did general carpentry work until April 20, 1938, the date of his lay-off. Waterson was not reemployed by the respondent sub- sequent to his lay-off. Joining the S. W. O. C. on September 15, 1937, Waterson became active on its behalf, particularly during the month of March 1938, immediately prior to his lay-off, when he conducted a house-to-house canvass for members. In the same month he was appointed tem- porary shop steward for the order department in the respondent's plant. Waterson testified that on or about April 11, 1938, prior to his lay-off, John Woolston, assistant foreman of the order department, advised him as follows : "You had better watch your step. Burleigh [another foreman] has been raising hell about your talking C. I. O. to his men on company time." He further testified that on that occasion Woolston warned him that Burleigh would compel him to give up his office in the S. W. O. C. "if he has to fire you to do it." Woolston testified that Burleigh requested him to "keep Waterson out of my shop and from interfering with men during working hours," and that accordingly he told Waterson, "You have got to stop going in this shop and talking about unions through working hours." The Trial Examiner found that Waterson's version of the conversation was the true one. In view of all the circumstances, we accept the Trial Examiner's finding in this respect. On April 20, 1938, Kite, personnel director, informed Waterson that he was being laid off because work was slack, and also for the reason that the work which Waterson had been performing would, under a new arrangement, thereafter be performed in the respondent's carpentry division. The record shows that Sayres, an employee in the carpentry department, assumed the duties which had previously been performed by Waterson. Personnel Director Kite testified that Sayres had greater plant-wide seniority than Waterson. Waterson contradicted Kite's testimony and maintained that Sayres had not been, for the past 4 years, continuously employed by the respondent. The record contains no evidence relative to Sayres' continuity of employment or bearing on the point of whether or not, under the re- spondent's usual practice, seniority rights are forfeited in the event that employment is not continuous. In any event, we have observed that seniority calculated on a plant-wide basis was not a determining factor in the respondent's selection of persons to be laid off. The record further shows that Waterson was assisted in his crating and packing work by unskilled laborers. Inquiry as to the seniority status of these employees was met by evasive and unresponsive answers of the respondent's witnesses, and the respondent failed to produce their seniority records. We have observed above that Waterson was capable of "burning" scrap iron, work which he had performed during the first few FLORENCE PIPE FOUNDRY & MACHINE CO. 87 months of his employment. Other employees who were engaged in this type of work at the time of Waterson's lay-off continued to work thereafter. The respondent failed to comply with the request of counsel for the Board that their seniority records be produced at the hearing. Kite admitted that at the time of Waterson's lay-off and subsequent thereto employees with less seniority were retained in other departments in the plant. Under the circumstances, we find that the respondent could have assigned Waterson to the type of work which he performed during the first few months of his employ- ment or to some other type of work suitable to his capacities if it had so desired. In view of the circumstances described in the paragraphs above, we conclude that the respondent laid off Waterson because he joined and assisted the S. W. O. C. We therefore find that the respondent, by laying off Waterson, discriminated in regard to hire and tenure of employment, thereby discouraging membership in a labor organi- zation, and interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. Theodore Estes was employed by the respondent as a member of the track gang for approximately 8 years. He joined the S. W. O. C. on or about August 15, 1937, and became active on its behalf. On September 15, 1937, he was elected to the office of financial secretary of the S. W. O. C. In November 1937 he was solicited by Assistant Foreman Durham to join the E. C. U. Estes declined to do so. In the early part of 1938 Estes intensified his union activities, conduct- ing a house-to-house canvass to solicit members for the S. W. O. C. On April 20, 1938, Personnel Director Kite informed Estes that the respondent was compelled to reduce its force and that, since Estes had less seniority than other employees in his department, he had been chosen to be laid off. Estes testified that at least two other employees in his department, as well as others working elsewhere in the plant, had less seniority than he. The record contains no cred- ible evidence on the respondent's behalf that Estes' statement regard- ing his seniority was not correct. Moreover, regardless of Estes' seniority status, we have already noted that the respondent's conten- tions with respect to departmental and plant seniority are unreliable. No other reason for the lay-off of Estes was advanced by the respondent. Estes was not reemployed by the respondent subsequent to his lay-off. In view of the circumstances described in the paragraphs above, we conclude that the respondent laid off Estes because he joined and assisted the S. W. O. C. We therefore find that the respondent, by laying off Estes, discriminated in regard to hire and tenure of employment, thereby discouraging membership in a labor organiza- 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, and interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. Dominick Santoleri has been employed by the respondent as a core maker for approximately 10 years. On April 26, 1938, he was laid off by Foreman John Durham. He was reemployed by the respond- ent about August 1, 1938. Superintendent Peake testified that San- toleri was laid off "because one of the machines went out of commis- sion and necessitated less core makers to keep the shop running." Personnel Director Kite testified : "There were five men in the depart- ment in which he worked and he had least seniority of any of them." The record shows that, at the time of his lay-off, Santoleri was not advised by Durham as to the reasons for his lay-off set forth above. Bomaster, a member of the E. C. U., was retained in Santoleri's department and continued to perform the work of core-making after Santoleri's lay-off. The record shows that Bomaster had greater plant-wide but less departmental seniority than did Santoleri. The circumstance of Bomaster's plant-wide seniority loses its significance, however, when considered in the light of the respondent's practice of applying the principle of departmental seniority in other cases in order to achieve ends which it could not otherwise accomplish. In addition, it appears that seniority, judged on any basis, was not the primary factor considered by the respondent in determining who should be laid off. Kite testified that efficiency and ability were the primary considerations. We therefore find that the aforesaid various reasons assigned to Santoleri's lay-off by Peake and Kite are not supported by the evidence. The record shows that the respondent's true reason for laying off Santoleri is to be found in its resentment of his membership in and activities in connection with the S. W. O. C. Santoleri testified that after he joined the S. W. O. C. in the summer of 1937, he was solicited .during working hours by John Durham, his foreman, to join the E. C. U. Santoleri declined, stating that he belonged to the C. I. 0., whereupon Durham stated that he did not think that the C. I. O. was good. Subsequently, Durham's efforts to prevail upon Santoleri to join the E. C. U. were repeated, particularly in November or Decem- ber 1937. Santoleri remained steadfast in his refusal to join that organization until, in December 1937, he was informed by Durham that if he did not join he would lose his job. Influenced by this threat, Santoleri finally reconsidered and signed a membership card. He participated in no activities in connection therewith, however, and after a short time, ceased to pay membership dues. Durham, in his testimony, admitted that he solicited Santoleri to join the F. C. U., and thereafter received payment of membership dues from him, but denied that he employed disparagement or threats of dis- charge to compel Santoleri to join. However, in view of the findings FLORENCE PIPE FOUNDRY & MACHINE CO. 89' which we have already made concerning Durham's zealous activities on behalf of the E. C. U. and his declared hostility toward the S. W. O. C. we find Durham employed threats and disparaged the S. W. O. C. in order to compel Santoleri to join the E. C. U. In February 1938 the department in which Santoleri worked was not running full time. 'Santoleri testified that he observed that E. C. U. members worked more often during this period and complained to Durham about it, and that Durham informed him that he did not receive more work because he had not paid his E. C. U. dues. At the hearing, Durham admitted that he told Santoleri that lie would not assist him unless he paid his dues. Nevertheless, Santoleri per- sisted thereafter in his refusal to pay such dues up to the time of his lay-off. In view of the circumstances described in the paragraphs above, we conclude that Santoleri was laid off because he joined and assisted the S. W. O. C. We therefore find that the respondent, by laying off Santoleri, has discriminated in regard to hire and tenure of employment, thereby discouraging membership in a labor organi- zation, and interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. E. The discharge of Charles Mwndor f f Charles Mundorff was employed by the respondent as a construc -tion line worker about June 8, 1936, and continued in the respond- ent's employ until about March 9, 1938, when he was discharged. The respondent contends that Mundorff was discharged for the reason that he was negligent in the performance of his work. On an evening shortly prior to his discharge, Mundorff, together with another employee, was assigned the task of constructing a bumper on each side of a large crane in the plant. Mundorff's duties on this occasion included the "burning" of necessary holes in the structure with an' acetylene torch. In the performance of these duties, in- candescent steel particles fell from the crane where the burning operation was taking place and ignited a collection of paper and waste materials in the bottom of a concrete pit over which the crane was located. The men immediately descended into the pit to ex- tinguish the fire. Mundorff sprayed the flames with a chemical fire extinguisher and in so doing he allowed the mixture of acid and soda to splash upon a motor generator, which the respondent alleges was. damaged thereby. After the completion of his work on the following evening, Mundorff failed to remove from the top of the crane two loose steel slugs which he had burned from the structure. The re- spondent contends that the slugs were left in a position from which they conceivably could have been dislodged by vibration, making 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them intrinsically dangerous to persons working below. On the third evening Mundorff and his fellow employee resumed work on the construction of the bumpers. On this occasion heated metal again dropped from Mundorff's torch, igniting several rope slings lying on the floor below the crane. The facts set forth above are not disputed. However, whether or not Mundorff was culpably negligent by reason thereof is a question concerning which the testimony is in sharp conflict. Fister, assistant foreman under Miller, the respondent's master mechanic and Mundorff's superior, testified that he instructed Mun- dorff (1) to locate the crane over the concrete pit and ( 2) to use a shield under the torch. Mundorff admitted that Fister instructed him as to the position of the crane but denied that he was advised to use a shield. The record shows that the crane was in fact located over the concrete pit, according to Fister's instructions, at the time when both conflagrations occurred. Mundorff testified that on the evening when the first fire took place it had been necessary for him to move the crane from its original position to a point over the middle of the pit because there was insufficient light at the place where the crane was first located. When the fire occurred, Mundorff was atop the crane approximately 75 feet vertically above the paper and waste material and approximately 25 to 30 feet horizontally removed from them. Mundorff testified that from that position he did not believe the papers and waste could be ignited. Miller, who subsequently dis- charged Mundorff, admitted that he did not witness the fire and that his conclusion that it was caused by Mundorff' s negligence was drawn solely from the circumstances. The following day Mundorff complained about the inadequate light. When he returned the next evening to resume operations on the second bumper, the light had not been fixed. Mundorff moved the crane once again over the pit, on this occasion locating it at one end of the pit. Mundorff observed several rope slings lying on the wooden floor below the crane and moved them 10 or 15 feet from the original position, before he commenced his work. The evidence strongly indicates that the slings had been negligently left on the floor below the crane by an unidentified person in whose custody they had previously been. In the exercise of due care, the slings ordinarily should have been returned to a storeroom reserved for the purpose. Mundorff testified that the slings were frayed, covered with oil, and in an inflammable and hazardous condition. He explained the circumstances surrounding the burning of the slings to Miller and Fister on the day following the occurrence. Mundorff testified, and it was not convincingly denied, that both of these men agreed on that occasion that he was not at fault, but that they did not know how the respondent's officials would react. FLORENCE PIPE • FOUNDRY & MACHINE CO. 91' Mundorff testified that other employees were not instructed to use a shield when performing burning operations, and that the setting of fires had frequently occurred without resulting in the discharge of the employees who caused them. This testimony was corroborated by Master Mechanic Miller and by Anthony Weiman, an employee who, during the last 3 or 4 years of his employment, had frequently used an acetylene torch in his work for the respondent. Weiman testified that neither Fister nor Miller had ever instructed him to use a shield, nor had he witnessed the use of a shield by other "burn- ers." He further testified that his "burning" operations had fre- quently ignited rope slings and that he had neither been reprimanded nor discharged as a result of the accidents. In view of the circum- stances described above, we find that Mundorff was not instructed by Fister to use a shield. As to the steel slugs, Mundorff testified that they were not left in a perilous position on the crane. Although Mundorff's testimony in this respect was contradicted in a general way by Fister, the record contains no specific evidence from which we can deduce that the slugs were left in a position from which they could have been dis- lodged. Accordingly, we are unable to conclude that Mundorff was culpably negligent in failing to remove the slugs. Mundorff was discharged by Miller on or about March 9, 1938, with the explanation that the fire had "broken his back." At that time, however, Mundorff was given a lay-off slip, which stated that he was laid off for the reason that work was slack. It omitted all mention that he was discharged for carelessness. Similar slips issued by the respondent to other employees who were laid off were produced at the hearing. The respondent, however, failed to produce Mun- dorff's slip and did not account for its absence. Mundorff testified, and it was not denied, that immediately subsequent to his discharge Personnel Director Kite had assured him that he would be reemployed when there was sufficient work to warrant it. The respondent's explanation of its reason for discharging Mun- dorff thus rests solely upon Mundorff's alleged disregard of safety as evidenced by the facts set forth above. As to Mundorff 's- efficiency, both Miller and. Kite testified that Mundorff's work, as such, was entirely satisfactory. On cross-examination Mundorff testified, and it was not denied, that subsequent to his lay-off Miller paid a social visit to his house and informed his wife that Mundorff's work was "perfect" but that the company would not retain in its employ a person who belonged to the C. I. O. and that, therefore, since Mun- dorff belonged to that organization, there was nothing for him, Miller, to do but let him go. We find that Miller made the statement attributed to him above. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of all the circumstances described above, we cannot accept the respondent's contention that Mundorff was discharged because he was careless in the performance of his work. Mundorff joined the S. W. O. C. in the fall of 1937 and thereafter became active in the affairs of that organization, attending and ad- dressing its meetings. At that time he was employed in the respond- ent's blacksmith department under Foreman Donnelly. In or about October 1937, Miller, who was Mundorff's friend of long standing, told Mundorff that Donnelly did not want him in his department because he was a C. I. O. member. Miller discussed the matter with Superintendent Peake and informed the latter that Mundorff was not a member of the C. I. O. Mundorff testified relative to informa- tion received from Miller that Peake stated to Miller, "You go ahead and take him but I'm holding you directly responsible for his actions hereafter." Miller denied having thus quoted Peake to Mundorff. However, following the alleged conversation, the record shows that Mundorff was transferred to Miller's department. During the time he worked under Miller, the latter discussed the C. I. O. with Mun- dorff, stating that he was glad that Mundorff had not joined and that he did not' want Mundorff to "let him down" because he, Mundorff, would be discharged if he did. Miller further remarked on one. occasion that certain C. I. O. members were shortly to be discharged. Miller denied having discussed union matters with Mundorff. How-. ever, the Trial Examiner, who had opportunity to observe the wit- nesses as they testified, accepted as true the evidence related by Mun- dorff. In view of the facts which we have heretofore observed con- cerning Miller's obvious hostility toward the S. W. O. C. and his sympathy for the E. C. U., we find that Miller made the statements attributed to him. Mundorff testified that on a later occasion in the fall of 1937 he wore a C. I. O. button to work. Miller, upon observing the button, tore it from Mundorff's cap and cast it aside, profanely denouncing Mundorff for having worn it. He informed Mundorff that it meant the end of his job and that if "they don't get you one way, they'll get you another." Miller denied having made this statement. Ac- cording to his version of the aforesaid occurrence, Mundorff pinned a C. I. O. button on his [Miller's] shirt, whereupon Miller "took it and threw it out in the coal.pile." Miller testified : "We were just kidding and fooling." For reasons set forth.in the paragraph above, we find that Mundorff's version of the occurrence is the true one. Martin Healy, a workman presently employed in the same depart- ment in which Mundorff had worked, testified and it was not denied that in July 1938 Miller inquired of him as to the nature of the affidavit made by Mundorff in connection with the present proceeding FLORENCE PIPE FOUNDRY & MACHINE CO. 93 and that Miller also stated on this occasion that when a foreman desires to get rid of an employee he can always find a pretext in some violation of a company rule. In the light of all the circumstances, we conclude that the formula expressed by Miller to Healy was applied in the case of Mundorff's discharge, and that the respondent's true motive in discharging Mun- dorff was to rid itself of an active S. W. 0. C. member. We therefore find that the respondent, by discharging and thereafter refusing to reinstate Mundorff, has discriminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organiza- tion, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. F. The refusal to bargain with the S. W. 0. C. The complaint, as amended, alleges that on April 21, 1938, and thereafter, the respondent refused to bargain with the S. W. 0. C. as the exclusive representative of its production and maintenance em- ployees. However, subsequent to the hearing in this case, the S. W. 0. C. filed a petition with the Board, requesting an investigation and certification of representatives for the respondent's production and maintenance employees. Pursuant thereto a hearing was held, and on September 14, 1939, the Board issued its Decision and Direc- tion of Election S in that case. In view of these facts we will dismiss the allegations contained in the complaint relating to the respondent's refusal to bargain with the S. W. 0. C. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III B, C, D, and E 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 We have found that the respondent engaged in unfair labor prac- tices by interfering with, restraining, and coercing. its employees in various ways in the exercise of rights guaranteed in Section 7 of the Act, by dominating and interfering with the formation and admin- istration of the E. C. U., and by discriminating in regard to hire and tenure of employment, thereby discouraging membership in a s Matter of Florence Pipe Foundry & Machine Co. and Steel Workers Organizing Com- mittee, on behalf of Lodge 2040, Amalgamated Association of Iron, Steel and Tin Workers of North America, 15 N. L. R. B. 250. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization. Accordingly, we shall order the respondent to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act and restore, as nearly as possible, the situation that existed prior to the commission of the unfair labor practices. We have found that the respondent fostered the organization of the E. C. U. and encouraged its employees to become members of said organization in an attempt to circumvent the provisions of the Act and to deny to its employees the rights as guaranteed by Section 7 of the Act. We shall therefore order' the respondent to withdraw all recognition from the E. C. U. as a labor organization representing its employees for the purposes of dealing with the respondent, and to cease giving effect to the agreement with the E. C. U. as bargain- ing agent of its employees. We have found that the respondent laid off Joseph Thomas, Ells- worth Petty, Elmer Jones, Donald Waterson, Theodore Estes, and Dominick Santoleri and thereafter, with the exception of Joseph Thomas and Dominick Santoleri, refused to reinstate said employees for the reason that they joined and assisted a labor organization and engaged in concerted activities for the purpose of collective bargain- ing and other mutual aid and protection. We shall therefore order, the.respondent to offer Ellsworth Petty, Elmer Jones, Donald Water- son, and Theodore Estes, immediate reinstatement to their former or substantially equivalent positions. Since Joseph Thomas and Domi- nick Santoleri were reemployed by the respondent subsequent to their lay-offs and were in the respondent's employ at the time of the hear- ing, it will be unnecessary for us to order their reinstatement. We shall further order the respondent to make whole all said employees, including Joseph Thomas and Dominick Santoleri, for any loss of pay they have suffered by reason of their respective lay-offs by pay- ment to each of them of a sum equal to that amount which each would normally have earned as wages from the date of his lay-off to the date of his reinstatement or offer of reinstatement, less his net earnings 9 during said period. We have found that the respondent discharged Charles Mundorff because he joined and assisted a labor organization and engaged in Y By "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else. where than for the respondent , which would not have been incurred but for his unlawful lay-off and the consequent necessity of his seeking employment elsewhere . See Matter of - Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2.590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal , or other work-relief projects are .not considered as earnings , but as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal, or other government or governments . which supplied the funds for said work-relief projects. FLORENCE PIPE FOUNDRY & MACHINE CO. 95 concerted activities for the purpose of collective bargaining and other mutual aid and protection. We shall therefore order the respondent to offer to said Mundorff immediate reinstatement to his former or a substantially equivalent position. We shall further order the re- spondent to make said Mundorff whole for any loss of pay he has suffered by reason of his discharge by payment to him of a sum equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement less his net earnings 10 during the said period. Upon the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Steel Workers Organizing Committee, affiliated with the Con- gress of Industrial Organizations, and Employees' Committee Union are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Employees' Committee Union and by contributing support thereto the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire, tenure, and terms and conditions of employment of Joseph Thomas, Ellsworth Petty, Elmer Jones, Donald Waterson, Theodore Estes, Dominick Santoleri, and Charles Mundorff, and thereby discouraging membership in Steel Workers Organizing Committee, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not refused to bargain collectively with the S. W. O. C. within the meaning of Section 8 (5) of the Act. ORDER Upon the 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 10 See footnote 9. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent, Florence Pipe Foundry & Machine Co., its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Steel Workers Organizing Com- mittee, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees, by discrimination in regard to hire or tenure of employment or any terms or conditions of employment; (b) Dominating or interfering with the administration of Em- ployees' Committee Union or with the formation or administration of any other labor organization of its employees and from contribut- ing support to Employees' Committee Union or any other labor organization of its employees; (c) Recognizing the Employees' Committee Union as the represen- tative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work ; (d) Giving effect to any agreement which it may have with said Employees' Committee Union; - (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively .through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining and other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Employees' Committee Union as the representative of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work, and completely disestablish said Employees' Committee Union as such representative; - (b) Offer Ellsworth Petty, Elmer Jones, Donald Waterson, Theo- dore Estes, and Charles Mundorff immediate and full reinstatement to their former or substantially equivalent positions, without preju- dice to their seniority and other rights and privileges; (c) Make whole Joseph Thomas, Ellsworth Petty, Elmer Jones, Donald Waterson, Theodore Estes, Dominick Santoleri, and Charles Mundorff for any loss of pay they have suffered by reason of the .respondent's discrimination, by payment to each of them a sum of money equal to that which he would normally have earned as wages from the date of his lay-off or discharge to the date of reinstate- ment or of the offer of reinstatement, less his net earnings during FLORENCE PIPE FOUNDRY & DIACHINE CO. 97 said period, provided that the respondent shall deduct from the back pay due each employee a sum equal to that received by such employee for work done in Federal, State, county, municipal, or other work- relief project during the period for which back pay is due him under this Order, and pay any such amount deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other gov- ernment financing such work-relief project; (d) Immediately post in conspicuous places throughout its plant at Florence, New Jersey, and maintain for a period of sixty (60) consecutive days notices stating : (1) that the respondent will cease and desist in the manner set forth in paragraphs 1 (a), (b), (c), (d), and (e), and that it will take the affirmative action described in paragraphs 2 (a), (b), and (c) of this Order; and (2) that the respondent's employees are free to become or remain members of the S. W. O. C. and that the respondent will not discriminate against any employee because of membership or activity in that organization; (e) Notify the Regional Director for the Fourth Region, in writ-. ing, within ten (10) days from the date of this Order what steps; the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, as amended, in so far as it alleges that the respondent refused to bargain with Steel Work- ers Organizing Committee be, and the same hereby is, dismissed.