Marlin-Rockwell Corp.

In the Matter of MARLIN-R OCKWELL CORPORATION and INTERNATIONAL UNION, UNITED AIITOMOBILE WORKERS OF AMERICA, LOCAL #338 Case No. C-967.-Decided January 19, 1940 Ball Bearing Manufacturing Industry-Interference, Restraint, and Coercion: threats that plant would be closed if union should win impending election ; inquiries into union activities of employees-Collective Bargaining : refusal to bargain following certification of the union by the Board ; contentions that refusal was justified on grounds that the majority contemplated by the Act is a majority of those eligible to vote, and that employees laid off after the eligibility date and before the election date participated in the election , held to be without merit ; respondent ordered , upon request, to bargain with union-Discrimination: lay-offs for union membership and activitly during a general plant reduction ; charges of, sustained as to two employees , dismissed as to seven-Reinstatement Ordered: as to employees laid off for union membership and activities-Back Pay: awarded employees discriminatorily laid off-Complaint: dismissed as to seven employees found not to have been discriminated against. Mr. Peter. A. Crotty, for. the Board. Slee, O'Brian, Hellings & Ulsh,, by Mr. Dana B. Hellings and Mr. John Van Siclcel; of Buffalo, N. Y., for.,the respondent. Mr. Daniel B. Shortal, of Buffalo, N. Y., for the U. A. W. Mr. Roscoe L. Barrow, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Union, United Automobile Workers of America, Local #338, herein called the U. A. W., the National Labor Relations Board, herein called the Board, by Henry J. Winters, Regional Director for the Third Region (Buffalo, New York), issued its complaint dated August 10, 1938, against Marlin-Rockwell Corporation, Jamestown, New York, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (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, accompanied by notice of hearing, were duly served on the respondent and the U. A. W. 19 N. L. R. B., No. 71. 648 MARLIN-ROCKWELL CORPORATION 649 With respect to the unfair labor practices, the complaint alleged in substance : (1) that on or about June 16, 1938, and at all times there- after, the respondent refused to bargain collectively with the U. A.W. as the representative of its employees in an appropriate unit, although the U. A. W. was the designated representative of a majority of such employees; (2) that the respondent laid off Bernard J. Polinski, Harry W. Rapp, Gunnard Nelson, Frances Stead, Elmer E. Melene,1 Francis B. Winans, Herbert S. Anderson, Junius Brown, Edward Lane, and Carl G. Carlson,2 and at all times thereafter refused to em- ploy them, because of their membership in and their activities in be- half of the U. A. W.; and (3) that by the foregoing acts, by warning its employees to refrain from entering into union activities, and by other acts, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. By its answer, dated August 19, 1938, the respondent denied that it was engaged in interstate commerce within the meaning of the Act and" that it had engaged in the alleged unfair labor practices. Pursuant to notice and amended notice duly served on the parties, a hearing was held on August 25, 26, 29, and 30, 1938, at Jamestown, New York, before William M. Hepburn, the Trial Examiner duly designated by the Board. The Board, the respondent, and the U. A. W. 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 counsel for the Board moved to dis- miss the complaint in so far as it alleged that the respondent dis- criminatorily laid off Edward Lane. The motion was granted. The Trial Examiner also made several rulings on motions and on objec- tions to the admission of evidence. The Board has reviewed the Trial Examiner's rulings and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. On October 10, 1938, the Trial Examiner filed his Intermediate Re- port, copies of which were duly served upon the respondent and the U. A. W., finding that the respondent had engaged in and was engag- ing in unfair labor practices, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from its unfair labor practices; bargain collectively with the U. A. W. as the exclusive representative of the employees in the appropriate unit; and reinstate with back ' In the charge and complaint the surname is spelled Meleen. In the transcript of the hearing the above spelling is used. ' In the complaint this employee was designated Carl G. Anderson . In the charge, the respondent's answer, and the transcript of the hearing, he is designated Carl G. Carisom. leaving no doubt that Carlson was the name intended. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay Harry W. Rapp, Charles Gunnard Nelson, Frances Stead, Elmer Melene, Francis B. Winans, and Herbert S. Anderson. He recom- mended, further, that the complaint be dismissed in so far as it alleged that the respondent discriminatorily laid off Bernard J. Polinski, Junius Brown, and Carl G. Carlson. On November 10, 1938, the respondent filed exceptions to the In- termediate Report. Pursuant to notice, a hearing was held before the Board at Washington, D. C., on October 17, 1939, for the purpose of oral argument. The respondent was represented by counsel and participated in the argument. The Board has considered the exceptions to the Intermediate Re- port and, in so far as they are inconsistent with the findings, conclu- sions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 3 Marlin-Rockwell Corporation is a Delaware corporation having its office and principal place of business in Jamestown , New York. It has plants located in Jamestown, New York, and Plainville , Connecti- cut. Only the Jamestown plant is involved in these proceedings. The respondent is engaged at that plant in the manufacture and sale of ball bearings . The principal raw materials used in its operations are steel tube, bar stock , forgings, strip steel , steel balls, and ball stock. From July 1, 1937, to June 30, 1938, raw materials costing $426,000 were imported to the respondent's Jamestown plant. Approximately 90 per cent of the raw materials were shipped to the respondent from points outside New York State. During the same period the respond- ent manufactured bearings valued at over $2,000,000. Approximately 75 per cent of the respondent's finished products are shipped to cus- tomers outside New York - State. The respondent employs 17 salesmen who solicit orders throughout the United States. It advertises in magazines having a Nation-wide circulation. The respondent owns and controls the M . R. C. Bearings Service Company, a sales and service organization maintaining offices in cities throughout the United States. II. THE ORGANIZATION INVOLVED United Automobile Workers of America is a labor organization affiliated with the Congress of Industrial Organizations. On June 10, 1938, the Board certified it as the representative for the purposes of 8 These findings as to the business of the respondent are based on a stipulation of facts. MARLIN-ROCKWELL CORPORATION 651 collective bargaining of all the employees in the respondent's James- town, New York, plant, excluding clerical, supervisory, executive and sales employees, engineers, draftsmen, and apprentices.' III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively The complaint alleges that on or about June 16, 1938, and at all times thereafter, the respondent refused to bargain with the U. A. W. as the exclusive representative of the employees in a unit appropriate for the purposes of collective bargaining, although the U. A. W. was the designated representative of a majority of such employees. The respondent's answer admits that the respondent refused to bargain collectively with the U. A. W., but denies that the U. A. W. has been designated in accordance with law by a majority of the employees in the appropriate unit as their agent for the purposes of collective bar- gaining. 1. The appropriate unit In a prior representation case,5 discussed more fully below, in- volving these same parties, the Board found that all employees of the respondent at its Jamestown, New York, plant, excluding supervisory, clerical, executive, and sales employees, engineers, draftsmen, and apprentices, constitute a unit appropriate for the purposes of col- lective bargaining and that said unit will insure to the employees of the respondent the-full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act. While it does not contest the propriety of the above unit in general, the respondent now objects to the exclusion of apprentices from the unit found to be appropriate.° The apprentices, who numbered five or six at the time of the hearing in the representation case, on October 18 and 19, 1937, are employed under a contract between the respondent, the State Department of Education, the Jamestown Board of Educa- tion, and the guardian of the particular apprentice. Under the con- tract the respondent agrees to employ the apprentice for a maximum *Matter of Marlin-Rockwell Corporation and Local No . 338, United Automobile Workers of America, 7 N. L. R. B. 836. S Matter of Marlin-Rockwell Corporation and Local No. 338, United Automobile Workers of America, 5 N. L. R. B. 206. ('During the oral argument on October 17, 1939, counsel for the respondent stated that set-up men and laboratory employees were excluded from the election conducted by the Board. In its Decision and Direction of Election issued on February 11, 1938, the Board included set-up men and laboratory employees in the appropriate unit. The record does not show that non-supervisory set-up men and laboratory employees were refused permission to vote in the election. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period of 4 years, or 8,000 hours of work, at a stipulated rate of pay, which is altered each 6 months, and also agrees to instruct the appren- tice in the mechanics of the particular trade. Because of the appren- tices' peculiar relations under this contract with the respondent and the State and municipal agencies mentioned above, there is basis for the view that the apprentices do not have the same problems of collec- tive bargaining which those employees included in the unit found to be appropriate have. We therefore find that the apprentices should be excluded from the bargaining unit.? We find that all employees of the respondent at its Jamestown, New York, plant, excluding supervisory, clerical, executive, and sales employees, engineers, draftsmen, and apprentices, constitute a unit appropriate for the purposes of collective bargaining, and that 'said unit will insure to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act. 2. Representation by the U. A. W. of a majority of the employees in the appropriate unit On August 5, and on September 24, 1937, the U. A. W. filed its petition and amended petition, respectively, alleging that a question affecting commerce had arisen concerning the representation of em- ployees of the respondent at its Jamestown plant. On August 21, 1937, a consent election was held. Of 429 employees eligible to vote in the consent election, 202 voted for and 129 voted against the U. A. W.; 3 ballots were void; 95 employees failed to vote. After the respondent had refused to recognize the U. A. W. as the bargaining agent,' the Board, on September 21, 1937, ordered an investigation and author- ized the Regional Director to conduct it and to provide for an appro- priate hearing upon due notice. Pursuant to notice, a hearing was held on October 18 and 19, 1937. The Board, having found the appro- priate unit to be slightly different from that prevailing in the consent election, and it appearing that a large number of employees failed to vote in the consent election because of an unavoidable delay in open- 7 Cf. Matter of Lightner Publishing Corporation of Illinois and Chicago Printing Press- men's Union No. 3, Chicago Typographical Union No. 16, 12 N. L. R. B. 1255; H. E. Fletcher Co. and Granite Cutters' International Association of America , 5 N. L. R. B. 729; Matter of Bethlehem Shipbuilding Corporation, Limited and Industrial Union of Ship- building Workers of America, Local No. 5, 11 N. L. R. B. 105, 151; Matter of Hyatt Bearings Division, General Motors Corporation and Hyatt Employees Association, Inc., 14 N. L. R. B. 441. Y Although the reason for the respondent 's refusal to abide by the results of the consent election is not clear from the record , the respondent later took the position that the "majority" required by the Act is a majority of those eligible to vote in the election. The U. A. W. in the consent election obtained a majority of those voting and not a majority of those eligible to vote therein. MARLIN-ROCKWELL CORPORATION 653 ing the polls, refused to certify the U. A. W. on the basis of its selec- tion by a majority of those voting in the consent election, and directed that an election by secret ballot be conducted.9 On February 28, 1938, the respondent filed its objections and excep- tions to the balloting and the Intermediate Report. The objections and exceptions were amended at a hearing hereinafter mentioned. The exceptions, as amended, were in substance that (1) the number of votes cast for the U. A. W. does not constitute a majority of those employees eligible to vote in the election; (2) no representative of the respond- ent was permitted to observe the balloting; (3) certain employees with- in the unit who were laid off after the eligibility date, September 24, 1937, were permitted to vote in the election; and (4) the ballots of certain employees, who, the respondent contends, were eligible to vote, were challenged and were not counted in the final tally. Pursuant to notice, a hearing was held on the objections and excep- tions on April 8, 1938. On June 10, 1938, the Board issued its certifica- tion of representatives. - As to the objections, the Board ruled : (1) that a majority of those voting is the majority required by the Act; (2) that there was no abuse of discretion in refusing to allow a representa- tive of the respondent at the poll; (3) that the 174 employees laid off after September 24, 1937, 119 of whom voted in the election, retained their employee status and had an interest in the election since the business of the respondent is seasonal and the policy of the respondent is to reemploy those employees laid off, as business warrants; and (4) it was unnecessary to count the challenged ballots since the U. A. W. would have had a majority of those voting even if all the challenged ballots were counted against the U. A. W. Having overruled the obejctions, the Board certified the U. A. W. as the exclusive representa- tive of all the employees in the appropriate unit.19 The respondent offered no new evidence at the hearing held during August 1938 to support the above objections. We, therefore, affirm our rulings in the certification of representatives mentioned above. We find that on February 25, 1938, and thereafter, the U. A. W. had been designated by a majority of the respondent's employees in the appropriate unit as their representative for the purposes of col- lective bargaining. Pursuant to Section 9 (a) of the Act, it was, therefore, the exclusive representative of all the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 9 Matter of Marlin-Rockwell Corporation and Local No. 338, United Automobile Workers of America, 5 N. L. R. B. 206. 10 Matter of Marlin-Rockwell Corporation and Local No. 338, United Automobile Workers of America, 7 N. L. R. B. 836. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The negotiations Following the Board's certification, a representative of the U. A. W. wrote to the respondent on June 14, 1938, requesting an appointment for the purposes of collective bargaining. The manager of the respond- :ent on June 16, 1938, replied by letter as follows : Answering your letter of June 14, 1938, there would seem to be no point in meeting with you as we would only have to repeat that we cannot recognize you as the sole bargaining agency for all of our employees. In our counsel's opinion, the decision of the Board is not consistent with Section 9 (a) of the law. In its brief the respondent states that it refused to recognize the U. A. W. as the bargaining representative on the following grounds : (1) the Board erred in excluding apprentices from the appropriate unit; (2) the ballots of four employees were challenged and were not counted; (3) the agent conducting the election did not allow the respondent to have a representative present at the election; (4) the Board permitted the U. A. W. to offer proof of membership while refusing the respondent a subpoena daces teceum for all the records of the U. A. W.; (5) the majority contemplated by the Act is a majority of those eligible to vote in the election and not a majority of those voting therein; and (6) persons who were on the pay roll as of Septem- ber 24, 1937, the eligibility date, who were laid off prior to the election, were permitted to vote in the election. The first three grounds were considered in our Certification of Representatives, mentioned above; they merit no further discussion here since no new evidence in support of them has been offered. As to the fourth ground, our Certification of Representatives was based on the results of an election held by the Board and not upon any other proof of membership offered by the U. A. W. Therefore the respondent is prejudiced neither by the Board's refusal to issue the subpoena daces tecum nor by the Board's receiving evidence of membership in the U. A. W. The U. A. W. was not compelled to disclose its membership lists and other records because the. Board recognizes that the release of such information might expose the members of a union to possible discrimination by an employer." The membership rolls would have to be produced for examination, however, if.they were to serve as a basis for a certification of repre- sentatives without an election being held. The fifth ground has been considered by the Board in numerous other cases. The Board has decided that a majority of those voting "Matter of Samson Tire and Rubber Corporation and United Rubber Workers of America, Local No.44J, 2 N. L. R. B. 148. MARLIN-ROCKWELL CORPORATION 655 in the election, though less than a majority of those eligible to vote therein, determines the bargaining representative . This view accords with the principle universally applied in ordinary elections under our democratic form of government . Practical operation of the Act requires that such a principle should be applied also in an election among the employees of a company for the purpose of selecting bargaining representatives.12 As to the sixth ground, namely , that persons who were not "em- ployees" at the time of the election were allowed to vote, we disposed of this matter in the Certification of Representatives in this case. We will recapitulate the facts here , however. In the Decision and Direction of Election , discussed above, we selected September 24, 1937, the date on which the U. A. W. filed its amended petition for investigation and certification of representatives, as the date ap- propriate for determining the eligibility of employees to vote in the election . The election was held on February 25, 1938. During the period from September 24, 1937, to February 25, 1938, 174 employees were laid off. One hundred and nineteen of these employees par- ticipated in the election . During the hearing which was held on April 4, 1938,13 Stanley W. Brandel , the superintendent , testified that while the respondent was not committed to recalling employees laid off, it maintained a list of all employees laid off and recalled them as business warranted ; that if business should return to its condition prior to the lay-offs, most of those who had been laid off would be recalled ; that after prior lay-offs a majority of those laid off had been recalled; and that employees who were laid off reason- ably expected to be recalled at some future date. In view of the seasonal nature of the respondent's business and the respondent's policy of recalling employees who have been laid off , we are of the opinion that the employees who were laid off retained their employee status 14 and clearly had an interest in the election . They were entitled to vote therein. 11 This problem is thoroughly discussed in.Matter of R. C. A. Manufacturing Company, Inc. and United Electrical & Radio Workers of America, 2 N. L. R. B . 159, 168. See also Virginian By. Co . v. System Federation No. 40, 84 F. ( 2d) 641, affirmed , 300 U . S. 515, where the Court had before it the similar language in the Railway Labor Act , 45 U. S. C., Section 131, et seq. >s The record in this hearing was made a part of the record in the instant case by stipulation of the parties. 14 See Matter of Flexo Products Corporation and International Brotherhood of Elec- trical Workers, Local B-71S, 7 N. L. _R. B. 1163 ; Matter of Alaska Packers Association and Alaska Cannery Workers Union, Local No. 5, Committee for Industrial Organization, 7 N. L. R . B. 141 ; Matter of National Distillers Products Co. and United Distillery Workers of U. S., Local No . 484, affiliated with Committee for Industrial Organization, 5 N. L. R. B. 862. The old Railway Labor Board held in a number of decisions that "employees" as used in the Transportation Act of 1920 included "laid off or furloughed employees entitled to return to the service under the seniority rule when the force is restored to what is generally recognized as constituting a normal force." See Nashville C. & St. L. By. v. Railway Employees' Department of American Federation of Labor, 93 F. (2d ) 340 (C. C. A. 6 ) and cases there cited. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that on and after June 14, 1938, the respondent refused to bargain collectively with the exclusive representative of its •em- ployees in the unit found to be appropriate. By such refusal the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act. B. Interference, restraint, and coercion Herbert S. Anderson, secretary of the U. A. W., testified that ini- mediately preceding the consent election on August 21, 1937, Martin Peterson, a foreman, told a number of employees in the shop that the plant would be closed if the U. A. W. should win the election. He testified that he reported this conduct to Stanley W. Brandel, su- perintendent of the plant, and advised him that if it were not termi- nated, he would consult the Board about it. Both Brandel and Peterson testified at the hearing; neither testified concerning this incident. We find that Peterson made the statements attributed to him above. Junius Brown testified that during February 1938 Peterson saw him recovering some parts from the floor and asked him whether he was looking for union buttons or union-card receipts. He further testified that on the day before the election he had a conversation with Peterson concerning the election and Peterson said to him, "I wouldn't vote for that, Brown, if I was you. They will shut down rather than recognize the Union." Although Peterson was called to testify, he did not testify concerning this matter. We find that Peterson made the statements attributed to him by Brown. Louis F. Leonhart, assistant superintendent of the plant, admitted that he talked to Anderson concerning Anderson's union activities "once, or maybe twice," that Anderson told him how much he paid in dues, and that he "might have asked him, `where does the money go,' or something similar to that." We find that the respondent, by the activities set forth above, in- terfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On April 5, 1937, the U. A. W. held a meeting at the Hotel Samuels in Jamestown.. On the following day the chairman and secretary, who were elected at the meeting, were discharged. Sub- sequently, 22 additional employees who had attended the meeting were discharged. The Board on July 2, 1937, secured the reinstate- ment of these employees. Four of the employees who were reinstated pursuant to the settle- ment testified that Brandel told them at the time of their reinstate- ment to forget about the union, to remember that they were being MARLIN-ROCKWELL CORPORATION 657 constantly watched, that upon making their first mistake they would, be discharged, and that by that time there would be no National Labor Relations Act to protect them. Brandel and Leonhart testi- fied that the substance of Brandel's talk to the reinstated employees was that they should not engage in union activities on the respond- ent's premises at any time, that the respondent would not violate the Act, and that it would not be necessary for them to invoke the protection afforded by the Act again. Brandel and several super- visory employees further testified that in several meetings of the supervisory employees, beginning shortly after July.2, 1937, the supervisory employees were advised to "lean over backwards" in their dealings with the employees and to refrain from discriminating against the union members. In view of the difficulty in resolving the conflict in the testimony set forth above, we do not find that the respondent, by its supervisory employees, made statements to the employees reinstated pursuant to the Board's settlement, at the time of their reinstatement, which inter- fered with, restrained, or coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. C. The lay-offs The complaint alleges that the respondent laid off Bernard J. Polinski, Harry W. Rapp, Gunnard Nelson, Frances Stead, Elmer E. Melene, Francis B. Winans, Herbert S. Anderson, Junius Brown, Edward Lane, and Carl G. Carlson, and refused to reemploy them, because of their membership in and activities in behalf of the U. A. W. The respondent in its answer denied these allegations of the complaint. During the course of the. hearing counsel for the Board moved to dismiss the complaint as to Edward Lane, and counsel for the respond- ent joined in the motion. The motion was allowed. The Trial Examiner in his Intermediate Report found that Bernard J. Polinski, Junius Brown, and Carl G. Carlson were laid off for reasons other than membership in and activities in behalf of the U. A.. W. The U. A. W. did not file exceptions to these findings. We have considered the entire record as to these employees, and agree with the Trial Examiner's findings as to them. Gunnard Nelson, Elmer E. Melene, Harry W. Rapp, and Frances Stead were among 67 employees who were laid off on December 29, 1937. These lay-offs occurred during a slump in the respondent's business. From September 1937 to July 1938 the respondent laid off 271 employees. Brandel, the superintendent, and other supervisory officials testified that the procedure used in determining all the lay-offs was as follows : When a foreman found that his production schedule required a reduction in the number of employees working in his de- 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD partment, he reported this condition to Leonhart, the assistant super- intendent. The foreman and assistant superintendent then went to the superintendent. These three would then go over the list of employees, considering their ability, efficiency, productiveness, willingness and industry as a workman, the number and kinds of jobs each was trained to do and, all other things being equal, seniority and the number of their dependents. The employee who . by this test seemed of least value to the respondent was then laid off. Brandel further testi- fied that in order to retain in their employ some valuable employees, it was sometimes necessary to transfer such employees from a depart- ment where they were, not needed, to some, other department in which less valuable employees were employed. Those employees in that de- partment who were of least value to the respondent were then laid off. When additional labor was needed, the same procedure was followed in deciding who among the, employees who had been laid off should be reinstated. We find that the respondent generally used some such procedure as is outlined above in determining who among its em- ployees should be laid off or reinstated. Nelson and Melene were among those reinstated under the Board's settlement of July 2, 1937; Rapp and Stead were not. Nelson was the recording secretary of the U. A. W. and had conferred with the man- agement in his official capacity several times. He was a skilled employee. Nelson testified that he had greater seniority than most of the employees doing the same type of work who were retained after he was laid off. He mentioned specifically Casler, Mosher, Kolstee, and Johnson. The superintendent, assistant superintendent, and fore- man of these men testified that all of the employees retained were more efficient than Nelson and that they were retained because of their greater efficiency. Casler was later laid off when the force was further reduced. It appears that he is a member of the U. A. W. On the whole record we feel that the respondent applied its test set out above and found that Nelson was not as efficient as those employees which it retained. We find that Nelson was laid off for reasons other than membership and activities in the U. A. W. Melene was sergeant-at-arms of the U. A. W. He solicited member- ship in the U. A. W. on the respondent's premises. Melene testified that Connors, Bailey, and Swanson, employees engaged at similar work, had less seniority than he and that they were retained after he was laid off. Melene's foreman and the superintendent testified that Swan- son and Bailey were more efficient workmen, while Connors was equally as capable as Melene and was retained because of his ability to measure rings. We believe that the respondent applied the test set forth above in Melene's case and that it laid off Melene after deciding that he was MARLIN-ROCKWELL CORPORATION 659 inferior to the workers retained. We find that Melene was laid off for reasons other than membership and activities in behalf of the U. A. W. Rapp was not an important figure in the U. A. W. At the time he was laid off lie was the only employee engaged in inspecting rings between the rough grinding operation and the grinding of the outer diameter. His duties were assumed by Cecil Stankey. Rapp testified that two set-up men, Anderson and Stuart, told him that Stankey was not a capable inspector. Forty-two employees were let out of the grinding department, in which Rapp worked, during December. 1937. Leonhart, assist<iiit superintendent, testified that all those who were laid off were less efficient than those retained. Peterson, Rapp's fore- man, testified that Stankey was kept because he was the better man and that, while he is doing Rapp's work, he combines that with other operations. We give credence to the testimony of the respondent's witnesses and accept their version of the lay-off. We find that Rapp was laid off for reasons other than membership in and activities in behalf of the U. A. W. Stead was a shop steward and' collected dues in the plant. She testified that her foreman told her at the time she was laid off that the loyalty of the employees determined whether or not they would be retained and that the management intended to destroy the U. A. W. Kreutz, her foreman, testified that when he informed Stead that she was laid' off, Stead said that she was being laid off because of her affiliation with the U. A. W. and that he told her that her union activi- ties had not been thought of in discussing her lay-off. We find that Kreutz's conversation was substantially as he has related it. Stead named a number of employees having less seniority who were retained after she was laid off. From the testimony of Brandel and Kreutz, her foreman, it appears that these employees were more efficient or did a different type of operation. Kreutz testified that Stead had caused friction at the assembly tables, where the employees work in teams, and that she was then transferred to a rivet-sticking operation. All the other female employees engaged in this operation were laid off before Stead was laid off. We find that Stead was laid off for reasons other than her membership in and activities in behalf of the U. A. W. Francis B. Wincvn.s was employed by the respondent on October 26, 1936. At the beginning of his employment he was made a finish grinder in the outer race department. Later he was transferred to the pre- cision department where he did surface grinding. At the time of this transfer, Foreman O'Brien told him, "You have done some good work here, and that is the reason I am putting you in there." Winans be- came president of the U. A. W. during October 1937, and conferred with the management in his official capacity several times. Winans was laid off on January 21, 1938. While 198 employees had been laid 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off during the 5 months preceding Winans' lay-off, Winans was the only employee laid off on January 21, 1938, and there were no further lay-offs until February 1, 1938, when Herbert S. Anderson, secretary- treasurer of the U. A. W. was laid off. When Winans was laid off by Foreman Johnson,.'Winans told Johnson that he surmised his position in the U. A. W. was responsi- ble, and Johnson answered, "That is something I am not at liberty to talk to you about . . . I haven't anything against your work . . . and as soon as things pick up to normal again, I will try to get you back on." Johnson then said that there were older employees in another department, and he would have to give them the preference. When Winans was laid off, John Greene, who was not a member of the U. A. W., was transferred to the precision department and re- placed Winans.. Peterson and Perry, two other employees in the precision department having less seniority than Winans, were re- tained after Winans was laid off. While Greene had been in the respondent's employ from time to time since 1922, his aggregate term of service was not shown, and his latest period of employment with the respondent began after Winans had entered the respondent's employ. Under these circumstances, Winans had greater seniority than Greene. Foreman Johnson considered Winans one among four equally effi- cient workers in the respondent's employ at the time Winans' lay-off was considered. In comparing Winans with Perry, Johnson testified as follows : "my own personal opinion, John Perry was a very good mechanic. He also had supervision of the night work at one time. I personally thought that his services were very much superior to Mr. Winans on that one ground-that one count, and also that his work as a workman was just about even with Mr. Winans' work." John- son testified that Winans and Peterson "were just about on a par as far as their workmanship is concerned, but that Gerald Peterson had had previous experience on matching, . . . which was the deciding factor in that choice." Johnson testified that Greene "was retained on account of his exceptional ability to produce a lot of work, and also that he had had previous experience on other machines and could be used on these operations if necessary.". Johnson admitted, however, that Winans had experience on a large bearing operation which Greene did not have, a factor which was not mentioned at the time Winans' lay-off was considered. As already noted, Greene was transferred to the precision depart- ment from another department, and filled Winans' job. Concerning the transfers from one department to another, Brandel testified that "There are certain operations in this precision department . . . where men can adapt themselves very quickly and readily to that work. MARLIN- ROCKWELL CORPORATION 661 Against that, we have other departments . .. where it takes four to five to six years to make a roan an operator . . . They were the better grade of workmen throughout the plant who ... we wanted for future. use. We would make places for them in operations that re- quired less skill . . ." Applying this test to Greene 's transfer to the precision department at the time Winans was laid off, we would ex- pect Greene to be considerably superior to Winans or to the other employees of Winans' caliber in the precision department. The record shows, however, that Greene actually was not superior to such other employees . Although Foreman Johnson testified that he con- sidered Winans, Perry, and Peterson workmen of about equal ability, Greene, who had displaced Winans, was later laid off while Perry and Peterson were retained . We conclude that the respondent con- sidered Perry and Peterson to be at least as valuable employees as Greene. In view of the foreman's testimony that Winans, Peterson, and Perry were nearly of equal ability, we infer that Winans was, in fact, of approximately the same value as an employee as was Greene. Under all the circumstances, Johnson's reasons, set out above, for replacing Winans with Greene and for retaining Perry and Peter- son in preference to Winans are not convincing. Since Winans was an important U. A. W. officer who was replaced by a non-union em- ployee, and whose lay-off was followed by that of the U. A. W. secretary , we conclude that Winans' union activity prompted the respondent to discriminate against him. We find that by the lay-off of Francis B. Winans the respondent 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 the rights guaranteed in Section 7 of the Act. Herbert S. Anderson, was first employed by the respondent in 1924. Except for seasonal lay-offs, lie was continuously employed until April 7, 1937,-when he was laid off immediately following his election as secretary of the U. A. W. He was reinstated pursuant to the set- tlement of Jul), 2, 1937 . Following his reinstatement he was elected to the grievance committee . Anderson was the secretary -treasurer of the U. A. W. at the time of the hearing in this case. The Trial Ex- aminer found Anderson to be the most forceful and active of the U. A. W. members who testified at the hearing. In November 1937, Brandel called Anderson into his office -and questioned him about making collections in the plant . Brandel warned him that if he were caught making collections again, he would be discharged. Anderson was laid off on February 1. 1938. He told his foreman, O'Brien, that he wanted to see Bra.ndel because lie felt that lie was 283030-41-vol . 19-43 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD being discriminatorily laid off. Brandel agreed to see him. Ander- son told Brandel that lie felt that he was being discriminated against since others with less seniority were being retained. Anderson testi- fied that he asked Brandel whether or not he would be recalled when normal business activity should be resumed, and that Brandel an- swered, "Herb, that will depend upon you and your attitude." While Brandel did not specifically deny making this statement, he denied generally that union activities were mentioned during his talk with Anderson, or that he said anything that indicated that Anderson was discriminatorily laid off. We find that Brandel made the statement attributed to him above. The respondent contends that Anderson was laid off because of slack work and that all who were retained were more efficient workmen. On cross-examination O'Brien, Ander- son's foreman, admitted that Harry Ecklund, an employee engaged in work similar to Anderson' s was laid off before Anderson, but that Ecklund had been rehired. Anderson has not been rehired. O'Brien explained that he recommended that Ecklund rather than Anderson be rehired because lie felt that Ecklund was the better man. He claims that at the time he first laid off Ecklund he thought Anderson was the more capable of the two but that he has since changed his mind. This explanation by the foreman for his unusual treatment of Anderson's case does not ring true. Applying the respondent's test for employment and lay-off, which we have adopted in all the foregoing cases, Anderson should have been recalled before Ecklund. Anderson was the only employee laid off on February 1, 1938. For 10 days prior thereto, the only lay-off was Winans, the president of the U. A. W. We feel that the procedure usually employed in-laying off and in recalling employees was. not followed in Anderson's case. Anderson was probably the most important figure in the U. A. W. His activities had elicited a warning from the management. We find that the respondent laid off Anderson and refused to reemploy him because of his membership in and activities in behalf of the U. A. W. We find that by the lay-off of Herbert S. Anderson, the respondent discriminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization and interfering with, restraining, and coercing its employees in the exercising of the rights guaranteed in Section 7 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 MARLIN-ROCKWELL CORPORATION 663 tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY The respondent having engaged in unfair labor practices, within the meaning of the Act, we shall order it to cease and desist therefrom and to take certain affirmative action which We find will effectuate the policies of the Act. We have found that the respondent refused to bargain collectively with the U. A. W. as the representative of its employees within an appropriate unit. We shall order the respondent to bargain with the U. A. W., upon request, as the representative of all its employees in the unit herein found to be appropriate. Having found that the respondent laid off Francis B. Winans and Herbert S. Anderson because of their membership in and activities in behalf of the U. A. W., we shall order the respondent to reinstate them without prejudice to their seniority or other rights and privileges. We shall also order the respondent to make each of them. whole for any loss of pay he has suffered by reason of his lay-off by payment to him of a sum equal to the amount which he normally would have earned as wages from the date of his lay-off to the date of the offer of reinstate- ment, less his net earnings 15 during such period. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. International Union, United Automobile Workers of America, Local #338 is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act.. 3. The respondent, by discriminating in regard to the hire and tenure of employment of Francis B. Winans and Herbert S. Ander- na 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 Saw-mill Workers Union, Local ?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 he deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county , municipal , or other govern- ment or governments which supplied the funds for Paid work -relief projects. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. All the employees, excluding clerical, supervisory, executive, and sales employees, engineers, draftsmen, and apprentices, employed at the respondent's plant in Jamestown, New York, constitute a, unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 5. International Union, United Automobile Workers of America, Local #338, was on February 25, 1938, and at all times thereafter has been, the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 6. The respondent, by refusing to bargain collectively with Inter- national Union, United Automobile Workers of America, Local #338, as the exclusive representative of its employees in the appropriate unit, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent, by laying off Bernard J. Polinski, Junius Brown, Carl G. Carlson, Gunnard Nelson, Elmer E. Melene, Harry W. Rapp, and Frances Stead, has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, Marlin-Rockwell Corporation, Jamestown, New York, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Union, United Automobile Workers of America, Local #338, as the exclusive representative of all its employees at the Jamestown plant, excluding clerical, supervisory, executive, and sales employees, engineers, draftsmen, and apprentices; (b) Discouraging membership in International Union, United Automobile Workers of America, Local #338, or any other labor organization of its employees, by discharging or laying off its em- ployees, or any of them, or in any other manner discriminating in regard to the hire or tenure of employment of its employees; MARLIN-ROCKWELL CORPORATION 665 (c) 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 or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with International Union, United Automobile Workers of America, Local #338, as the exclusive representative of all its employees at the Jamestown plant excluding supervisory, executive, and sales employees, engineers, draftsmen, and apprentices, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Offer to Francis B. Winans and Herbert S. Anderson imme- diate and full reinstatement to their former positions, without prejudice to their seniority and other rights and privileges; (c) Make whole Francis B. Winans and Herbert S. Anderson for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from the date of such discrimination to the date of the offer of reinstatement, less his net earnings during said period; deducting, however, from the amount otherwise due them, monies received by them during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted, to the appropriate fiscal agency of the Federal, State, county, munici- pal, or other government or governments which supplied the funds for said work-relief projects; (d) Post immediately in conspicuous places throughout its plant at Jamestown, New York, notices to its employees stating that the re- spondent will cease and desist as provided in paragraphs 1 (a), (b), (c), and (d) of this Order; that the respondent's employees are free to become or remain members of United Automobile Workers of America, Local #338, and that the respondent will not discriminate against any employee because of membership or activity in that or- ganization; and that the respondent will take the affirmative action required by paragraphs 2 (a), (b), and (c) of this Order; and main- tain such notices for a period of at least sixty (60) consecutive days from the date of posting; 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for the Third Region, in writing, within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent has discriminated in regard to the hire and tenure of employment of Bernard J. Polinski, Junius Brown, Carl G. Carl- son, Gunnard Nelson, Elmer E. Melene, Harry W. Rapp,- and Frances Stead, be, and it hereby is, dismissed.