Air Associates, Inc.

In the Matter of AIR ASSOCIATES, INCORPORATED and INTERNATIONAL UNION UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL Nay 865, AFFILIATED WITH THE C. I. O. Case No. C-1175.-Decided February 10, 1940 Aviation Accessories , Parts, and Equipment Manufacturing and Distributing Industry-Interference, Restraint, and Coercion : anti-union statements ; expres- sion of hostility to outside unions ; use of application form requiring disclosure of union membership ; attempt to instigate movement to form inside organiza- tion-Discrimination : discharges for union membership and activity ; discharges intended to discourage union membership by creating resentment against union- Reinstatement Ordered : discharged employees-Back Pay: awarded. Mr. Albert Ornstevn, for the Board. frScandrett, Tuttle c Chalaire, by Mr. Walter Chaldire, of New York City, for the respondent. Mr. Benjamin Rubenstein, of New York City, for the Union. Mr. David Findling, 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 No. 365, affili- ated with the C. I. 0., herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York City) issued its complaint dated August 29, 1938, and its amended complaint dated September 15, 1938, against Air Associates, Incorporated, Garden City, New York, herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and amended complaint, accompanied by notice of hearing and amended notice of hearing thereon, respectively, were duly served upon the respondent and the Union. With respect to the unfair .-labor practices, the compllaint• as amended alleged in substance (1) that the respondent dischargedcer- 20 N. L. R. B., No. 36 356 AIR ASSOCIATE'S, TNCORPORATED 357 tain-named employees 1 and has refused and continues to refuse to re- instate said employees, because they joined and assisted the Union and engaged in other concerted activities for the purposes of collective bargaining and other mutual aid and protection; (2) that the re- spondent, from on or about December 15, 1937, down to and including the date of the issuance of the complaint herein, urged, persuaded, and warned its employees to refrain from becoming or remaining members of the Union, and threatened said employees with discharge and other reprisals if they became or remained members thereof, and (3) that the respondent, by these acts and other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On September 22, 1938, the respondent filed its answer to the amended complaint S admitting the allegations of the complaint with respect to the nature of its business, but denying the averments of unfair labor practices. Pursuant to notice, a hearing was held at New York City front September 22 to October 1.8, 1.938, before William Seagle, the Trial Examiner duly designated by the Board. The Board,' the respond- ent, and the Union 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 upon the issues was afforded all parties. At the close of the Board's case, the Trial Examiner granted the motion of counsel for the Board to dismiss without prejudice the allegations of the complaint as to Walter Betts who was alleged in the complaint to have been discriminatorily dis- charged, but who did not appear or testify at the hearing. At the close of the hearing, the Trial Examiner granted the motion of counsel for the Board to conform the pleadings to the proof as to formal matters. During the course of the hearing, the Trial Exam- iner made various other rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. On or about January 26, 1939, the Trial Examiner issued his Inter- mediate Report, which was thereafter filed with the Board, and copies i The names of these employees and the dates of their discharges are as follows : Joseph Geoghegan and Ted Rodolitz on March 15 , 1938; Joseph J. Seifert on March 17, 1938,- Walter Betts on March 25, 1938 ; Charles Fred Werner on March 27, 1938; and Warren Edwin Thompson on April 22, 1938. Rodolitz, Seifert, and Warren Edwin Thompson are incorrectly named in the complaint as Rodilitz , Seifer, and Warren Thompson, respectively ; the complaint also erroneously alleges that Geoghegan and Rodolitz were discharged on or about March 25, 1938. At the hearing, a motion to amend the complaint in respect to these matters was granted without objection. 2 The complaint also alleged that the respondent kept under surveillance the meetings and meeting places of its employees who were union members. On motion of the Board's attorney, during the hearing the Trial Examiner ordered this allegation stricken from the complaint. . $ This answer Is the same as the answer to the original complaint , which was filed on. September 6, 1938. 283031-41-vol. 20-24 4 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of which were duly served upon the respondent and the Union. In his Intermediate Report the Trial Examiner found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist from the aforesaid unfair labor practices, reinstate with back pay the employees found by him to have been discriminatorily discharged ,.4 and take certain other affirmative action necessary. to remedy the situation brought about by the unfair labor practices found. On March 11, 1939, the respondent filed its exceptions to the Intermediate Report, together with a request for oral argument be- fore the Board upon the issues raised thereby. On May 17, 1939, the respondent, and on June 1, 1939, the Union, filed briefs which the Board has considered. Pursuant to notice duly served upon the respondent and upon the Union, a hearing for the purpose of oral argument was had on November 9, 1939, before the Board in Washington, D. C. The respondent and the Union were represented by counsel and partici- pated in-the oral argument. During.the oral argument the attor- ney for the Union stated that it is now known as Local No. 661 in- stead of Local No. 365, and moved orally to amend the pleadings and all proceedings herein accordingly. The attorney for the respondent declined to consent to the motion, on the ground that he had no knowl- edge as to whether Local No. 661 is the same organization as Local No. 365. Inasmuch as there is no proof in that regard,5 the motion is hereby denied without prejudice. On November 13, 1939, the re- spondent filed proposed findings of fact 9 which the Board has con- sidered in connection with the exceptions of the respondent to the Intermediate Report. We find the exceptions to be without merit in so far as they are inconsistent with the findings, conclusions, and order set forth below. The Board has examined and reviewed the record with respect to the respondent's charge of prejudicial conduct of the Trial Examiner during the hearing, and finds such charge to be without substance. We have carefully considered the further charge by the respondent that the Trial Examiner's Intermediate 4I. e., all of the employees named in the complaint ( See footnote 1, supra ) with the exception of Walter Betts. Early in 1939, a Split occurred in the ranks of the International Union, United Auto- mobile Workers of America ; the Board has recognized this split as establishing two sepa- rate labor organizations , one affiliated with the Congress of Industrial Organizations and the other affiliated with the American Federation of Labor. See Matter of Brewster Aero- nautical Corporation and International Union, United Automobile Workers of America,. Local No. 365, affiliated with the Congress of Industrial Organizations, 14 N. L. R. B. 1024. The record in the instant case, however , fails to show what action , if any, with reference to this controversy , was taken by Local No. 365. 6 The proposed findings of fact were accompanied by a letter in which the respondent states that they are enclosed "for submission " on its behalf. We shall consider this letter as a request for leave to file the . proposed findings of fact. ' The Board hereby grants such leave and ' orders 'their filing instanter. AIR ASSOCIA'TE'S, INCORPORATED 359 Report presents a biased view of the evidence. We find it unneces- sary to pass upon this claim, since, in resolving issues of credibility, we have reached our determination in each instance upon the face of the record, and the alleged bias, therefore, presents no basis for any claim of prejudice. Upon the entire record in the case, the Board makes the following : "`FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Air Associates, Incorporated, a New York corporation, is engaged in the manufacture, purchase, sale, and distribution of aviation acces- sories, parts, and equipment. It maintains and operates a produc- tion and distribution plant, and five sales offices. The production and distribution plant and one sales office are located at Roosevelt Field in Garden City, New York, and its other sales offices are located in Chi- cago, Illinois; Marshall, Missouri; Dallas, Texas; and Glendale, Cali- fornia.. This case concerns only, the production and distribution plant=hereinafter referred 'to as the Roosevelt Field plant, at which the respondent employed, in the period from January 1 to August 1, 1938, approximately between 60 and 70 persons,7 and which consists of two main departments, a machine shop or production depart- ment, and a stock and shipping department. During the calendar year 1937, the respondent's sales of goods which it manufactured and processed at the Roosevelt Field plant aggregated approximately $60,000.1' During the same period, the respondent sold and shipped "through its Roosevelt Field plant," in addition to the goods manufactured and processed by it, goods manu- factured by other manufacturers, and valued at approximately $450,- 000.° Approximately 70 per cent of the goods manufactured and processed at, or sold and shipped through, the Roosevelt Field plant and sales office were shipped to destinations in States other than the State of New York. During. the same year, the respondent purchased for shipment to the' Roosevelt Field plant and-sales office, raw materials and finished products which cost approximately $350,000, and approximately 50 per cent 10 of which were shipped from points outside the State of 7 This figure does not include approximately 50 salesmen and clerical employees who were employed at the Roosevelt Field plant and sales office. The record does not reveal what proportion of the 50 persons were salesmen and what proportion clerical employees, and how many of the clerical employees were assigned to the sales office as distinguished from the production and distribution plant. 8 The record does not indicate whether all of these goods were sold at the Roosevelt Field sales office. 9 This is the sales price of these goods. l0 The record does not indicate . whether the percentages of sales and purchases refer to th', value. ' or to the mass , of the goods. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD New York. For the purpose of this proceeding, the respondent concedes that it is engaged in commerce within the meaning of the Act. II. THE UNION International Union United Automobile Workers of America, Local No. 365, is a labor organization, affiliated at the time-of.-the hearing 11 with the Congress of Industrial Organizations, and admits to its membership persons employed in the airplane and automobile manufacturing industry in Long Island and vicinity. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In November 1937, the Union began organizational activities among employees at the respondent's Roosevelt Field plant. In December, after several preliminary meetings had been held, a shop committee was chosen consisting of four, employees; two of these en ployees, William Hartmann, who was chairman, and subsequently elected vice president of the Local, and Joseph J. Seifert, who was shop steward, represented the machine shop; the remaining two, Harry Lee and Herbert Darling, represented the stock and shipping department. On February 10, 1938, the shop committee called on F. Leroy Hill, the president of the respondent, stated that "the boys" in the machine shop and stock and shipping department had joined the Union;- pre-sented a copy of a proposed collective bargaining agreement, and asked for an appointment for a conference between union representa- tives and the respondent for negotiations with reference to its terms. It is undisputed that Hill first exclaimed, "Wait a minute; take it easy. Let me get this straight. What is the trouble in here?" Seifert testified that Hill also then stated, "I am not opposed to any union. I don't see why you fellows want to create two sides and have two sides. We are like one happy family in here." According to Seifert, Hill also inquired why the office girls, and "the rest of the staff," including Hill himself, could not join the Union; and stated that he did not regard it as "very fair" of the employees to require him to bargain with in "outsider," and. that he would not do so. Hill did not deny Seifert's testimony in this regard, and the respondent, in its brief and at the oral argument, admitted that Hill made in substance the statements attributed to him "at. or about" the time the proposed contract was submitted by the shop committee. Accordingly, we credit Seifert's testimony in this regard. 11 See footnote . sniwa. Air ASSOOL TES, INCORPORATED 361 That night Hill familiarized himself with the proposed contract and the provisions of the National Labor Relations Act and, the next afternoon, approached Hartmann and proposed that the committee come up to Hill's office to "go over the contract in detail." Upon being informed by Hartmann that the committee was not permitted to do_,so. unless a union organizer was present, Hill, according to'his own testimony, said that he "did not want to talk to an outside organizer, but ... wanted to talk to the boys"; that he did not know "what an outsider can possibly know about, our problems here," or what need there was "for an outsider to come in"; and that "you fellows are working here, and We can all sit clown and go over [the contract.] quickly, but I don't see that having an outsider is going to help platters in this case." Hill then continued to attempt to dis- suade Hartmann, and, either the same day or the next morning, sought to dissuade Lee and Seifert from dealing with him through a union organizer. In these conversations, Hill admitted that he also "touched briefly upon some of the points in the contract" which lie regarded as "unfair" to other employees. of the respondent who were not covered by its provisions, although he was told by the other coln- mitteenlel ; as well as by Hartmann, that the committee was not free to discuss the contract provisions with hint. Hill also approached Darling, who refused to discuss the matter, but did so on the ground that he had resigned from the Union the day before. 12 At the hearing, Hill, after testifying to the above-mentioned con- versations with the members of the committee, stated that he had meant to convey to them only that he would not deal with an outside union until he had proof that it represented a majority of the employees, and that no manifestation of hostility to an outside union was intended. However, Hill then admitted that he had also in- tended to indicate to the members of the committee his willingness, if no "outsider" was present, to negotiate directly with the committee at once, without proof of the committee's majority representation. We are satisfied, and we find, that the respondent, by the foregoing statements, intended to, and did, convey to its employees its opposition to dealing with the Union and its preference for dealing directly with its employees or with an "inside organization." 1- The re- "Hill testified that Darling indicated to him in this conversation that he had resigned from the Union because of the unreasonable nature of the provisions of the proposed con- tract. Seifert's testimony regarding statements allegedly made by Darling at the time of his resignation indicates that Darling resigned because of his conviction that Hill would not recognize the Union . Although Darling apparently was still in the respondent's employ at the time of the hearing he was not called as a witness. We make no finding in this regard: m At the oral argument, the respondent's attorney conceded that Hill indicated to the committee that "he did not want to deal with the Union or a union organizer." 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act 14 , `. We also regard as a violation of the Act the respondent's attempt to persuade the committeemen to discuss the provisions of the pro- posed contract in the face of their assertions that they were not authorized to do so in the absence of a union organizer. Not only does such a practice by an employer. "undercut" the authority-;of; ,the chosen representative to the act within the sphere of representation in regard to the execution of a collective bargaining agreement, but it subjects the individual employees to the very pressures which collective bargaining would obviate. We find that the respondent thereby further interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act 15 Shortly after the proposed contract was submitted by the shop committee, the respondent retained counsel, and at the same. time or shortly thereafter, advised several of its supervisory employees of the situation with which it was confronted, and issued certain instruc- tions to them 16 Among these supervisory employees were Arthur Carrington and Henry Hoffmann, foremen of the stock and shipping department and machine shop, respectively. A few days after this discussion'17 Arthur Carrington addressed the employees in his department. Ted Rodolitz and Joseph Geog: hegan, two of these employees, testified that Carrington began by saying that he was not permitted to mention the name of the organi- zation of which he was speaking since that would constitute "some sort of contempt," but that he would refer to it as "boy scouts" or "rover boys"; and that he then: told the, men that Hill would,not, recognize "any outside organization coming in to tell him how to run his business"; that there would be no promotions or increases- in 14 Matter of A. F. and John Barnes Company and United Automobile Workers o f America, Local Union No. 432, 12 N. L. R. B. 1028; Matter of Bussmann Manufacturing Company and McGraw Electric Company and International Association of Machinists, District No. 9, affiliated with American Federation of Labor, 14 N. L. R. B. 322. - 36 See National Labor Relations Board v. Remington Rand, Inc., 94 F. ( 2d) 862 (C. C. A. 2), cert. denied , 304 U. S. 576, enf'g Matter of Remington Rand, Inc. and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L. R. B. 626; Matter of Charles Banks Stout, Warda Stevens Stout, and Alice Adeline Stout, Doing Business as Majestic Flour Mills and Federal Labor Union No. 20028, Affiliated with the American Federation of Labor, 15 N. L. R. B. 541. Senator Wagner stated , Hearings on Sen. Bill 1958, 74th Cong., 1st Session, pt. 1, p. 43: "to attempt to deal with his men, otherwise than through representatives they have named for such purposes would be the clearest interference with the right to bargain collectively." 16 The respondent contends that the purpose of the conversation with the supervisory employees was to assure compliance with the Act. Hill testified that the supervisory employees were instructed to avoid knowledge of the union activities of the employees and not to interfere with or report to Hill any union activity which might come to their knowledge. Hill also testified that he withdrew at this time the power of the supervisory employees to hire and fire. For reasons appearing hereinafter, we do not credit Hill's testimony with regard to the nature of these instructions. 17 Carrington testified that he addressed the employees before the conference with Hill. For the reasons stated below, we do not credit his testimony. AIR ASSOCIAT'ES', INCORPORATED 363 salary if the Union got into the plant; and that the-men would suffer financially as the result of dues, special assessments, and strikes. Carrington admitted that the meeting took place, but denied that he made any of the foreging anti-union statements. He also con- tended that the meeting took place before the conference with Hill, and that his purpose was to warn the men against congregating in the aisles and stopping work to converse, because these activities were interfering with production. He admitted, however, that in the course of his remarks he "brought out some facts of the oppor- tunities [the men] had in the firm," and that he told the men he knew that "union organizational work [was] going on." Hill testified that Carrington's address occurred after the issuance of the instruc- tions, and that Carrington, who reported the incident to Hill shortly thereafter, informed him that he had "stood the boys up and mentioned that he had said something about the Union." 18 Geoghegan and Rodolitz also testified to other statements by Car- rington expressing hostility to the Union. Thus, Carrington was heard to tell several employees under him that he wished to know "on what side you fellows are in regard to this union business," and that "the only man that has guts in this department is Herbert Darling," who had, as we have pointed out above, resigned from the Union. Carrington was also heard to say to Darling, on the occa- sion of the discharges of the shop committeemen late in February," that "he was lucky he pulled out of the Union and that it would be pretty hot for members of the Union from now on." Carrington also denied making any of these statements. As we have previously stated, Darling did not testify at the hearing. Carrington was plainly not a credible witness. In addi- tion to the contradiction by Hill, his evasiveness is apparent from the fact that he testified that he did not know, even at the time of the hearing, the name of the union which was attempting to organize the respondent's plant, but that he thought it was the C. I. O: "that was trying to chisel in." He then denied that he knew what the C. I. O. was, and stated that he thought its leader was President Roosevelt; after further questioning concerning the latter statement, -howeve,;he asserted that he was "just wondering," and finally ad- mitted that he meant John L. Lewis. We find that Carrington made the statements attributed to him by Rodolitz and Geoghegan, and referred to above. 18 Hill also testified that Carrington assured him that the references to the Union were "wholly innocent," and were simply "that [the employees ] would have to stop standing in the aisles and talking" ; that Carrington stated that he felt Hill's instructions had not been violated ; and that Hill then cautioned Carrington, who promised to "be very careful to carry out my instructions after that." Hill further asserted that he considered that Carrington had violated his Instructions "technically," but that he did nothing further concerning the matter. 19 These discharges are discussed subsequently. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hoffmann, the-foreman of the machine shop, also made statements from time to time to various employees calculated to reveal the respondent's hostility to the Union, and to discourage membership therein. In the middle of February, when one employee encountered difficulty with it job, Hoffmann stated that he thought the employee might have "this C. I. O. sickness"' ,which "is not good in here"; and, on another occasion, early in May, accused this employee of taking advantage of the "union business" by spending more tune on a job than was necessary. On several occasions in February, March, and April, Hoffmann also told various employees that "they will never have a union inside here," and that the men would lose money "by sticking to this Union"; and asked, on seeing a union button on one of the employees, "What is that button for? Do you think that will get you any place?" Although Hoffmann denied that he made the foregoing statements, it is clear from the record that he revealed a disinclination to deny such statements positively. Hoffmann's testimony was also evasive, and punctuated with re- peated statements that he could riot; remember. He was clearly an unreliable witness,20 and we find that he made the statements at- tributed to him and set forth above. As has been stated above, shortly after the proposed contract was submitted by the shop committee, the respondent retained counsel. Thereafter, counsel entered into negotiations with the Union which continued until April 21, 1938. On March 15, 1938, the Regional Office of the Board, pursuant to stipulation of the parties, made a check of the Union's membership. This disclosed that the Union represented at least 56 of the 67 eligible employees in the machine shop and stock and shipping department, and the respondent's at- torney was so advised by a letter which lie received on March 17. Although the record does not disclose the details of the various con- ferences held during the course of the negotiations, it appears that the conferences prior to March 17 were devoted to a discussion of a procedure for determining the Union's representation of a majority, of the respondent's employees, and that discussions of contractual provisions were not begun until that date. One of the conferences with reference to determining the question of majority representation was arranged for 2 o'clock on Friday, February 25, at the office of the respondent's attorney. The members of the shop committee, which now included Stanley Stepkowski in 20 Hoffmann's unreliability as a witness is illustrated by his testimony with respect to a list of names in his handwriting . Hoffmann testified that it was his practice to make up and give to the subforeman such a list quite frequently , when he desired to shift employees from his supervision to that of the subforeman , for the day . However, the list contained the name of at least one employee who was never shifted and whose presence on the list Hoffmann could not explain ; moreover, the subforeman testified that he did mot know of any occasion when he had been given such a list by Hoffmann. AIR ASSOCIATES, Z\CORPO'RAT'El) 365 place of Darling who had resigned, requested permission of their. respective foremen to leave the plant to attend this meeting, as they had been advised by the Union's attorney to do. Hill, after telephon- ing the respondent's attorney, who stated that lie did not understand that the members of the committee were to be present at the meeting, advised the committeemen that they would not be granted permission to leave-the plant and that if they left "we could not guarantee their jobs would be there when they got back." The committee neverthe- less left and attended the conference in -defiance of Hill's orders. The respondent contends that the men were refused permission to leave because they were. busy, and because the Union had agreed not to carry on union activity on company time. Apparently there was such an agreement; it was, however, plainly inapplicable. More- over, the record shows that work in the shop was comparatively slow at this time, and that other men were available to do the work of the committeemen, and that Hoffmann, under the mistaken belief that Seifert would receive permission to leave, had in fact ordered another in ichine-shop employee to relieve him. Hill discharged the members of the committee when they reported for work on their next regular workda.y.21 No new employees were hired to replace Seifert and Hartmann ; Sylvester Small, who entered the respondent's employ on February 26,22 was assigned to work which Lee. had done in the stock and shipping department, and Matthew Hoffman, who had been laid off in 1937, was recalled by the respondent at this time to replace Stepkowski. Thereafter, on or shortly before March 15, it was agreed between the Union and the respondent thit the four colninitteemen would be reinstated on March 16, and that a charge which had been filed with the Regional Office of the Board would be withdrawn.23 On March 15, the day before the committeemen were to return to work, Ted Rodolitz and Joseph Geoghegan, who, as we have already stated, were employed in the stock and shipping department, were discharged. They testified that they were told separately by Car- rington that the Union was "messing things up"; that the men were foolish to join the Union or "go ahead with it"; that it had compelled ='the,re-s i'ondent-to reinstate.the members of the shop committee; and that there was consequently no work available for Rodolitz and Geoghegan. Carrington denied that he mentioned the Union when discharging these employees, and the respondent contends that they were discharged because no work was in fact available for them and a' Lee and Stepkowski were discharged on February 26, and Seifert and Hartmann on February 28. 2 Hill testified that Small had been hired prior to the discharges, but reported for work at this time. 23 The charge was in fact subsequently withdrawn. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because they were inefficient. For the reasons stated above and upon a consideration of the entire record, we do not credit Carrington's denial. Moreover, as more fully set forth below,24 we find the re- spondent's explanation for the discharges to be untrue, and we con- clude that Rodolitz and Geoghegan were dismissed in order to create resentment against the Union among the respondent's employees, and thus to counteract the encouragement to union activity which was the natural result of the reinstatement of the committeemen. On March 16, the committeemen returned to work; the.following day, Seifert, one of the committee members, was again discharged, this time, according to the respondent, because he had spoiled a job in which he was engaged. While it is true that the job was spoiled and that the spoilage was due, at least in part, to the negligence of Seifert, the evidence establishes, as we point out below,25 that Seifert was in fact discharged because of his union activity, and that the spoilage was seized upon by the respondent as an opportunity to effect such discharge under color of justification. On March 27, Charles Fred Werner, a machine-shop employee who was an active union member, was .also discharged, allegedly because there was no work available for him. The record discloses, however, that Werner too was discharged because of his union activity." . As we have stated above, on April 21, the negotiations for a con- tract between the respondent and the Union collapsed.27 The next day, Warren Edwin Thompson, who was a machine-shop employee, and who had that morning requested Hartmann, the shop-committee chairman, to call a meeting of the Union to take "direct action" against the respondent because of the break-down of negotiations, was discharged. Although the respondent claims that Thompson was discharged because there was no tool and die designing work, for which he had been hired, available, and that he was too highly paid to be used on production work, we are satisfied from the entire record that Thompson was discharged because of his militant attitude. We shall discuss subsequently the evidence upon which we reach "this conclusion.- On May 2 the respondent employed Clifford D. Mathewson and placed him in charge of production. Gustave Pfahl, who was an officer and member of the executive committee of the Union, and who was admittedly known to the respondent to be an active union member, testified that early in May, Mathewson reprimanded him 24 See Section III, I: , infra. m See Section III, B , infra. 26 See Section III, B, infra. 27 The Trial Examiner ruled that evidence offered by the respondent to show the cause of the break-down of negotiations, was immaterial . We assume for the purposes of our decision , therefore , that the collapse is not to be attributed to any action by the respondent. 28 See Section III, B , infra. AIR ASSOCIATES, iINCORPORATED 367 on the ground that Pfahl' was littering the floor of the shop with newspapers which- Pfahl had been distributing before the plant :opened, and then told him that the Union was "no good" and its officers "racketeers ... riding in big cars," that the employees were "suckers," that Mathewson was there "to change things around," and tliit "'if you fellows play ball with me . .. you will be better off." According to Pfahl, Mathewson also described the advantages of being "loyal" to the respondent, and indicated that a "loyal" em- ployee would "get along swell here and never have to worry about his future and his wife," whereas an active union man stood on "soap boxes" and "could not get any job." 29 Pfahl further testified that Mathewson went on to describe the advantages of a company union such as had existed at Ranger's, another company in the vicinity of the respondent's plant at which Mathewson had been employed prior to his employment by the respondent; that he suggested that Pfahl try to "swing-the boys around" and advise Mathewson of their reac- tion;.and that he further suggested that an employee by the name of Schwartz, who had recently been hired by the respondent as an inspector in the machine shop and who had worked under Mathew- son at. Ranger's, was a good man to start the new organization since he had been head of the company union at Ranger's. . George J. Pellegrino, another machine-shop employee, also testified to two conversations which he had with Mathewson in May. The first took place one Saturday afternoon at a time when Pellegrino and several other employees had consented to work overtime for straight time instead of time and a half as required by the Union.30 Pellegrino testified that Mathewson, after first asking if Pellegrino was a union man, stated that the men, in thus working overtime, were "getting wise to [themselves]" and that he would fire any of the other union men who bothered them, if any interference by the other. -union men were called to his attention. According to Pelle- grino; Mathewson advised himi in the second conversation, which occurred later, in May, that he had "better resign from the Union It is not going to get you anywhere." Mathewson admitted that he had a conversation with Pfahl in which he told Pfahl to refrain from distributing newspapers on company time or property, but denied that he said any of the other things to which Pfahl testified, and that he had any conversations with Pellegrino. Mathewson's testimony was contradictory and evasive, and we do not credit his denials. Thus, he denied on direct examination that he knew of a company union at Ranger's, but on a3 Pfahl testified that Mathewson, in describing the plight of the union man, asserted that Mathewson himself had been an organizer and had stood on soap boxes and been unable to secure employment until he bad changed his name. '0 It appears that permission to do so had been granted by the Union. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cross-examination admitted, with obvious reluctance, enough to show ,that there was in fact a company union there, and that he knew of its existence. Mathewson also testified that he thought that the paper which Pfahl was distributing was "The Daily Worker," 31 and that he did not know of any union activity at the respondent's plant at this time. However, he admitted that. Pfahl asked him why lie was opposed to the Union and' advised him that lie was "shop"chair- man." He further testified that immediately upon seeing the papers, he asked Fildstedt, a subforeman, about them, and then reported the matter to Hill, told Hill that "there was some kind of a union paper," 2 Under the circum- and asked him, "Ha.ve you got a union here?73% stances, we credit the testimony of Pfahl and Pellegrino, and find that Mathewson made the statements attributed to him. We have previously found that the conduct of the 'respondent im- mediately after it learned of the organization of the Union among the employees, was designed to persuade them to deal, with it with- out the presence of an outside, union representative, and Was an un- lawful interference with the employees' right of self-organization under the Act. It is clear from our description of subsequent events between February and May 1.938, and the statements and activities of Carrington, Hoffmann, and Mathewson, set forth above, that the respondent thereafter sought to frustrate the organizational activities of the Union by discrediting it and by discouraging membership of the employees therein, and to persuade its employees to choose a bar- gaining representative which would be acceptable to it. Thus, as we have stated, the employees were told that the Union was "no good" and its official's "ra'cketee a"; tft t:.the,.respond6ht would never r6eog- nize it; that the men would suffer financially because of, and secure no benefits from, their membership; and that they were. "suckers" and would be wise to resign from the Union. Thus, also, Rodolitz and Geoghegan were discharged in order to counteract the effect of the reinstatement of the shop conmlittee, and to create resentment against the Union, among the employees. The respondent showed also, by the discharges of Seifert, Werner, and Thompson, that, if necessary, it was prepared to make its antagonism to the Union effective by dismissing active or militant union members. Finally, it attempted to instigate a movement' among the 'employees'^to-form:- a new organization which would be satisfactory to it. X31 The newspaper was, in fact, "The Automobile Worker." a publication of the United Automobile Workers of America. as The evasive nature of Mathewson's testimony may also be judged from his assertions with respect to a conversation which he bad with Pfahl when the latter spoke to him about the necessity of Pfahl's testifying before the Board concerning the allegations of the complaint in these proceedings . Mathewson denied that he advised Pfahl not to "talk too much ," but asserted that he told him to "be a good listener and tell the truth." AIR ASSOCIATES, INCORPORATED 369 The respondent contended at the hearing, as we have stated, that shortly after the proposed contract was submitted on February 10, 1938, it took measures to assure compliance with the provisions of the Act. Hill testified that he instructed the supervisory employees not to interfere with, and to avoid all knowledge of, union activities in the plant, and, as a precaution against discrimination, revoked their _er, to Dire and fire. - Hill also testified,that, in order to avoid, as pog far as possible, any knowledge on his part of the union affiliation of his employees, he further instructed the supervisory employees not to report to him any union activities which might come to their knowl- edge, even if such activities occurred in the plant. Hoffmann, the foreman of the machine shop, testified in response to questions by the respondent's attorney, that Hill's instructions were `'not to interfere with that union business because he [Hill] would have everything in his hands"; and that he did not remember being instructed not to discuss union affairs with the employees. Hoff mann testified also that he had had power previously to employ and dis- charge,,,and corroborated Hill's testimony with regard to revocation of the-power. Nothing in Hoffmann's testimony indicates that any other instructions were given. Carrington testified that the instruc- tions were to "have nothing to do with any dealings with the union, and have nothing to say about the union, . . . and not talk about it"; and that "Hill would personally conduct all the hiring and firing." He also testified, however, that although the supervisory employees could make recommendations, none of them, including himself, had had final power to' hire or fire,33 even before the time the alleged in- structions were given, and that all hiring and discharging had ulti- mately to be approved by Hill. None of the other supervisory em- ployees testified concerning the alleged instructions. It is undisputed, also, that the supervisory employees, who, before the issuance of the alleged instructions, actually hired and gave notice of discharge to the employees, continued to do so. Shortly after February 15, 1938, a new form of application for em- ploylrleilt was devised and put into use by the respondent. This ap- plication form, which was used at least until the end of April 1938, required the applicant to state whether he was a member of any organization, and, if so, to give the name thereof. Hill testified that Henry Reisner, the general superintendent of production, drew up the form without his knowledge, that it was never discussed by them, and that Hill did not "really . . . seem to see [it] until quite a long time" after it was prepared." However, since, as we have previously Although Carrington s testimony concerned specifically only the power of the super visory employees to hire, the recoad leaves no doubt that be was also referring to the power, of the . supervisory. employees to discharge. s+Reisner, who, at the,.time of the hearing, was no longer employed by the respondent, was not called as a witness. 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pointed out, the ultimate power of hiring was exclusively reserved -to- Hill, the form must have come to his attention. We are satisfied and find that Hill had knowledge of its use. Moreover, no written memorandum of instructions was issued until September 12, 1938,35 which was after the issuance of the. original. complaint in the present proceedings, although many changes in personnel among the supervisory employees were made during this period; and, as we have stated, the instructions, if given orally in February, were violated to Hill's knowledge by Carrington almost immediately after their issuance, and by Mathewson subsequently, in reporting that Pfahl had been distributing union papers. Further- more, no notice, by posting or otherwise, that instructions against in- terference in the employees' organizational activities had been issued to the supervisory employees, was ever given to the non-supervisory employees, and no investigation was ever made to determine to what extent the alleged instructions were being observed. It is apparent that the evidence offered by the respondent with respect to the alleged instructions is contradictory and unconvincing- We do not believe that the new application form to which we 'have referred would have been in use for at least 2 months, if the respond-. ent had instructed its supervisory employees that it desired no in- formation concerning the union affiliation or activities of its employees,36 and had ordered them to avoid such knowledge them- selves. Moreover, we do not believe that, if such instructions had in fact been given, they would have been repeatedly disobeyed by, the respondent's supervisory . employees in the manner above described. Under all the circumstances, and in the light of the entire record,' we are 'convinced and find that no instructions such as Hill claimed to have issued, were in fact given to the supervisory employees.87 35 This memorandum , which was specifically addressed to Carl Holm, a new general superintendent who was hired at this time , states : It is also the policy of the Company to avoid in so far as possible knowledgeon the part of any of its managerial employees of the private affairs of any other em- ployees. The Company and its managerial employees are not to interfere in any way with any organization activity carried on by any union or other organization so long as such activities do not Interfere with the conduct of the business of the Company. No consideration Is to be given in making any recommendations as to employment or tenure of employment , to membership or nonmembership in any union or other organization. If you have any personal feelings either for or against labor unions , please do not express your opinions to any other employees of the Company. It is clear that the memorandum does not enjoin supervisory employees against reporting union activity in the plant to Hill. 36 It is well settled that the union affiliation of employees is not a proper concern of an employer , and such information should not be requested either orally, or on cards or other forms which employees are required to fill out . See Matter of Foote Brothers Gear and Machine Corporation and United office and Professional Workers of America, No. 24, et M1., 14 N. L. R. B. 1043. a' Moreover, such instructions , if issued, would afford the respondent no immunity from responsibility for the acts of its supervisory empl'o'ees. We have frequently stated, that AIR ASSOCIATES, 7INCORPORATLD 371 We find that the respondent, by the foregoing statements and con- duct, has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. B. The discharges In Section III, A, above, we have -referred to, and briefly con- sidered, the discharges of Ted Rodolitz, Joseph Geoghegan, Joseph J. Seifert, Charles Fred Werner, and Warren Edwin Thompson. We shall now discuss in greater detail the circumstances surrounding the dismissal of each of these employees, and the considerations upon which is based our conclusion that they were discharged in violation of Section 8 (3) of the Act. Ted Rodolitz and Joseph Geoghegan. Rodolitz, who, as we have previously stated, was discharged on March 15, 1938, had been in the respondent's employ since January 29, 1938. Prior to his employ- ment by the respondent, he was employed at the Brooklyn, New York, office of the Nicholas-Beazley Airplane Co., Inc. Late in December 1937`that company was merged 38 with the respondent and thereafter three of its six employees were given jobs by Hill. Among these three were Clarence Reid, who had been Rodolitz's superior at Beaz- ley's, and Rodolitz.30 Reid, who became assistant general manager of the respondent's plant, and Hill testified that after the merger the respondent decided not to hire Rodolitz as a regular employee because lie was lazy and incompetent; that at Reid's suggestion it subse- quently employed him on a temporary basis to arrange the Beazley stock which he had packed previous to its shipment to the respondent, and with which he was consequently familiar; that he was specifically- informed that his job was temporary; and that his work on the Beaz- ley stock was finished on March 15 and his employment thereupon terminated, because there was no other work available for him. There is no evidence that any complaints concerning Rodolitz's- work had been made during the entire period of his employment at Beazley's which continued from September 1936 until the merger in the acts of supervisory employees are those of the employer unless effectively disavowed. Matter of Consolidated Cigar Corporation and Cigar Makers' International Union of- America, Local No. 85,47 N. L. R. B . 217; Matter of lVickw'ire Brothers and Anialga- unated Assn. of. Iron, Steel d Tin Workers of North America, Lodge #1985, Through S. 1V.. O. C., Affiliated with the C. I. 0., 16 N. L. R. B. 316; Matter of Jefferson. Lake Oil Com- pany, Incorporated and Sulphur Workers Local Union No. 21195, 16 N. L. It. B. 355,. and cases therein cited ( footnote 22). In the present case, though, as we have found. the respondent was placed upon notice of acts violative of the alleged instructions, it made no attempt to disavow such acts. ae It is not clear from the record whether the acquisition of the Beazley Company by the respondent was by merger, purchase , consolidation , or other means . However, the acquisi- tion will be referred to hereinafter for convenience as a merger. 89 The other. Beazley employee who was hired by Hill was a salesman ; he was employed at approximately the same time as Rodolitz. The remaining three Beazley employees were- office and clerical workers. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD December 1937,10 and it is undisputed that he had received a wage increase in October 1937 from $52.50 to $65.00 a month.; that he had been a loyal and willing employee; 41 and that upon the termination of his employment after the merger lie had received an extra week's pay and a highly laudatory letter of reference from Howard Beazley, the president of the Beazley Company.42 Upon his employment by the respondent, Rodolitz's pay was increased to $70.00 a mouth;, and he also never received any complaints regarding his }vork there.'4 It is also undisputed that Rodolitz was assigned to selection and other work in addition to the work involved in sorting and arranging the Beazley stock, and that selection work requires a higher degree of skill and is more important than most of the other work in the stock and shipping department. Rodolitz had done similar work at the Beazley plant, and had also received and checked incoming shipments, and engaged in stock work, counter work, packing, clerical work, and retail selling. We are satisfied and find that Rodolitz was not, and was not believed by the respondent to be, either lazy or incompetent, and that, on the contrary, he was a competent and valuable worker who had been used, and was capable of being used, for a wide variety of jobs. The claim that Rodolitz was ]sired as a temporary employee falls with the claim that he was lazy and incompetent, since these qualities are stated by the respondent to be the reasons for its alleged refusal to employ him on a regular, as distinguished from a temporary, basis. Moreover, assuming that Rodolitz was in fact hired as a temporary employee to work on the Beazley stock, it is clear that the completion of that work does not account for his discharge. The respondent's claim that upon the completion of the work on the Beazley stock there was no other work which Rodolitz was qualified to do, is un- supported by the record. As we have stated above, it is undisputed that Rodolitz, during the time he worked on the Beazley stock, was 40 Indeed, Beazley, who became a director of the respondent after the merger, and was called as a witness by the Board to identify a letter of reference hereinafter referred to, testified that he did not recall receiving any "bad reports" concerning Rodolitz. Al Rodolitz testified that he had worked, without extra pay, on two Saturdays when he was to have been off, because the plant was busy, and that Reid had given him several technical books on aviation as a reward for doing so. Rodolitz also testified that toward the end of his employment at Beazley's, he had had an opportunity to secure another job, that he had discussed the matter with Reid, and that he had remained in the Beazley employ because he was needed there and because he considered that he had a "chance of getting in with" the respondent. Reid did not deny Rodolitz's testimony concerning these matters. 12 Beazley testified that such a letter was not given as a mere formality and had been refused other employees on the ground that they had conducted themselves in such a manner as not to justify recommendation. u In this regard, Reid testified that lie had received complaints from Carrington con- cerning Rodolitz "several times a week" commencing with the first week of Rodolitz's employment ; however, it is undisputed that neither Reid nor Carrington advised Rodolitz at any time that his work was unsatisfactory. AIR ASSOCIATES3, INCORPORATED 373 assigned to other work as well; 44 and the record shows that the re- .spondent's business required employees who could do work such as Rodolitz was capable of,.and had been doing,'and that such' work was 'available'at the time that Rodolitz was discharged, and for a consid- erable time thereafter. On March 16, the day after Rodolitz's discharge, -Robert Albertson was hired' to inspect incoming goods, particularly a shipment -of .bolts which was received at this time, store merchandise, and do "anything else" required in that connection.45 It is apparent that this work is in some respects almost exactly the same type of work which Rodolitz had been doing in connection with the Beazley stock; in any case, it is work which Rodolitz was qualified to do. - On March ;31, Donald Hartmann was hired as a regular helper in the storeroom, and L. Harris as a temporary helper in - the stock and shipping department, to do miscellaneous work and "pitch in" wherever needed. In April, C. Halper was transferred from the Marshall, Missouri, office to Roosevelt Field and also assigned to do work similar to that which Rodolitz had done.41 Moreover, the respondent conceded at the hearing that, rather than lay off employees, it was its practice to transfer them from one type of work to another. , This was particularly feasible in the stock and shipping department where ..the work obviously was less skilled and specialized than -in the -machine shop. The case of Geoghegan, who had been iii-the respondent's employ since November 16, 1937, and who was also discharged, as we have previously stated, on March 15, 1938, is in many respects similar to that of Rodolitz. As in the case of Rodolitz, the respondent con- tends that Geoghegan was discharged because there was no further work available at the plant which he was competent to do; and that an additional factor in his discharge, although not its- immediate cause,.was his inefficiency.. - . . " Indeed , Rodolitz testified that he completed his duties in connection with the Beazley stock in approximately 2 weeks , that he was then assigned to work on a foreign "shipment for a week and a half, and that thereafter , until the time of his discharge , he worked in .the selection department continuously. The respondent claimed, as we have stated,•that Rodolitz's work on the Beazley stock was completed on March 15 and that Rodolitz's other work was done by him only Incidentally to his Beazley work and during short intervals when, because of the cold in the hangar in which the Beazley stock was stored, Rodolitz came to a heated hangar to warm himself . We are not impressed with this contention since it is improbable that work which was important and demanded skill and care, such as selection work required , -would be assigned to an employee allegedly hired despite his incompetence. 45 The respondent asserts that Albertson was *hired on a temporary basis only ;he was in fact discharged 3 months later. However, whether he was hired as a temporary or regular employee is obviously immaterial ; indeed , if the respondent's contention is true, Rodolitz, himself a temporary employee, was immediately replaced with another temporary employee. 9e Rodolitz and Albertson received $70.00 . per month ; Hartmann and Harris $ 65.00 per month , and Halper $ 19.50 per week. The respondent does not contend, however, that Rodolitz was discharged because other men were available who would do similar work for less pay. 283031-41-vol. 20--25 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record discloses that Geoghegan. was a clumsy and awkward worker.47 However, it further appears that in the middle of Febru- ary Geoghegan was assigned to the general export department where his duties consisted principally of heavy lugging and moving work; that he continued to do such work until the time of his discharge; and that he was regarded as competent for such duties.48 Moreover, we do not believe that Geoghegan would have been retained in the respondent's employ for approximately 4 months if he was hope- lessly incompetent. We are satisfied and find that 'Geoghegan' was capable of doing heavy lugging and moving work. Carrington admitted that the respondent received steel shipments every week. and that these shipments required heavy ' lugging of the ;type which Geoghegan had been engaged in doing. It also appears that Donald Hartmann, who, as we have previously stated, was hired on March 31, was assigned to do precisely the heavy work which we .have found Geoghegan qualified to do.49 Indeed, there is no evidence that' Geoghegan was not able to do the work for which Albertson, whom we have also previously mentioned, was allegedly hired.-0'' ' We have already referred to the employment, or transfer to the stock and shipping department, of other employees; although it does not -appear that Geoghegan was regarded by the respondent as competent to do all the work which these other employees were engaged to do, it is clear that the stock and shipping department was busy-, More- over, as we have already indicated, it was a regular practice to trans- fer employees from one type of work to another, rather than lay them off. Under all the circumstances, we are convinced that work -was available which Geoghegan was qualified to do, and that • his 'discharge, accordingly, was not caused by the lack.of such..work:5' Having thus ' concluded that the reasons which the respondent offered for . the discharges of Rodolitz and 'Geoghegan lack . merit when examined in the light of the evidence, .we turn, to 'a consideration of the evidence of another basis for the discharges. We have previously found that Rodolitz. and Geoghegan were told by Carring- 47 The respondent introduced evidence of three specific ] instances of such clumsiness. Two of these incidents occurred at least 2 months, and the other approxiinatelye "1,iiidntb, before Geoghegan's discharge. • 4$ Indeed , Hill testified that Geoghegan's discharge Was 'redommend'ed. to him in. about the middle of February , but that Geoghegan was not discharged at that time -because it was desired to keep him if anything could be found for him to do. and "there was some work [available] he could do." It is clear that Hill must have : had in mind the heavy work to which Geoghegan was then assigned. ^Carrington testified that Donald Haitinann devoted' approximately-70 - per cent of his time to lugging, and the balance of his time to moving cases. - w As previously appears, Albertson was hired on March 16 to.receive and store incoming -goods ,' particularly a shipment of bolts which was received at this time , and to do anything else required in that ' connection. 51 Geoghegan ' s wage was $ 75 per month . However ,'• as in the case of Rodolitz, the respondent does not-contend that his wage was a factor in the decision to discharge him. AIR ASSOCIATES, (INCORPORATED 375 ton, at-the time' of their discharges, that the Union had "messed things up," that the men were foolish to join the Union or go ahead with it, and that their loss of employment was due to the Union's successful activity in behalf of the shop committeemen, who were reinstated at this time. Moreover, Sylvester Small, who, as has been stated, had been hired and assigned to stock work on February 26 when the two members of the shop committee from the stock and shipping department were discharged, was retained in the respond- ent's employ, in spite of the fact that. he was not regarded by his foreman as competent and that his discharge had been recommended soon after his employment. It was a matter of common knowledge in the plant that substantially all of the employees in the stock and shipping department and machine shop were union members.52 We are satisfied and find that Rodolitz and Geoghegan were discharged in order to counteract the effect of the reinstatement of the shop committeemen, to create resentment against the Union among the respondent's employees, and thereby to discourage membership in the Union. The respondent contends that it had no knowledge of the union membership of Rodolitz and Geoghegan, and that, therefore, the allegation that these employees were discriminatorily discharged must fall. However, the prohibition of the Act extends to any dis-. charge which is intended, or has as its purpose and effect, to dis- courage membership in 'a labor organization; a discharge for that purpose having been found, knowledge by the respondent of the union membership of the employee for that reason discharged be- comes immaterial .13 We find that the respondent, by discharging Rodolitz and Geoghegan, has discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the Union, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. As has been' stated, Rodolitz and Geoghegan earned $70 and $75 per month respectively at the time of their discharges. At the time ,of the hearing Rodolitz was employed at Hoey Air Service where .he had been employed since April 2, 1938, and where he received $10.00 per week. He testified that he desired reemployment by the respondent. At the time that Geoghegan first testified at the hearing, .on' September 28, 1938, he' was employed temporarily on a poultry "Thompson testified that before joining the Union on or about February 19, 1938, he told Hill that the Union was "practically solid" in the plant. Hill did not deny Thomp- son's testimony in this regard: • 53Cf. Matter of National Motor Bearing Company and International Union, United Automobile 'Worker8. "of America, -Local 'No: 76, 5 N•.'L. R. B. 409, enf'd as mod., National Labor' Relations Board v. National Motor Bearing Company, International Association of Machinists and Production : Workers Local 1518, affiliated with InternationaZ 'As8ociation'of Machinists v. National Labor Relations Board, 105 F. ( 2d) 652 (C. C. A. 9). 376 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD farm where he had been employed since August 1938 and where he received $5.00 per week and room and board for himself, his wife, and his child. However, on September 30, which was still during the course of the hearing, Geoghegan secured employment as a sales- man, and thereafter testified that his earnings exceeded those which he received during his employment by the respondent and that he did not wish to be reinstated.54 . Joseph J. Seifert. Seifert, who was discharged on March 17, 1938, had been employed by the respondent as a first-class milling-machine operator, for a period of approximately 7 months. He had .joined the Union in December 1937, being among the first of the respond- ents employees to do so, and had become a very active member. We have referred to the fact that Seifert was shop steward and a mem- ber of the shop committee; he was also active in the solicitation of new members and the distribution of union literature. We have also pointed out that the discharge of March 17 was Seifert's second discharge; that he, together with the other members of. the shop com- mittee, had first been.discharged approximately 21/2 weeks previously, because they had left the plant to' attend a meeting between union representatives and the attorney for the respondent after Hill had refused to' grant them permission to do so; and that the committee, -including Seifert, had been reinstated on March 16, after the Union 'had filed charges with the Board.55 During the morning of March 17, Seifert was assigned.by Hoff- mann and Fildstedt, the foreman and assistant foreman, respectively, of the machine shop, to a job ' which required him to drill holes in 30 'pieces of metal which were to be used as cylinder heads. This opera- tion was part of a large rush order which was then nearing comple- tion. A hole 27/64 inch in diameter and another hole 21/64 inch in diameter were to be drilled in each of the,'30 pieces.56 In 20 of the pieces, these holes were to be drilled in loca- tions indicated on a drawing to which we shall hereinafter refer as the master drawing, and which showed all distances, dimensions, and other particulars for the entire cylinder head. In the other 10 pieces, these holes were to be drilled in locations shown on a drawing to which we shall hereinafter refer as the detail drawing, and which 64 During the oral argument before the Board, the attorney for the Union stated that Geoghegan had subsequently lost his job as salesman and now wished reinstatement by the respondent. However, no steps were taken to include such matter in the record and such facts accordingly are not in the record as made, and upon 'which our findings and order herein must rest. 55 As we have stated previously , these charges were dismissed by the Board upon the reinstatement of the Committeemen. 66 It is not clear from the record whether Seifert was assigned to drill 2v/64 Inch holes In only 20, and 21,64 Inch holes in only 10, cylinder heads, or whether he was to drill holes of both sizes in each of the 30 pieces , as required by the specifications for the job, which are in evidence.. . ' ' •'. AIR. ASSOCIATE'S, ;INCORPORATED 377, was intended to indicate only.. the locations required for the holes in these 10 pieces, but no other data. Thus, the detail drawing bore two notations, one indicating, "location of 1/4 pipe tap and 1/2 drill," and the other indicating "location of 1/8 pipe tap and 1/8 drill," and, in its lower left corner, the statement : "For all-other informa- Lion see Dr. No. •H. C.-606 [the master drawing] from which it differs only with regard to locations of tapped holes and their passages." • After Seifert had drilled 1 hole in each of 20 pieces, it -was dis- covered by Fildstedt that Seifert had used a 1/2 inch drill instead of a 27/64 inch drill, and that the holes were, consequently, too large. It also appears that the holes were drilled in the location shown on the detail drawing whereas the hole was to be located in that posi- tion in only 10 pieces. Immediately after discovering the spoilage, Fildstedt reported the matter to Hoffmann, who, in turn, notified the office. The value of the spoiled cylinder heads was approximately $60; their spoilage, although it resulted in a delay of at least 4 or. 5 days in the completion of the job, did not cause the respondent to lose the order.57 .. Hill testified that when the spoilage was called to his attention, he staggered, wrung his hands and tore his hair, and cried, "My God, what are we going to do?" He immediately summoned to his office not only Seifert, Fildstedt, and Hoffmann, but Reisner, the production man- ager, as well, and after he-had examined both drawings, asked Seifert how the mistake had occurred. Seifert explained that he had been given only the detail drawing, that he had not seen the master draw= ing, and that he understood the dimensions of the holes which he drilled to be indicated by the notation "1/2 drill" to which we have referred. Hill then replied that it looked like "sabotage," 58 but that Seifert's explanation "could account for it," and that he would give Seifert the benefit of the doubt and call it "a mistake." However, he stated, it was the kind of mistake "we can't stand for around here.". Hill, nevertheless, did not discharge Seifert immediately, but tele- phoned Walter Chalaire, the respondent's attorney, who advised against any action until Hill had received further word from Chalaire,59 who would communicate with the Union's attorney. Hill 57 Hill testified that metal required to replace the spoiled pieces was received 4 or 5 days later, and that it was then necessary to do other work on the raw material before it was possible to do the drilling job which Seifert had started . The record does not reveal how much time was required to do this preliminary work. Some of the pieces were subse- quently used for samples, and others for scrap. 68 At the hearing Hill did not explain why he suspected sabotage and the record does not disclose what reasons , if any, there were for Hill to believe that the spoilage was deliberate. sa At the bearing Hill asserted that he also told Chalaire that he suspected that Seifert had spoiled the job deliberately and that Hill was about to discharge him; that Chalaire said,, "My -God ! Wait a minute. Don't do that now: Just hold everything" ;.and that-Hill replied, "This is a serious occurrence .. and, it is going to cause a tremendous loss."! 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Chalaire also agreed to propose to. the Union that iff_the Union would compensate the respondent for the $60 loss occasioned by the spoilage, Seifert's retention in the respondent's employ would be arranged.60 Chalaire then communicated with Abner J. Rubien, the attorney who was then representing the Union in its negotiations for a contract with the respondent, advised Rubien of the spoilage and that Seifert was about to be discharged, and made the proposal to which we have referred. Rubien stated that he knew of no prece- dent for such compensation by the Union but that if the discharge were really caused by any misconduct on Seifert's part, the Union would not object to his dismissal. Rubien also stated that he would communicate with representatives of the Union and advise Chalaire of their reaction. After approximately 1 hour, during which Rubien attempted without success to reach a union official and Seifert waited at the plant although the other employees had gone home, Chalaire again called Rubien, who then advised him of his failure to reach a union representative and suggested that Hill discuss the matter with the shop committee. Chalaire thereupon telephoned Hill and informed him of the result of his conversations with Rubien. As we have indicated, the other employees, including the committeemen, had already left the plant; Hill, however, discharged Seifert imme- diately after his conversation with Chalaire. The testimony with respect to the responsibility for the spoilage is highly contradictory. In the light of all the evidence, however, it appears that Seifert was at least partly responsible for the mistake in that he proceeded to set up the job without reference to the master drawing which was available to him, and that Fildstedt, and per- haps Hoffmann, were also negligent in failing to discover the mistake before Seifert had drilled all 20 pieces. It is unnecessary, however, here to fix culpability for the spoilage, and we make no finding in that regard, since we are of the opinion, for the reasons hereinafter set forth, that irrespective of whether or not Seifert was at fault, it was not his alleged mistake, but his activities on behalf of the Union, which constituted the operative cause of his discharge. It is undisputed that Seifert, who had had .4 years of experience, was a skilled and competent machinist, that he had never made a mistake during the 7 months of his employment by the respondent previous to the spoilage in question, that he had been praised for his ability and energy on at least 2 occasions, and that he was among the most highly paid mechanics in the respondent's employ. Moreover, it is clear from the fact that the respondent made the offer to retain Seifert if the Union would reimburse it for the loss occasioned by ° Hill testified that he did not recall whether he or Chalaire first made the suggestion, but that.he remembered discussing it with Chalaire immediately after the spoilage. AIR ASSOCIATES, INCORPORATED 379 the spoilage,. that the spoilage of the job was not regarded as es- tablishing Seifert's disqualification for further employment.61 The record also discloses that the respondent was seeking to ac- quire competent mechanics, that "really skilled" workers were diffi- cult to find, and that machine-shop employees were being constantly discha>ged for general incompetence after short trial periods of employment. Moreover, it was, apparently, not the respondent's practice to discharge employees for similar spoilage of work. In January or February 1938, 25 hydraulic pump bodies had been spoiled, necessitating the redesigning of rack gear shafts, and causing a loss which Hill testified might have been as high as $75. However, this spoilage was not even called to Hill's attention at the time of its occurrence, and was discovered by him several months thereafter, when he saw a new design being made for the part. Similarly, sev- eral weeks before Seifert's discharge it was necessary to reheat-treat a substantial number of pieces of a job` of 700 connector shafts be- cause their hardness was not according to specification; and in May 1,93812 a "particularly" large lot of bolts was spoiled on an automatic screw machine. In. none of these cases was the employee involved discharged or otherwise disciplined; and the respondent offered no evidence that any employee was ever discharged in any other instance for a single mistake such as that which Seifert is alleged to have committed. Nor is there evidence that the respondent's policy in this regard had undergone a change at the time of Seifert's discharge. It is clear from what we have previously said that the respondent's offer 'to retain Seifert upon reimbursement for its loss, had not been definitely rejected by the Union or its attorney. We cannot believe that Seifert would have been discharged at once, without a further opportunity to the Union's attorney to discuss with union representa- tives acceptance or rejection of the offer, if the respondent's offer had been sincere. Nor do we believe that the respondent would have immediately discharged Seifert without first discussing the matter with the shop committeemen as was suggested.C3 On the contrary, the haste with which Hill discharged Seifert indicates that the respondent was eager to take advantage of the occurrence as an excuse to rid itself of Seifert, but was anxious to create an appearance of justification for the discharge. 61 Clearly the respondent's offer to retain Seifert upon reimbursement for the damage belies any belief by the respondent that he had engaged in sabotage. 62 Hill testified that the incident occurred in May or June . However, since he also test]- fled that he discussed the matter with Hoffmann who was discharged on May 14, it is apparent that it occurred before that date. 63 Hill testified that he spoke to Hartmann the next day and that Hartmann stated that Seifert "should have been fired. He must have been nuts ." Hartmann , who had resigned as shop chairman and vice president of the Union prior to the hearing , testified as a witness for the respondent but was not questioned with regard to this alleged conversation. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the light of the foregoing, and of the entire record, we. are' satisfied and find that Seifert's discharge is to be explained only by his union membership and activities. We further find that the re- spondent has thereby discriminated in regard to the hire and tenure of his employment and discouraged membership in the Union, and has thereby interfered with, restrained, and coerced its employees inl the exercise of the rights guaranteed by Section 7 of the Act. At. the time of his discharge, Seifert received 90 cents per: hour and .worked a 40-hour week and occasional overtime. At the time. of the hearing, he was, and had been since May 26, 1938, also working, 40 hours per week in a capacity similar to his employment by the respondent, but was receiving 75 cents per hour. It also appears that his home is 30 miles from his present place of employment and 9 miles from the respondent's plant, and that he desires to be reinstated in the respondent's employ. Charles Fred Werner. Werner, who had been, in the respondent's employ since July 27, 1937, was discharged on March 27, 1938. On. April 4, 1938,. he returned to the plant and applied unsuccessfully for reinstatement. However, at the conclusion of the conversation which he then had with Hill, he was given a letter of reference in, which his services were described as having been satisfactory, and he was stated to be "approved for reemployment." The complaint alleged that Werner :was dismissed and refused reemployment because of his union activities. The respondent, in its answer, denied these allegations and at the hearing asserted that Werner's union membership or activities were unknown to it-tat-the' time of his dismissal, that the volume of work in the machine shop declined rapidly after February 1938, and that the sole reason for Werner's discharge and his failure thereafter to secure reemploy-, ment from the respondent was a consequent lack of, available work.64 However, Hill testified that the respondent had raised additional capital in the spring of 1937, and the respondent in its brief con- cedes that it was "a new and growing business." Moreover, -Hoff- mann, who, as we have stated, was the foreman of the machine, shop, and who testified as a witness for the respondent, asserted that the machine shop was "very busy" with production work up to 64 At the hearing, the respondent also asserted that Werner was slow ; however , Hill testi- fied that this alleged slowness had no connection with his discharge , and that there was no work available for Werner at any speed. As a matter of fact, we are convinced that. Werner was not a slow worker. Hoffmann testified that he requested Werner to "speed up" two or three times, and that Werner was a "little slow, especially .. . in the latter part of his employment" ; however. when he was questioned further about these occasions he invariably stated that -he could not remember . Fildstedt testified only that Werner was "a little slow on [one ] job." Werner testified that Hoffmann never spoke to him about the time required for any job, and that although Fildstedt discussed with him the delay - in<two jobs, Werner was not accused of responsibility for it. We credit Werner's testimony under the circumstances. AIR ASSOCIATES, INCORPORATED 381 the time of his discharge in May 1938; and indeed, the job of shop inspector was created in March and certain of Hoffmann's duties then assigned to the inspector. Werner. also testified that the shop seemed to be busy, and that there was plenty of work for him when he was discharged. At the time of his dismissal, he was actually engaged in making an oversized mandrel which he was not given an opportunity to finish.eb It also appears that employees were assigned to overtime work, at least until May, and that in spite of the alleged lack of work, the - respondent continued to send out orders for manufacture in other plants.86 - Assuming, however, that on March 27, the respondent's volume of work was small, we believe that that consideration in any event did not motivate Werner's dismissal. Hill, himself, testified that it was ,the respondent's practice at this time "to keep people steadily em- ployed even though there was not very much work for them to do. Our machine shop operation was such a small part of our business that it did not affect operations very much to have a few people [more] or less standing around and doing unnecessary work, unim- portant-work, in order to keep them steadily employed." Hill also admitted that, pursuant to this policy, it was his practice to transfer men to work other than that to which they were regularly assigned. In view of Werner's competence and conceded versatility, to which we shall now refer, this would have been a particularly easy matter in his case. We have already referred in our discussion of Seifert's discharge to the. difficulty which the respondent was experiencing in acquiring .competent machinists ; in furtherance of its search for such employees, the respondent employed at various times 22 new machine-shop em- •ployees in the period from March 15, 1938, to the date of the hearing. Werner was both experienced and of proved ability; indeed, he was the most valuable of the three all-round machinists then in the :respondent's. employ. Thus, he worked at various times on the mill- ing machine, drill . press, turret • lathe, and grinder, and was also capable of operating other types of machines ; he also did assembly ,and maintenance work,' and could make tools, jigs, and fixtures. He was a particularly desirable employee because he had some knowl- edge of heat-treating. steel, a process in which the respondent's busi- as The respondent contends that mandrels could be bought in the open market for less than it cost the respondent to manufacture them at its plant, and that the fact that Werner was engaged In such work indicates, indeed, that its business was slack. It appears, however, that Werner made mandrels throughout the period of his employment whenever required to do so, and that such work was done during short intervals between jobs, or at the same time that another job was being done. Under the circumstances, we do not regard the fact that mandrels could be bought for less in the market as of any significance. 66 It was the respondent's practice to send out work to other plants when, because of lack of available equipment, the delivery requirements of the job, or for some other reason, the respondent could not handle such work at its own plant. 382 DECISIONS OF ^ NATIONAL LABOR • RELATIONS BOARD ness did not require the full time of a specialist. Werner's value is further indicated by the fact that although he had less 'seniority than the two other all-round machinists, they received 65 cents and 80 cents an hour respectively, and he received 85 cents an hour. However, although many opportunities to rehire Werner presented themselves to the respondent, it did not do so, and sought instead to secure new employees. On April 13, which was little more : than 1 week after Werner had applied for reemployment and been prom- ised it, the respondent hired two new men in the machine shop. According to a chart which Hill prepared, one of these employees, A. Schoen, was hired as a lathe operator at 65 cents per hour. How- ever, his time cards, which Hill produced at the hearing, show that he never operated a lathe in ' the whole period from April 13 to May' 7,67 and Hill testified that Schoen's pay was cut on June 20 to 45 cents per hour because it was apparent that he was not qualified as a machinst, "which we hired him for." On June 27, Schoen quit the respondent's employ. Hill admitted at the hearing that Werner could have done the work which Schoen did, but pointed to the fact that Schoen's wage rate was less than Werner's. But it is:also clear that Schoen was not even worth 65 cents an hour; the difference between his wage rate and Werner's therefore simply emphasizes the fact that Werner was worth the rate of pay which he was receiving, but is other- wise of no significance. A. Side, the other employee who was hired on April 13, is referred to on the chart as a machinist but was de- scribed by Hill at the hearing as' an assembly worker. His wage rate appears to have been 70 cents an hour ; however, he was dis- charged for incompetence on April 15, 3 days after he was hired. On April 18, M. Nestvogel was hired at 70 cents per hour, also, according to Hill, as an assembly worker. On June 14, the respond- ent hired R. Eckert at 70 cents per hour. ' It appears that Eckert is a heat treater, and, according to the chart, is so classified. How- ever, Hill admitted that he also does general machinist's work when he is not required for heat-treating work. It is clear from -the fore- going that the respondent urgently needed competent men to do work such as Werner was capable of doing. It is true that none of these employees receive as high a rate of pay as did Werner. However, it does not appear that any of them is capable of the variety of work of which Werner was capable and, indeed, in the case of Schoen and Side, at least, their incompetence is conceded; moreover, Werner was never given an opportunity to accept employment for a lower wage. Under the circumstances, we are convinced that. the explanation advanced by the respondent for Werner's discharge and the respond- ent's failure to recall him to employment is not supported by the °' Hill did not produce Schoen's time cards for any period after May 7. AIR ASS'OCIATE'S', I'NCORPORAT'ED 383 record., Wei next consider the respondent's contention that it did not know of Werner's union activities at the time of his discharge. Werner had joined the Union on December 28, 1937, at the solicita- tion of Seifert; thereafter he had regularly attended and actively participated in union meetings, solicited new members, distributed union literature in front of the respondent's premises, and worn his union button exposed on his apron in the shop. We cannot believe that these activities did not come to the respondent's attention. Moreover, Werner's union activities must have-been impressed upon the respondent by two incidents which occurred during the 2 weeks immediately preceding his discharge. On March 15 or 16, which, as we have stated, was the time the shop committee was reinstated and Geoghegan and Rodolitz dis= charged, Fildstedt entered the .washroom at the plant while Werner was there "talking unions" with two other employees. Werner tes- tified that after a short interval, Fildstedt remarked, "All you guys are crazy with the Union," and that when Werner responded to the statement with a query as to what was wrong with it, Fildstedt stated that it was "only a racket." At the hearing, when Fildstedt was asked by the respondent's attorney whether he had made'such statements, he twice stated that he did not remember, but finally denied making the remarks attributed to him. However, he did not deny that he entered the washroom at the time mentioned, or that he knew that Werner was talking about the Union on this occasion. We find that the incident occurred as described by Werner. Werner also testified that later in the same month, which would have been shortly before his discharge, while he was urging Emil Arendt,"' a fellow employee, to join the Union, Hoffmann unex- pectedly emerged from one of the booths in the washroom, gave Werner "a look," and walked away. Hoffmann, at first, testified that he did not remember overhearing such a conversation, and then stated unequivocally that he had not heard Werner solicit Arendt's union membership. However, he did not otherwise deny the incident to which Werner testified; and Arendt, who was still in the respond- ent's employ at the time of the hearing, was not called as a witness. Moreover, it appears that the washroom in question was approxi- mately 12 feet square, and the conversation between Werner and Arendt took place approximately 8 feet from the booth from which Hoffmann emerged. We are satisfied that Hoffmann heard Werner solicit Arendt's membership in the Union. ea According to the official transcript of the testimony, Werner testified that he had this conversation with Emil "Aaron." However, the record does not disclose any such named person in the respondent's employ. In view of the similarity of this name with that of Emil Arendt, which does appear among the respondent's employees, we find that the person to whom, according to the transcript, Werner thus refers, is in fact Arendt. 384 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD Approximately one-half hour before quitting time on March 27, Hoffmann came to Werner's bench with his pay envelope and ad- vised him that he "[had] to let [him] go." When Werner asked the cause of his dismissal, Hoffmann simply repeated, "Well, I just got to let you go, that is all"; and when Werner persisted, and asked whether it, was "on account of the Union," he was told, "No, there never will be any union in this place." Werner then packed his tools and left the plant. As we have stated above, he returned to the plant on April 4 and applied to Hill for reinstatement. Hill testified that Werner then stated to him that he knew of Hill's aver- sion to the Union, and that he assumed that his union activities were responsible for his discharge; and that Hill replied that Werner had been discharged because of lack of work, but would be recalled when business improved. This was not denied by Werner. Ac- cording to Werner, Hill also stated that the respondent was cutting down its overhead and that Hill could not attend to business because he was "taking too much time for the Union." Hill's version of this portion of his conversation with Werner differs from Werner's version in that,' according to Hill, Werner was told that Hill did not know whether Werner was a member of the Union or not,'but that it made no difference, and that the only thing that Hill did not like about the Union was the fact that it took up too much of Hill's time and was affecting business. It is clear, however, as we have previously indicated, that Werner was a valuable and competent employee, that the respondent needed men to do work such as Werner was capable of doing, and that it sought and was having difficulty in finding such employees. Under the circumstances, the discharge of Werner and the failure to recall him thereafter can be explained only as being motivated by a desire to rid itself of Werner because of his union activities. We find that the respondent has discriminated in regard to the hire and tenure of employment of Charles Fred Werner, thereby discouraging member- ship in the Union, and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. At the time of the hearing, Werner had been unemployed since his discharge by the respondent, with the exception of 3 days of em- ployment at Ranger's for which he had received approximately $20, .and other odd jobs for which he had received approximately $15. -He desires reinstatement by the respondent. Warren Edwin Thompson.' Thompson had been hired by Hill personally, on August 4, 1937, at a monthly salary of $200 rather than on an hourly basis. ' ' Although the immediate occasion for his employment was a large thimble die' designing job, after the comple- iibri of his .wort; in that regard, he had been assigned to other small AIR ASSOCIATES, INCORPORATED 385 tool-designing jobs, tool making, and straight production work in which he was principally engaged at the time of his discharge, on April 22, 1938. He had joined the Union at the solicitation of Seifert and Werner, among others, on or about February 19, 1938, which was after most of the other employees had already become members. Although he held no union office , he was a militant union member, attended all union meetings, solicited new members, and took an active . and aggressive , part in union activities. . As we have heretofore stated above,69 on, April 21 the negotiations for a contract between the respondent and the Union collapsed. Thompson testified that the following morning he approached Hart- mann, who, as shop chairman , was familiar with the situation, and asked him what had occurred at the meeting the previous day. Upon being informed that negotiations had ended, Thompson suggested that Hartmann call a meeting of the Union at once, and stated, "We have got to do something about this and we have got to take direct action." When Hartmann replied that there was nothing he could. do, Thompson insisted that Hartmann "better get busy and do some- thing." At -about 2 o'clock that afternoon , Hoffmann came to Thompson's bench where Thompson was engaged simultaneously on a bench and lathe job, and advised him that he had "orders from the office to let [him] go." When Thompson stated that he had been expecting it, Hoffmann made no reply , but "kind of smiled," and walked , away. Thompson prepared to leave at once, but was there- upon informed by Hoffmann that his discharge was effective, as of the close of the day. However, he received no explanation for his sudden dismissal. At the hearing, Hill testified that the thimble die job which had occasioned . Thompson's hiring was finished early in March, that no other tool-designing work was available , and that when no orders requiring such work came in after a reasonable interval, it was decided to dismiss Thompson who was too highly paid to be used for purely production work or ordinary tool ' making. Hill further maintained that he did not know of Thompson's union membership or activities , and that, accordingly , such membership or activities could not have been a factor in Thompson's discharge. Clearly the respondent's "explanation" for- the dismissal does not- in fact explain. In the first place, it does not account for the fact that Thompson, a salaried employee on a monthly basis, was discharged on approxi- mately 3 hours' notice , a week before the end of the pay-roll period, and while engaged in uncompleted work. ' Secondly, we are satisfied that the completion of the thimble die job and the lack of other such work had no connection with the discharge. 61 See Section III, A. 3$6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As we, have previously stated, the immediate occasion 'for Thomp- son's employment was the thimble die job to which Hill referred. However, it is undisputed that there was no understanding that his employment would terminate with the completion of. the dies. On the contrary, Hill conceded that Thompson, who not only had had 40 years of experience as a tool maker and designer but also was a machinist and draftsman, and had studied mechanical engineering, was regarded at the time of his employment, as a highly skilled crafts- man who would make a valuable permanent addition to the respond- ent's staff. Indeed, Hill testified that he considered making Thompson foreman of the machine shop, but subsequently changed his mind in that regard only because Thompson appeared at times to be opinion- ated and argumentative. Although there may have been a. temporary lull in tool-designing jobs, there was no lack of other work which Thompson could do. On the contrary, it is undisputed that the bench and lathe jobs, on which he was last engaged, were not completed at the time of his dismissal, and that both of these jobs required "quite some" additional work. Moreover, the record reveals that the thimble die job was in fact completed late in December or early in January, and thus, that Thompson was actually assigned to other jobs, tool and die making and designing, and production, during a period of at least 3 months.70 Nor does the record support the respondent's contention that Thomp- son was dismissed because he was regarded as too highly paid to -be used for such work as was available. Thompson's salary of $200 a month was not substantially higher than that of J. Phillips, a tool maker who received an hourly wage; and it is undisputed that Phillips was not as highly regarded as Thompson.71 Moreover, Reiter and Ernst, other ordinary tool makers, received 80 and 90 cents an hour re- spectively. Furthermore, since Thompson was employed on a monthly basis he did not receive extra pay for overtime. Moreover, in the light of the respondent's declared policy of retaining employees during slack periods if possible, its search for competent machinists, in fur- therance of which, as we have stated, it employed at various times 22 new machine-shop employees in the period from March 15 to the date of the hearing, and Thompson's admitted competence and skill, we do not believe that, if his wage was indeed a serious factor in his discharge, Thompson would not have been requested to take a wage cut. However, no such proposal was made to him, and Thompson con- 70 The testimony of Thompson , Hill, and Hoffmann was substantially In accord with respect to the nature of the various jobs to which Thompson was assigned . However, if Hill's statement, previously mentioned , that the die job was finished in March, were true, his further estimate of the time required by the other jobs which Thompson had completed before he was discharged would have kept Thompson engaged in such work until well in May. 71 Phillips was paid $199 .21 during January, $147.40 in February , during the latter part of which, the record shows, business was slack, $198 in March , and $180.40 in April. AIR ASSOCIATES, .rNCORPO'RATED 387 tinned in the respondent's employ at the $200 monthly wage for at least 3 months after the thimble die job was completed, without any complaint from Hill. This fact is particularly significant since Hill testified that he did suggest a reduction to Phillips to whom we have referred above, although the cut was never put into effect 72 In the light of the foregoing, we are convinced that the respondent's explana- tion for the discharge is merely an attempt to create an appearance of justification for the dismissal after the event. Nor do we credit the respondent's denial of knowledge of Thomp- son's union membership. and activities. Indeed, under the circum- stances of the case, his discharge can be accounted for. only in terms of these activities. We have previously described their nature and scope, and have there mentioned, among his other activities solicita- tion of new members. One of the employees repeatedly solicited by him was Phillips who persisted, however, in refusing to join the Union. It also appears that there was considerable bad feeling be- tween Thompson and Phillips, who apparently regarded Thompson as an obstacle to his succeeding in his. ambition to become a foreman. Hill admitted that on 3 occasions, Phillips had spoken to him about a promotion to a foremanship, and that Phillips had stated on these occasions that he felt he should be given such a position because, among other qualifications, he had refused to join the Union. When Hill was asked whether, on these occasions, 73 Phillips also volunteered any information about the union membership of other employees, Hill stated he was "about 95 per cent certain [Phillips] did. not." Thompson testified, however, that Phillips admitted to him that he had. spoken to Hill concerning Thompson's union activities; and Phillips, who was still in the respondent's employ at the time of the hearing, was not-called as'a witness. We conclude that Phillips in- formed Hill of Thompson's activities in behalf of the Union. It.also appears that when the shop committeemen were discharged late in February, Thompson hid' been openly sympathetic in the presence of Hoffmann'74 had told Seifert that Seifert would be "back again 79 Hill , who gave no reason at the hearing for the failure to put the reduction into effect, testified that when the matter was broached , Phillips was "very much opposed to it" and stated that he had just begun building a house and that he regarded a. wage cut as unfair. Hill further testified that Phillips also stated that "because of the company he stayed out of the union and this was the thanks he was getting for it." Hill asserted that he then told Phillips that it was the respondent's policy "not to take into considera- tion membership or nonmembership in the union" ; however, he withheld final decision on the matter of a reduction for the "time being. " Hill's testimony as to the time when this conversation occurred was extremely,vague but apparently it occurred before the middle of.July 1938. 73 At least one of these occasions occurred before Thompson 's discharge. 74 Hoffmann testified that he had "no recollection one way or another " whether Thompson said anything to him concerning Seifert's discharge. Although he stated that he "could not remember" whether Seifert spoke to Fildstedt or Werner after Seifert 's discharge, when asked whether he could say that Seifert did not talk to Thompson,, Hoffmann answered , "Maybe he did . . . 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before very long," and had stated; "I wish I was on the shop com- mittee, I could stand a vacation with pay myself." Seifert corrobo rated Thompson's testimony in this regard. Thompson also testified that he discussed Seifert's discharge with Fildstedt many times there- after, and again expressed sympathy for Seifert and a conviction that he would be reinstated. Fildstedt denied that such conversa- tions took place, but we do not credit his denial in view of the fact that we find Thompson to have been otherwise credible as a witness, and in view of the further fact that Thompson's testimony is. con- sistent with the other evidence in the case. We find that Thomp- son's union sympathies and activities were known to the respondent. As we have previously stated, Thompson had spoken to Hartmann on the morning of Thompson's discharge concerning the collapse of negotiations between the respondent and the Union the previous day, had suggested that Hartmann call a meeting of the Union to take "direct action," and had insisted that Hartmann "get busy and do something." Hartmann, as we have also stated, had replied that there was nothing he could do. Approximately a month thereafter, Hartmann resigned as shop chairman .7,1 At the hearing he gave as one of the reasons for his resignation his view, which he stated he had begun to entertain late in February, that the Union "was all for the employee and nothing for the employer. That is against my grain." After his resignation as shop chairman, he also ceased. to attend union meetings or otherwise to perform any of his duties as vice president of the Local ; and approximately 6 weeks before the hearing, he formally resigned this office. He testified as a witness for•the respondent, and in his testimony revealed a complete hostility to the Union. Moreover, it appears that he had never been particu- larly sympathetic to the Union and had joined not "just for idealistic purposes," but because he expected to get "a, good job .... with the Union," as a reward for his activities. In view of the foregoing, and all of the other'circumstances of the case,. and. in view of the absence of any other explanation for Thomp- son's sudden discharge, we may properly, and do, infer and find that Thompson's attitude, expressed in his conversation with Hartmann, came to the knowledge of the respondent, and was the immediate cause of his discharge. We further find that the respondent has thereby discriminated in regard to the hire and tenure of employment of Warren Edwin Thompson, thereby discouraging membership in the Union ; and that by said discharge, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. 75 Hartmann resigned from this office in May 1938. The day of his resignation does not appear. AIR ASSOCIATES, INCORPORATED 389 At the time of the hearing, Thompson was employed by Charles Seaman Company as manufacturing machinist. He received 80 cents per hour and worked approximately 50 hours per week. He has earned $487.60 since his discharge by the respondent and desires reinstatement. 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 re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights' guaranteed them in Section 7 of the Act. We shall order the respondent to cease and desist from such interference, restraint, and coercion. We have also found that the respondent discriminatorily terminated the em- ployment of Ted Rodolitz, Joseph Geoghegan, Joseph J. Seifert, Charles Fred, Werner, and Warren Edwin Thompson, thereby dis- couraging. membership in the Union. In order to ' effectuate , the purposes and policy of the Act, we shall order the respondent to offer all of said employees except Geoghegan immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and to. make them whole for, any loss of pay they have suffered by reason of the respondent's discriminatory termination of their employment as 'aforesaid, by payment to each of them of a sum.of money equal to 'that which he normally would have earned asl wages from 'the date of the illegal termination of his. employment to the date of the respondent's offer of reinstatement, less his net earnings 70 during such period. As we have previously stated, Geoghegan testified that he was employed at the time of the hearing, that-his earnings exceeded those . "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 discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill T17orkers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings , but as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over, to the appropriate fiscal agency of the Federal, State, county, municipal; or other government or governments which supplied the funds for said work-relief projects. 283031-41-vol. 20-20 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which he received during his employment by the respondent, and that he did not, desire reinstatement. 77 However, he is entitled to payment of a sum of money equal to that which he normally would have earned as wages from the date of the illegal termination of his employment to the time he secured his new employment.78 Accord- ingly, we shall order the respondent to make him whole for any loss of pay he has suffered by reason of the respondent's discriminatory termination of his employment by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of the illegal termination of his employment to the date on which he commenced to work in the employment in which he was engaged at the time of the hearing, less his net earnings 79 during said 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 No. 365, is a labor organization within the meaning of Section 2 (5) of the Act.$0 2. By discriminating in regard to the hire and tenure of employ- ment of Ted Rodolitz, Joseph Geoghegan, Joseph J. Seifert, Charles Fred Werner, and Warren Edwin Thompson, thereby dis- couraging membership in International Union United Automobile Workers of America, Local No. 365, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in 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. 4. The aforesaid labor practices are unfair labor practices affect- ing commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Air Associates, Incorporated, Garden City, New York, and its officers, agents, successors, and assigns shall: "77 See footnote 54, supra. 78 Matter of Skinner and Kennedy Stationery Company and St. Louis Printing Pressman's UUnion No. 6, Inc., et at., 13 N. L. R. B. 1186. 79 See footnote 76, supra. 80 See footnote 5, supra. AIR ASSOC'IATE'S, -I CORPO'RATED 391 1., Cease and desist from : (a) Discouraging membership in International Union United Automobile Workers of America, Local No. 365, or any other labor -organization of its employees, by discharging any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer to Ted Rodolitz, Joseph J. Seifert, Charles Fred Werner, and Warren Edwin Thompson, and each of them, immediate and full reinstatement to their former or to' substantially equivalent positions, without prejudice to their seniority and.other rights and privileges; and, make them whole for any. loss of pay they have suffered by reason .of the respondent's discrimination in regard to. their respective hire and tenure of employment, by payment to each of thein:of. a sum. of money equal to that which he normally would have earned as wages from the date of the illegal termination of his employment," to the date of the offer of reinstatement, less his net earnings during that period, deducting, however, from the amount otherwise due to each of said employees, monies, if any, received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects and pay over the amounts so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (b) Make whole Joseph Geoghegan for any loss of pay he has suffered by reason of the respondent's discrimination in regard to his hire and tenure of employment, by payment to him of a sum of money equal to that which he normally would have earned as wages from March 15, 1938, the date of the illegal termination of his employ- ment, to September 30, 1938, the date on which he commenced to work in the employment in which he was engaged at the time of the hearing, less his net earnings during said period, deducting, however, from the amount otherwise due him, monies, if any, received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amounts n As we have previously found, Ted Rodolitz was discriminatorily discharged on March 15, 1938; Joseph J. Seifert on March 17, 1938; Charles Fred Werner on March 27, 1938, and Warren Edwin Thompson on April 22, 1938. 392 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD so deducted, to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which sup- plied the funds for said work-relief projects; (c) Post immediately in conspicuous places throughout its plant, and keep posted for a period of at least sixty (60) consecutive days from the date of the first posting, notices stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) and (b) of this Order; and stating further that it will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; and further stating that the respondent's employees are free to become or remain members of International Union United Auto- mobile Workers of America, Local No. 365, or any other labor organi- zation, and that the respondent will not discriminate against any employee because of membership or activity in such organization; (d) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. Arm IT IS ' FURTHER ORDERED that the complaint, in so far as it alleges that the respondent engaged in unfair labor practices with respect to Walter Betts, be, and the same hereby is, dismissed with- out prejudice.