Ryan Car Co.

In the Matter of RYAN CAR COMPANY AND CHARLES M. BATES, TRUSTEE IN BANKRUPTCY, SUCCESSOR TO RYAN CAR COMPANY and FELIX MICHALOWSKT, FLOYD JORDAN, HOMER L. BURKE, GAIL EDWARDS, STEVE BROOKS, JOHN KABAT, THEODORE KABAT, JOHN FRAKES, JAMES BRIENZO, EDWIN MURPHY, AND JOHN F. BLACKFORD Case No. C-1028.-Decided March 5, 19,110 Freight Cars, Underfiamei, and Fabricated Freight-Car Parts Manufacturing Industry-Interference, Restraint, and Coercion.: anti-union statements; warning not to discuss unions-Employer: respondent in bankruptcy ; trustee in bank- ruptcy not operating business-Procedure: record reopened to make trustee in bankruptcy party to the proceeding where respondent filed petition in bankruptcy and trustee appointed after hearing while case pending before Board ; waiver of hearing by all parties, decision issued on record as made-Strike: involved- Discrimination: discharges because of participation in strike : employees regarded as participants in strike included in ; discharge of one employee because of coinci- dence of presence at time of his son's dismissal for having participated in strike ; discharges to discourage concerted action by employees; allegations of sustained as to eight employees and dismissed as to two employees-Back Pay: awarded to date of cessation of operation of respondent's business. Mr. Robert R. Rissman, for the Board. Mr. William M. Ryan, Jr., of Highland Park, Ill., for the re- spondent. Mr. David Findling, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a fourth amended charge duly filed by Felix Michalowski, Floyd Jordan, Homer L. Burke, Gail Edwards, Steve Brooks, John Kabat, Theodore Kabat, John Frakes, James Brienzo, Edwin Murphy, and John F. Blackford, by J. F. Blackford, authorized agent, herein called the employees, the National Labor Relations Board, herein called the Board, by the Regional Director for the Thirteenth Region (Chi- cago, Illinois) issued its complaint dated August 2, 1938, against The Ryan Car Company,' Chicago, Illinois, herein called the respondent, i Erroneously named as "Ryan Car Company " In the complaint, which was amended at the hearing. 21 N. L. R. B., No. 22. 139 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 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 com- plaint, accompanied by notice of hearing thereon, were duly served upon the respondent and J. F. Blackford. With respect to the unfair labor practices the complaint alleged in substance (1) that the respondent, on or about December 20, 1937, locked out and discharged certain named employees 2 and failed and refused to reinstate said employees, because they participated in a strike and otherwise engaged in concerted activities with other em- ployees for the purposes of collective bargaining and other mutual aid and protection; (2) that the respondent, from on or about December 15, 1937, down to and including the date of the filing of the complaint herein, advised and warned its employees to refrain from joining any labor organization, and threatened its employees with discharge if they joined any labor organization or participated in concerted activities in their own behalf ; 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 August 9, 1938, the respondent filed its answer to the complaint ad- mitting 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 Chicago, Illinois, on August 11 and 12, 1938, before Peter F. Ward, the Trial Examiner duly desig- nated by the Board. The Board, represented by counsel, and the respondent, represented by its authorized representative, 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 the allegations of the complaint as to James Brienzo who was alleged in the complaint to have been discriminated against, but who did not appear or testify at the hearing. The Trial Examiner also granted the motion of counsel for the Board to conform the pleadings to the proof. Dur- ing the course of the hearing, the Trial Examiner made various other rulings on other motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On September 8, 1938, the respondent filed a petition in bankruptcy under Section 77 (b) of the National Bankruptcy Act, and, on 2 1 e, all of the employee , named above , who filed the fourth amended charge. RYAN CAR COMPANY 141 October 12, 1938, Charles M. Bates was duly appointed trustee in bankruptcy in said proceedings.3 On October 19, 1938, the Trial Examiner issued his Intermediate Report, which was thereafter filed with the Board, and copies of which were duly served upon the respondent and the employees. In his Intermediate Report the Trial Examiner found that the respond- ent had engaged in and was engaging in unfair labor practices af- fecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act, and recommended that the respond- ent cease and desist from the aforesaid unfair labor practices, reinstate with back pay the employees found by him to have been discrimina- torily discharged,4 and take certain other affirmative action necessary to remedy the situation brought about by the unfair labor practices found. On November 19, 1938, Floyd Jordan, who the Trial Exam- iner found had not been discriminated against, filed exceptions to the Intermediate Report, which exceptions the Board has considered and, for the reasons stated below,5 finds to be without merit ; no exceptions were filed by the respondent. None of the parties requested permis- sion to file briefs or argue orally before the Board. On April 6, 1939, the Board, acting pursuant to Article II, Section 36, of National Labor Relations Board Rules and Regulations- Series 1, as amended, ordered that the record in the case be reopened for the purpose of making the trustee in bankruptcy a party to the proceeding, that a further hearing be held for this purpose.,and that the proceeding be remanded to the Regional Director for the Thir- teenth Region for the purpose of conducting such further hearing ; and authorized the Regional Director to accept a Supplement to the Fourth Amended Charge, to issue a Supplement to Complaint naming the trustee in bankruptcy a party to the proceeding, and to issue notice of such further hearing. Copies of said Order and Authoriza- tion were duly served upon the respondent and the employees. Pursuant to the foregoing Order and Authorization, a Supplement to the Fourth Amended Charge was thereafter filed with the Regional Director by the employees, by J. F. Blackford, duly authorized agent, and on April 24, 1939, the Board by the Regional Director, issued a Supplement to Complaint. Copies of the Supplement to Complaint, accompanied by notice of hearing thereon, were duly served upon the respondent, the trustee in bankruptcy, and J. F. Blackford. On April 25, 1939, the respondent; the trustee in bankruptcy, successor 8 These facts are embodied in a stipulation dated April 25, 1939 (see footnote 6, infra). The bankruptcy proceedings , which are entitled "In the Matter of Ryan Car Company, a corporation, Debtor, 69310 ," are pending before Honorable James H. Wilkerson , United States District Judge, in the United States District Court for the Northern District of Illinois , Eastern Division S I. e., all of the employees named in the complaint with the exception of James Brienzo and Floyd Jordan. 5 See Section II A, 2, infra. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Ryan Car Company ; the employees ; and the attorney for the Board stipulated and agreed 6 (1) that the trustee in bankruptcy was the successor to the respondent and was in possession of its assets, but was not operating the business theretofore operated by the re- spondent; and (2) that the respondent and the employees waived their right to further hearing and the trustee in bankruptcy his right to a hearing under Section 10 (c) of the Act. In accordance with the provisions of the stipulation, the stipulation, the order of the Board dated April 6, 1939, the Supplement to Complaint, the Supplement to the Fourth Amended Charge, notice of hearing, and National Labor Relations Board Rules and Regulations-Series 1, as amended, issued in the proceeding and served upon the parties, together with the affidavits of service thereof, were introduced in the record in the proceeding by filing with the Chief Trial Examiner in Washington, D. C., on May 25, 1939. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Ryan Car Company, an Illinois corporation, was, at the time .of the hearing, engaged in the manufacture and sale of freight cars, underframes, and fabricated freight-car parts. It maintained and operated a general office, a sales office, and a plant, all separately located, in Chicago, Illinois. This case concerns only the plant, which is located in a section of Chicago called Hegewisch, and at which the respondent employed, during normal operations, approximately 350 persons.' All of the respondent's business was done on contract and special order from its customers, principally railroads. During the period from July 1, 1937, to June 30, 1938, the respondent manufactured and shipped from its Hegewisch plant, 550 freight , cars valued at $1,990,000, 2,853 underframes valued at $1,450,000, and 2,100 tons of fabricated freight-car parts valued at $191,000. All of the freight cars and underframes, and approximately 85 per cent of the fabricated freight-car parts, were shipped to destinations in States other than the State of Illinois. During the same period, the respondent pur- chased for shipment to the Hegewisch plant, rolled steel which cost approximately $1,215,000, all of which was shipped from points within the State of Illinois ; castings costing $350,000, and-rivets costing $20,000,-al1 of which were shipped from points outside the State of Illinois ; paint costing $35,000, and miscellaneous parts and supplies 'The facts referied to in footnote 3, aapia, are iecited in this stipulation. 7 See also Section II A, 1, infra. RYAN CAR COMPANY 143 costing $200,000, approximately 50 per cent of which were shipped from points in States other than the State of Illinois; and welding rods costing $35,000, approximately 65 per cent of which were shipped from points in other States.8 II. THE UNFAIR LABOR PRACTICES A. Diserimination in regard to hire and tenure of employment 1. Background As has been stated, all of the respondent's business was done on special order or contract. With the exception of a small crew of experienced foremen and skilled laborers, the respondent did not maintain a regular staff of employees between jobs, its practice being to recruit the necessary labor after it had procured an order. Its practice also was to employ persons who resided in Hegewisch. Con- sequently, many Hegewisch residents had been in its employ at various times over a period of many years. In 1937 the respondent received a large order from the Illinois Central Railroad, in connection with which it employed substantially all of the Hegewisch residents available. Before the Illinois Central job was completed, the respondent secured an order from the Union Pacific Railroad for box cars and underframes. Unlike most of the respondent's work, this latter order was a welding job as distin- guished from a riveting job. In September and October 1937, the respondent hired a crew of approximately 200 employees to work on the Union Pacific order. The crew was divided into a day shift and a night shift. Of the approximately 100 employees on each shift, approximately 32 were welders, and the balance unskilled laborers." Ninety per cent of the men were not residents of Hegewisch and had never worked for the respondent previously io During the first weeks of their employment, while they were be- coming familiar with their duties, the welders and helpers were paid on a straight-time basis; thereafter, they were paid a piece-work rate. The respondent made it a practice to change this rate without prior notice or discussion with its employees, and had, prior to December 13, 1937, effected two or three pay reductions in this manner. There was considerable dissatisfaction among the em- fi The record does not indicate whether these percentages refer to the value or the mass of the finished products or raw materials g The respondent apparently classified welders' helpers , fitters, and ordinary laborers, as unskilled laborers io Most of the Hegewlscli residents were unskilled laborers , and few among those who. were skilled were welders 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees because of the practice."' On Monday, December 13, the em- ployees heard, through rumors and conversations, of a further reduc- tion of 10 cents in piece-work rates for welders and helpers. During their lunch hour that day, the day shift held an "indignation" meeting at the plant in protest against the reduction. On the night of December 15, after their meal-time recess from 10 to 10: 30, the night shift gathered in one section of the plant, and refused to return to work. William H. Hurt, who was the track foreman in charge of the Union Pacific job, and Jay G. Dinger, who was general fore- man and in charge of the Illinois Central job, inquired as to the "trouble," and were told that the stoppage had taken place in protest against the wage cut. Hurt and Dinger then sought to persuade the men to complete the night's work. The employees refused to do so, however, and demanded that Hurt and Dinger immediately call William M. Ryan, Jr., general superintendent of the respondent and son of its president. This was done, and Ryan came to the plant at midnight or shortly thereafter. After learning of the men's grievance, Ryan addressed the entire shift. He stated his lack of authority to grant a restoration of the pay cut, promised to consult other officials of the respondent regard- ing the matter the next day, and urged the men to resume work. This they again refused to do. Ryan then suggested that they appoint a committee to discuss the matter with him. John F. Black- ford, a welder, assumed the leadership of the men, addressed them, and took charge of the selection of a negotiating committee, which consisted of John Frakes and Theodore Kabat, who are named in the complaint herein, and three other employees on the night shift12 The committee met with Ryan, Hurt, and Dinger in the office of one of the foremen, and apparently were persuaded by Ryan to accept the reduction.13 However, when the committee reported the proposal to the men the latter rejected it. Ryan then telephoned his brother, J. D. Ryan, who was general manager of the respondent, and thereafter requested the committee to meet with him again. He then offered to restore 5 cents of the pay cut, a suggestion which the men also rejected. No further negotiations were attempted that night, and the night crew remained in the plant without working. Ryan and the foremen remained in one of the offices on the premises, ' On the occasion of one of the wage cuts in October. the day shift stopped work for 2 hours during which the reduction was discussed with Ryan. 12 None of the other employees named in the complaint was on the committee It ap- pears that at least one other committeeman never worked for the respondent after the strike. The record does not reveal whether he left voluntarily or was discharged. is None of the committeemen except Frakes and Kabat testified at the bearing . Frakes testified that the committee simply stated to Ryan that they would convey Ryan's pro- posal to the group. The committee apparently also discussed with Ryan the matter of a wage increase for the unskilled laborers. RYAN CAR COMPANY 145 and Hurt advised the men that they were permitted to use coke and salamanders belonging to the respondent to keep themselves warm. The day shift reported for work at about 7 o'clock that morning and, upon being informed of the strike, joined in the stoppage. A committee was then formed, consisting of representatives of both shifts, to discuss the situation with Ryan.'4 These negotiations re- sulting in no agreement, Ryan himself addressed the entire group of 200 men, and finally, at about 11 o'clock, secured their acceptance of his offer to restore 5 cents of the pay cut.15 The night crew then left the plant and the day crew resumed operations. Due to the fact that the members of the night shift had remained in the plant that morning long after their usual quitting time,1e an insufficient number of the men reported for work on the evening of December 16, to operate the shift profitably, and those who did report for work were sent home. Both the day and night shifts, however. operated with their regular,crews on December 17 and 18.17 Decem- ber 19 was Sunday and the plant was closed as usual. Ryan testi. fled that during the day shift on Monday, December 20, he was informed 11 that the night crew was still dissatisfied, and was agi- tating for another strike. Ryan also testified that he was told that the day shift was unwilling to participate in such action, and was "coming in here tomorrow, if we have to fight our way in." 19 Ryan asserted that he thereupon determined to lay off the entire night shift in order "to protect the property which I had under my juris- diction," and "to avoid trouble" which might result from another strike: When the night-shift employees reported for work that night, they found the gates closed and a sign posted stating that the shift was "discontinued until further notice." The men were given discontinu- ance of employment slips, and were told to return on Wednesday, December 22, for their pay. At the hearing Ryan stated that such slips were required "when a man is fired, laid off or quits," and in his testimony, repeatedly referred to the shut-down of the night shift as 14 Frakes and Theodore Kabat were also on this committee 1i As has been stated, the night crew had previously rejected this offer Ryan also promised to discuss with "Joe" the possibility of a wage increase for the unskilled laborers who "Joe" was does not appear from the record. ie The night shift usually worked from 5 P Al . to 2 or 2 : 30 A Al 14 As subsequently appears, Steve Brooks and Lloyd Jordan did not work on either of these nights . Brooks was refused work and Jordan was ill See Section II A, 2, below Frakes, with the permission of his foreman , did not work on December 18. 18 Ryan testified that he was so informed by "several" employees on the day shift. How- ever , he named only one such employee , Stuart Hoffman Koffman did not testify 1e Ryan testified that the day crew conducted an Informal election among its members, and that he was informed by Lou wolf, a foreman on the day shift , that all of the em- ployees except one, voted not to strike wolf did 'not testify Ryan also asserted that lie was informed by members of the day shift , that the day crew would come in even if it had to "fight" its way In He did not name any of the employees alleged to have made this statement , and none of the members of the day shift was called as a witness. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a lay-off. It is clear from the record that it was so regarded by the employees as well. We find that the closing of the night shift on December 20 effected a lay-off of the employees on that shift. 2. The discriminatory discharges All of the employees named in the complaint with the exception of Lloyd Jordan, as well as most of the other men on the night shift, reported for their pay on December 22. 20 After the men were paid, Hurt asked certain of them, including Blackford, to step into a room adjoining the hallway, where he addressed them substantially as follows: "The fellows on the outside have lost their jobs over this thing. They are not going to be taken back. We want you fellows to go to work. If you want the work, go back in there and work at the price of 95 cents for the automobile cars 21 and the price of the box cars will be adjusted later. From now on, out in the shop I am going to be boss ; nobody is going to tell me anything ; and this committee stuff has got to be cut out . We aren't going to put up with it. You fellows have lost a lot of time through your foolishness and stub- bornness." These men, including Blackford , were then "signed up," and told to report for work on Monday, December 27.22 Blackford was the only one of the employees named in the complaint who was thus singled out. The night shift resumed operations on December 27. Thereafter, Michalowski , Jordan, Burke, Brooks, Theodore Kabat, Frakes, and Murphy, as well as Blackford , reported for work.23 All of them, including Blackford , were refused reinstatement. Ryan admitted that there were as many jobs available on December 27 as there had been on December 20 when the shift was laid off. Since only one new welder had been hired on December 23, and only 7 20 As has been stated, Biienzo did not testify at the healing It does not appear whether he returned to the plant after the lay-off of the night shift on December 20 n This was the rate which had been agreed upon when the strike was settled on December 16. ^ Hurt did not testify with respect to the incident Toward the close of his direct examination, which included specific denials of several other statements attributed to him by Board witnesses, Hurt was asked by the Tiial Examiner whether there were any other statements by witnesses, which he did not "agree with" or wished to "explain or answer." Hurt replied that he did not believe so The Trial Examiner then stated that lie would "take into consideration this fact, that [the] iespondent's witnesses may not deny ver- batim some statements, but the Examiner will assume if it was called to their attention, it would probably be denied I say that just as a matter of fairness " The Board's attorney then stated for the record that Ryan "kept notes of the testimony of all of the witnesses and that he had his witness deny specific statements of the Board's witnesses " we have, in making our findings and evaluating the weight to be given the failure of the respondent's witnesses to deny specific statements, duly considered this ruling of the Trial Examiner `iBlackfoid, Dlicbalowski, Joidan, Brooks, Theodore Tiabat, and Murphy reported for work on December 27. Burke testified that he ieturned to the plant "3 or 4 times" after December 22 ; lie did not state v nether one of these visits occurred on December 27. Frakes testified that he returned to the plant during the week commencing December 27. RYAN CAR COMPANY 147 i,ew welders and 10 new unskilled laborers were lured on December 27,24 it is apparent that substantially the entire crew was reinstated with the exception of those named in the complaint, and perhaps a few others. Thereafter the night shift continued to operate until the- "latter" part of April 1938, when the Union Pacific job was completed. We find that Michalowski, Jordan, Burke, Edwards, Brooks, John Kabat, Theodore Kabat, Frakes, and Murphy were discharged on De-- celnber 22, and Blackford on December 27.25 The welders The respondent asserts that it did not reinstate the welders named in the complaint 26 because it believed that they could be replaced with better men. While we shall consider this contention below in connec- tion with each of the discharges, it may be noted preliminarily (1) that the welding crew for the Union Pacific job had been selected from approximately 1,000 applicants whose ability was known to the re- spondent's foremen or had been tested at the time of their applications; (2) that the welders named in the complaint had been retained in the respondent's employ for approximately 2 months or longer; and (3) that the explanation for the refusal to reinstate them advanced at the hearing, was not given to any of them at the time of their discharge. With these facts in mind, we turn to a consideration of the evidence with respect to each of the discharges. John, F. Black ford, a welder of 6 or 7 years of experience, was hired by the respondent in September 1937. As has been stated, on December 22, he was told by Hurt to return to work on December 27. When he then reported for work, he was told ' by -Hurt that there was no work for him but was given no other explanation for his discharge. Hurt testified that he changed his mind with regard to reinstating- Blackford because Blackford was "a good welder at times, and at times he wasn't," and Hurt felt he could replace him with a better man ; and because one- Christianson, who was an inspector for the Union Pacific Railroad, had expressed some objection to Blackford's work when he was informed of Blackford's reinstatement. Christian- son did not testify at the hearing, and Hurt did not disclose the nature of this objection. Blackford had been hired at 65 cents per hour and, after several days, had been told by his foreman that "they" had been "picking out several of the best men they wanted to keep," and that Blackford u From December 27 to January 15, 1938, the respondent hired one new welder and two new unskilled laborers for the night shift . No figures indicating the turn-over thereafter are given 25 We make no finding as to Brienzo . See footnote 20, supra. 26 Blackford, Frakes, Murphy, and Michalowski. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would receive 75 cents per hour thereafter. Subsequently, his pay had been fixed at 85 cents per car on piece work, and he was earning, at the time of the strike, approximately $112 every 2 weeks as com- pared to earnings of approximately $90 every 2 weeks when he first entered the respondent's employ. In October 1937, when one of the pay cuts previously mentioned was put into effect, Blackford's pay had remained unchanged. He had never received any complaints about his work and, as we have pointed out above, he was not told that lie was being refused reinstatement because his work was unsatisfactory. Under the circumstances, and in view of evidence, to which we shall now refer, which indicates another basis for Blackford's discharge, we do not credit the explanation given for Blackford's dismissal. ' As we have stated above'27 Blackford assumed the leadership of the men on the night of the strike and was active in the organiza- tion of the committee which represented the strikers in the negotia- tions' with Ryan.28 As we have also previously stated, when lie received his pay on December 22, he was told by Hurt to report for work on December 27. When he reported on that day, Hurt in- formed him, "Sorry, Jack. No ' job." When Blackford remon- strated, he was told by Hurt, "I am sorry, Jack, get on the outside of that fence." In view of Hurt's declared determination that the "committee stuff has got to be cut out," Blackford's prominent part in the strike and leadership of the men, and the absence of any,other explanation for his discharge which is supported by the record, and upon the entire record, we conclude, as, did the Trial Examiner, that his peremptory dismissal in the manner described above, was caused by his con- spicuous participation in concerted activities with his fellow employees .21 Blackford was unemployed from the time of his discharge until the hearing, except for work he obtained on W. P. A. projects. John Frakes, a welder of 10 or 11 years' experience, was hired by the respondent in October 1937. He returned to the plant on Decem- " Section II A, I 28 Previously , at the request of seveial tellow employees , Blackfoid had gone, to C. I 0 headquarters in Chicago to secure "information " concerning union organization; and had theieaftei distributed application cards for a C 1 O . union . The record' does not disclose what' union' this was: of when the, incident occurred Apparently it occurred, in- October, after: a pay cut at that time The record' also does not disclose how many cards were signed Rossevei , it appears that none of the cards was turned over to the union Hurt admitted that lie ' had heard that "Blackford and, some of those fellows were attempting to get the union in the plant,' but stated that lie "didn't do anything at that present time ' Hurts testimony cleaily iefeis to the time when lie learned of Blackford's activ- itlec in this regard A t does not.-appcai when.tliis occurred' V In: making oi findings 'with regard to the 'reasons for the discharge of Blackfoul as well as all of the other employees named in the complaint,. ise have also taken into con- sideration remarks which Burt made to certain of them at the time that they iequested reinstatement See our discussion below in connection with the discharges of Fiakes, Murphy, and Bmke See al'o Section II B. infia RYAN CAR COMPANY 149 her 22, when he received his pay, and again during the week com- mencing December 27, but was not reinstated. Hurt testified that Frakes was refused reinstatement because Hurt believed that Frakes could be replaced by a better man; and because Frakes' work was "sloppy" and had caused "quite a bit of trouble" with Christianson, the Union Pacific inspector, during the week prior to the strike. Hurt further testified that these complaints were- brought to Frakes' attention. Frakes denied that he had received any complaints regarding his work, admitted that he had had an argument with Christianson, but asserted that this argument did not concern the quality of his work.10 In view of the fact that Frakes had had 10 or 11 years of experi- ence as a welder, and that the welding crew had been selected from approximately 1000 applicants, we should doubt that Frakes was in fact an unsatisfactory worker. Nor, in view of the foregoing, and the further fact that many welders were apparently available for employment and that the respondent retained Frakes in its employ for approximately 2 months, are we convinced that the respondent believed that Frakes could be replaced by a better man. Moreover, we are persuaded by other considerations which we shall now discuss, and which indicate another basis for Frakes' dismissal, that the matters asserted by Hurt at the hearing were not, in any event, the reason for Frakes' discharge. As we have stated previously,?1 Frakes was a member of the com- mittee which had negotiated with Ryan during the strike. We hai e also referred previously to the speech which Hurt made on December 22 to several employees, including Blackford, and in which Hurt stated that "the fellows on the outside have lost their jobs over this thing. They are not going to be taken back. . . . From now on . . . this committee stuff has got to be cut out. We aren't going to put up with it." Frakes did not speak to any of the com- pany officials when he returned for his pay on December 22. How- ever, when he again returned to the plant during the week com- lnencing December 27, he asked Hurt "why I am let out." Hurt then stated, according to Frakes, "I guess because you have taken part in the strike." When Frakes insisted that he wanted "no guess- work," Frakes testified that Hurt replied, "That is it, because you have taken part in the strike. You know what it is." At the hear- ing, Hurt admitted that Frakes had asked whether he was being discharged because he "had something to do with the strike," and that Hurt had answered, "maybe you did and maybe you didn't. 30 The record does not disclose the cause of the dispute previously, was not called as a witness 31 See Section II A, 1 , supra. 283032-41-vol 21--11 Christianson, as we have noted 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD What is the difference? The strike is over now"; but otherwise denied Frakes' testimony. The Trial Examiner, who had an op- portunity to see and hear the witnesses testify, concluded, and we find, that Hurt made the statements attributed to him by Frakes. In the light of the foregoing, and of the entire record, we find, as did the Trial Examiner, that Frakes was in fact dismissed be- cause of his participation in the strike. At the time of the strike, Frakes was earning approximately $120 every 2 weeks. At the time of the hearing, he was employed as a welder on a temporary job, and was earning between $30 and $35 per week. Edwin Murph j was hired as a welder in September 1937. On the night of the strike, he had left the plant with the permission of his foreman, at about 8 or 8:30 o'clock. It is not clear whether or not Murphy then knew of the plan to strike. He returned at about 1 a. in., and remained in the plant until the strike was settled.32 He reported at the plant on December 22 for his pay, and on December 27 to resume work, but was not reinstated. Hurt testified that Murphy was not reinstated only because it was believed that lie could be replaced with a better man. The record dis- closes that Murphy in fact was not an experienced welder, and that, after working in that capacity for a few hours at the time he was hired, he had requested that he be assigned to other work because he realized that he could not do properly the welding required by the respondent. Thereafter lie had worked as a laborer for 5 or 6 weeks, at 45 cents per hour. However, he was then reassigned to welding, at which his pay averaged $1 per hour, and was working as a welder on December 15. It seems clear, therefore, that the respondent was satisfied with Murphy's work prior to the strike and that he was re- garded as a promising worker. This is further substantiated by Murphy's testimony, which is uncontradicted, that Christianson had not liked his welding work at first, but had subsequently compli- mented him for it; and that Lou Wolf, a foreman, had stated in Murphy's presence that Murphy had "some sense" and that "we will make . . . something out of him." 33 Moreover, Murphy was not told that he was refused reinstatement because his work was regarded as unsatisfactory. Under the circumstances, and in the light of a conversation which Murphy had with Hurt on December 27 and Hurt's testimony at the hearing, to which we shall now refer, we do not believe that Murphy was in fact dismissed for the reason asserted by Hurt at the hearing. 32 Murphy testified that he retui ned to the plant to drive two fellow employees home from work As we have stated , the night shift usually worked from 5 p in to 2 or 2:30 a in 33 wolf did not testify at the hearing. RYAN CAR COMPANY 151 Murphy did not speak to Hurt on December 22. On December 27, however, he saw Hurt and asked him why he was "let out." Murphy testified that he was then told by Hurt that it was "for your part in the strike." Murphy further testified that Emmett Welch,34 another foreman who was present at the time, protested to Hurt that Murphy was "absolutely innocent of the whole affair," but that Hurt answered, "Well, that is the way it is." Hurt denied that he made the forego- ing remarks, and stated that he did not know that Murphy was "in any way connected with" the strike. However, he admitted at the hearing that "the only thing I had in my mind" was that Murphy "might be one of the trouble makers, but he didn't want to be on the job at the time the strike was pulled off." In the light of the above, and the entire record, we conclude, as did the Trial Examiner, that Hurt's denial is not to be credited; and we find, as did the Trial Examiner, that Murphy was discharged because he was regarded by the respondent as a participant in the strike. At the time of the hearing, Murphy had had no employment since his discharge except for work on W. P. A. projects, and a temporary job on which he had earned $8.75. Felix Michalowski, a welder of 3 years' experience, was also hired in September 1937. He received his pay on December 22, but did not then speak to company officials. When he applied for work on December 27 he was told by Hurt that he was not being reinstated because lie was "a bad egg and had a bad record." At the hearing Hurt testified that Michalowski's work was poor; and that he was continually leaving his job and "running around the shop," engaging other employees in conversation, and complaining that he had no material with which to work. Hurt also testified that he did not like Michalowski's "attitude towards the work" and ex plained that he meant by "attitude," "Well, just the actions of the man. He run back and forth and talked . . . and I never could seem to find out what their conversation was . . ." Hurt also as- serted that he had spoken to Michalowski about Michalowski's leav- ing his work approximately a month before his discharge; that he had decided to discharge Michalowski "as soon as possible," but had deferred the dismissal because "I couldn't get a welder to replace him at that time";" and that he did not know that Michalowski was in any way involved in the "trouble" on December 15, since Micha- lowski's pay had not been cut on December 13.30 34 Welch was in South America at the time of the hearing. 35 Although Hurt did not disclose the time to which he thus referred, apparently it was approximately 1 month before Dlichalowski's dismissal. 35 Apparently Michalowski was not included in the pay cut because of the low rate of pay which he was already ieceivmg 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michalowski denied that he had received any complaints concerning his work, or had had any difficulties with the foreman because of any activities in the shop except on one occasion, approximately 6 weeks before the strike, when lie had left his work for a few minutes to speak to another employee concerning a ride home, at which time Hurt had warned him that if lie did not "stop going to the back part," he would be discharged. Michalowski also denied that he had ever done this again. At the time of his discharge, Michalowski had been employed by the respondent for approximately 3 months. As we have stated previously, the welding crew, of which he was a member, had been selected from approximately 1,000 applicants, all of whom were known to be competent welders, or had been subjected to a test at the time of their employment .31 Moreover,, the respondent apparently ex- perienced no difficulty in securing new welders on December 23 or thereafter."' Under the circumstances, we do not believe that Michalowski was retained only because the respondent believed that lie could not be replaced, and we are convinced, on the contrary, that his work was regarded as satisfactory. Nor, under the circumstances, do we believe that Michalowski's alleged "attitude towards the work" or his other activities to which Hurt testified, were regarded as grounds for his discharge, since the respondent admittedly did not discharge him at the time of their alleged occurrence, and its explana- tion for its failure then to do so is plainly without merit. We con- clude, accordingly, that Michalowski was in fact not discharged for the reasons asserted by Hurt at the hearing. We have been further impelled to our conclusions in this regard by other considerations, to which we shall now refer, and which indicate another basis for Michalowski's dismissal. On the night of the strike, while Ryan was addressing the men for the first time, Hurt had engaged Michalowski in conversation, sug- gested that he return to work, and stated that Hurt did not understand why Michalowski was participating in the strike. Michalowski had replied that he was striking because the rest of the crew were. We have previously mentioned Hurt's statement to several employees on December 22, that "the fellows on the outside have lost their jobs over this thing," and that "the committee stuff has got to be cut out. We aren't going to put up with it." In view of the foregoing, and the entire record, we are convinced and find, as did the Trial Examiner, that Michalowski was discharged because he had acted in concert with his fellow employees. ffi The record does not disclose whether Michalowski was given a test at the time of his employment 38 As has been noted , between December 23 and 27 the respondent hired eight new ,welders. RYAN CAR COMPANY 153 At the time of the strike, Michalowski was earning between $40 and $45 per week. At the time of the hearing, he had been unemployed since his discharge, except for work on W. P. A. projects. The unskilled laborers As we have previously stated , the respondent classified its helpers, fitters, and laborers as unskilled laborers. At the hearing it asserted that it dicharged the unskilled employees named in the complaint because it wished to replace them with Hegewisch residents , who, it claimed, had been laid off from the Illinois Central job. On that job, which had just been completed , the respondent had employed approximately 700 men, including , as we have stated above, substantially all of the unskilled laborers residing in Hegewisch. However, although the crew of unskilled laborers on each shift of the Union Pacific job numbered only approximately 68 men prior to the lay-off on December 20 , and although the same number of unskilled jobs was available when the night shift resumed operations , the re- spondent hired on December 27 only 10, and during the period from December 27 to January 15, 1938, 1° only 2 unskilled laborers who had not been employed on that job prior to the lay-off of the night shift.40 Moreover, no claim was made that any unskilled laborers on the day shift were replaced with Hegewisch residents . Furthermore, it is undisputed that none of the unskilled laborers named in the com- plaint was told at the time of his discharge that he was being dis- missed because the respondent desired to give employment to Hegewisch residents. While Hurt testified that the matter of re- placement of non -Hegewisch residents with Hegewisch residents had been discussed with Ryan twice during the month before the strike, he admitted that nothing was then done about it except that when positions were available, he "would put some of these men from Hegewisch to work." Hurt was then asked , "Then if these men had not gone out on strike and if the men had not been laid off on December 20th, you would not have put Hegewisch men in?" His answer was, "I might have done it. " We find that the unskilled laborers named in the complaint were not refused reinstatement in order to give employment to residents of Hegewisch.41 Gail Edwards, Homer L. Burke, Theodore Kabat, and John Kabat. Edwards, Burke , and John Rabat, were employed as welders ' helpers; "The tun n-over after January 15 is not giN en 40 In fact , the record does not establish that these 12 new unskilled laborers were Hegewisch residents who had formerly been employed on the Illinois Central job S1 The respondent also asserted that "some" of the unskilled laborers named in the com- plaint were not reinstated because "their work wasn 't satisfactory." However , no specific charge of inefficiency was made against any one of these emplo3ees , and the respondent did not offer any evidence to support the claim we find it to be uuthout meat. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Theodore Kabat, who was the son of John Kabat, as leader of the labor gang. Theodore Kabat and Burke had been hired in September or October 1937, John Kabat at the beginning of November 1937, and Edwards on November 26, 1937. At the hearing, the respondent offered no explanation for the refusal to reinstate these four employees except the general one, which we have already considered and found to be without merit. We turn then to a consideration of the evidence of another basis for the discharges of these employees. We have previously referred to the address which Hurt delivered to certain of the employees on December 22, and in which Hurt stated that "the fellows on the outside have lost their jobs over this thing. They are not going to be taken back. . . . From now on, out in the shop I am going to be boss; ... this committee stuff has got to be cut out. We aren't going to put up with it." Theodore Kabat had been a member of the negotiating committee during the strike. On December 22 he went to the plant, accom- panied by his father, to receive their pay. He was then told by Hurt, "We don't want you." When he asked, "How about my Dad?" he was told, "Well, that goes for both of youse." He again returned to the plant on December 27, but was refused admittance by the watchman. Neither he nor his father received any explanation for the refusal to permit them to resume work. In the light of the entire record, his peremptory discharge in the curt manner described can only be ex- plained in terms of his active participation in the strike and Hurt's determination that "the committee stuff has got to be cut out." It is also clear from what has previously been said that John Kabat was discharged because of the coincidence of his presence at the time that his son was dismissed.42 We find, as did the Trial Examiner, that Theodore Kabat and John Kabat, were discharged in order to dis- courage concerted action by the respondent's employees. Burke testified that he returned to the plant on December 22 and after receiving his pay, asked Hurt, "How about going back to work?" According to Burke, Hurt replied, "You know too much about the strike. There is the gate over there." Burke also testified that lie went to the plant "3 or 4 times" thereafter, but was unable to see Hurt or Ryan. Although Hurt denied generally that he told any of the employees that they were being refused reinstatement because of their participation in the strike, he did not deny specifically that he made the remarks to which Burke testified. The Trial Examiner did not credit Hurt's denial in this regard, and we are satisfied in the light of the entire record, that Hurt made the statements attributed to him by 42 Edward Kabat, a welder on the night shift, who was a brother of Theodore, was rein- stated after the strike He had not accompanied Theodore to the plant on December 22 when Theodore and John were discharged In view of the circumstances surrounding John's discharge , we do not regard Edward 's reinstatement as of any significance. RYAN CAR COMPANY 155 Burke.43 We find, as did the Trial Examiner, that Burke was dis- charged because the respondent believed that he had been an active participant in the strike. Edwards received his pay on December 22, but did not speak to Hurt, or any other company officials then or thereafter . Although it does not appear that he was a conspicuous participant in the strike, it is clear from the statements which Hurt made to Blackford and other employees, and which have been described above, and from the entire record, that Hurt's selection of employees for discharge on December 22 was determined , at least in the absence of other special considera- tions, by his opinion with regard to the nature and extent of their participation in the strike, and by his intention to assure that another strike would not occur and that the "committee stuff" would be "cut out." The record does not disclose any basis for Edwards ' discharge which withstands scrutiny except his participation in the strike and we conclude, as did the Trial Examiner, that this was in fact the reason for his dismissal. At the time of the strike, Theodore Kabat's average weekly earnings were $25 per week, Edwards ' $25 or $30 per week, Burke was receiving 40 or 45 cents per hour, and John Kabat, 40 cents per hour. At the time of the hearing, John Kabat, Theodore Kabat, and Edwards had been unemployed' since their discharge by the respondent; and Burke had had a temporary job in a store for 2 days where he had earned $2.37 per day, and had worked on W. P. A. projects where his total earnings were $188. Steve Brooks was employed as a welder 's helper or fitter. He was first hired in August 1937, apparently in connection with the Illinois Central job. After working for approximately a month, he had quit because of a wage cut. Thereafter, he was employed on the Union Pacific job, and had again quit, this time apparently because he was having trouble with his eyes .44 He was hired for the third time on December 13, the day the wage cut, which was the immediate cause of the strike, went into effect. After the strike on December 15 Brooks was not given work on December 17 or 18, although all of the other employees of the respondent who had participated in the strike were permitted to work on those days. Hurt told Brooks on each of those nights, that there was no work for him. The Trial Examiner found that Brooks was discriminatorily dis- charged, and the respondent did not file exceptions to this finding. However, under all the circumstances, we are not convinced that Brooks was refused reinstatement because of his participation in 41 See footnote 22, supra. 94 It is not clear when Brooks was hired or when he quit on the second occasion of his employment. 156 DECISI0- S OF NATIONAL LABOR RELATIONS BOARD the strike, and we shall dismiss the allegations of the complaint as to him. Lloyd Jordan was employed as foreman of the welders' helpers at it salary of $200 per month. He was not affected by the wage cuts which we have previously mentioned. When he reported for work on December 15 at about 5: 30 in the afternoon, he found one Hildebrant, who had formerly been foreman of the welders' helpers and who had previously been discharged by the respondent, working in his place. Hurt then stated to Jordan that the respondent had decided to reemploy Hildebrant, and that Jordan could have any other fitting job in the plant which he desired. Jordan replied that he was not feeling well, and requested, and was given, permission to go home. Accordingly, he was not present at the plant on the night of the strike. On December 16 he reported for work but, as has been stated, the shift did not work that night. On December 17 and 18 Jordan was again ill and unable to work; it appears also that the respondent was so advised by Murphy. On December 27, when Jordan again reported for work, he was told by Hurt that there was "nothing doing" for him, but was given no other explana- tion for the termination of his employment. Jordan testified that he had been friendly with Blackford, Murphy, and Frakes ; that he knew of plans for the strike on December 15, and that one of the causes of the strike was the men's alleged insist- ence that he be reinstated as foreman.45 None of the other em- ployees who testified, however, asserted that this was a cause of the strike, and it does not appear to have been mentioned in the course of the negotiations between Ryan and the committee. Hurt testified that Jordan was demoted because his work was unsatisfactory, and that he was discharged because, since the re- spondent was operating on a piece-work basis, it could not hold a job open for him during his absence on December 17 and 18. Accord- ingly, Hurt stated, Jordan had been replaced. Hurt also testified that he had no knowledge that Jordan had participated in the strike. In this regard, Jordan stated that he "supposed," but was not sure, that the respondent knew of his participation in plans for the strike on December 15. The Trial Examiner found in his Intermediate Report, that there was insufficient evidence to support a finding that Jordan was dis- charged because of his alleged activities in connection with the strike. Jordan filed exceptions to this finding We are not satis- fied from the evidence that Jordan was discharged because of his alleged activities in connection with the strike, and we shall dismiss the allegations of the complaint as to him. 95 Jordan stated that the men wanted him "bad to work " However, it is clear that he meant thereby that the men wished to secure his return to his job as foreman. RYAN CAR COMPANY Conclusions 157 We have found above that the respondent refused to reinstate John F. Blackford, John Frakes, Edwin Murphy, Felix Michalowski, Gail Edwards, Homer L. Burke, Theodore Kabat, and John Kabat, because they participated in a strike and engaged in concerted activi- ties for the purposes of their mutual aid and protection. The refusal to reinstate these employees for this reason constituted a discrimina- tion in regard to the hire and tenure of their employment, which discouraged the formation of or membership in a labor organiza- tion's since, clearly, it constituted a warning that such activity would result in the discharge of the employees participating therein. We find that the respondent has discriminated with respect to the hire and tenure of employment of John F. Blackford, John Frakes, Edwin Murphy, Felix Michalowski, Gail Edwards, Homer L. Burke, Theodore Kabat, and John Kabat, and thereby discouraged mem- bership in a labor organization. We further find that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. B. Interference, restraint, and coercion The complaint alleges that the respondent advised and warned its employees to refrain from joining any labor organization, and threatened its employees with discharge if they joined any labor organization or participated in concerted activities.4, In its answer, the respondent denied the allegations of the complaint in this regard. Brooks testified that in August or September 1937, he was told by Hildebrant, then his foreman on the Illinois Central job, "If you want to work in this place, don't mention any union." Jordan tes- tified that during the period of approximately 2 months that he was foreman of the welders' helpers on the Union Pacific job, he was instructed by Hurt many times that "if there was anyone in the plant talking union, why, you want to get rid of them." 48 Black- ford testified that after Ryan had addressed both the day and the night shifts on the morning of December 16 one of the employees called out that the men would go to the National Labor Relations Board, and that Ryan then stated, "Nobody has to have anyone 46 A labor organization is defined in Section 2 (5) of the Act as "any organization of any kind, or any agency or employee iepiesentation committee or plan, in which em- ployees participate and which exists for the purpose, in whole or in pact, of dealing with emploveis concerning guevances, labor disputes, wages, sates of pay, hours of employ- ment, or conditions of work " 41 The complaint alleges that these activities occurred from on or about December 15, 1937 , down to and including the filing of the complaint herein The complaint was filed on August 4, 1938. As has been stated, during the hearing the Trial Examiner granted the motion of the Board attorney to conform the pleadings to the proof 48Jordan did not otherwise fix the time when these instructions were given. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD come in from the outside in here to settle anything," and "Nobody has to bring a labor racketeer in here to hold his job here, and we are not going to have anybody from the outside tell us how to run the plant." Blackford's testimony in this regard was corroborated by Frakes and by Burke. The latter testified that Ryan also said dur- ing the night of the strike, "We never had a union here at this company, and we don't want one. We can get along without it. Why should you men give your money to a bunch of racketeers ? 11 49 Hurt denied that he had ever instructed Jordan to discharge em- ployees who engaged in union activities. Although Ryan did not deny specifically the statements attributed to him by Blackford, Frakes, and Burke, he asserted in general terms that he was not op- posed to, and had never interfered with, the union membership or activities of the respondent's employees.-'O Hildebrant was not called as a witness. The testimony of the Board's witnesses in this regard, is consistent with the respondent's conduct in refusing to reinstate the employees named in the complaint, and we are convinced, in the light of the entire record, that Hurt issued the instruction to which Jordan testified and that Ryan and Hildebrant made the statements attributed to them by Blackford, Frakes, Burke, and Brooks, as set forth above. We have previously 51 referred also to the speech which Hurt deliv- ered to a group of employees, including Blackford, on December 22, in which he stated that he would be "boss" in the shop thereafter, that "this committee stuff has got to be cut out," and that "we aren't going to put up with it." We find that the respondent, by the foregoing statements, threats, and warnings, interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section II above, occurring in connection with the operations of the respondent de- scribed 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. ' Blackford , Frakes , and Burke also testified that welch, a welders' foreman, had told them separately that he had orders to discharge any employee who agitated for a union. Frakes asserted that welch told him that these orders were issued by Ryan . As has been stated , welch was in South America at the time of the hearing. It does not appear when welch made the statements to which these men testified. 50 See footnote 22, supra. 11 See Section II A, 2. RYAN CAR COMPANY IV. THE REMEDY 159 Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist from further engaging in such practices. We shall also order the respondent to take certain affirmative action which we deem necessary to effectuate the policies of the Act. We have found that the respondent discriminatorily discharged John F. Blackford, John Frakes, Edwin Murphy, Felix Michalowski, Homer L. Burke, Gail Edwards, John Kabat, and Theodore Kabat. We shall order the respondent to make said employees whole for any loss of pay they may have suffered by reason of such discharge, by payment to each of them of a sum of money equal to the amount which he would normally have earned as wages from December 27, 1937, the date when the respondent resumed operation of the night shift, until the cessation of the respondent's business, 52 less his net earnings 53 during such period. Upon the basis of the above findings of fact'and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. By discriminating in regard to the hire and tenure of employment of John F. Blackford, John Frakes, Edwin Murphy, Felix Michalow- ski, Gail Edwards, Homer L. Burke, Theodore Kabat, and John Kabat, thereby discouraging membership in a labor organization, the respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respond- ea As appears above , the trustee in bankruptcy is not operating the business heretofore operated by the respondent As also appeals above, the Union Pacific job , in connection with which the employees herein found to have been discriminatorily discharged, were hired, was completed in the "latter" part of April 1938 However , this fact goes to the question of compliance with our Order herein. There is also some evidence that as a result of a change in operations shortly after the resumption of the night shift, fewer welders and unskilled laborers were required by the respondent However, there is no evidence that the change in operations would have caused the discharge of any of the em- ployees named in the complaint In any event, such a circumstance also relates only to the question of compliance with our Order. ss 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 Brotheihood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union , Local 2590, 8 N L R B. 440 Monies re- ceived 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. 160 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent, by discharging Steve Brooks and Floyd Jordan, has not engaged in unfair labor practices, within the meaning of Sec- tion 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, the Ryan Car Company, and its agents, successors, or assigns, shall : 1. Cease and desist from : (a) Discouraging membership in any labor organization of its em- ployees 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 and 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) Make whole John F. Blackford, John Frakes, Edwin Murphy, Felix Michalowski, Gail Edwards, Homer L. Burke, Theodore Kabat, and John Kabat for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure of employment, by payment to each of them of a stun of money equal to that which he would normally have earned as wages from December 27, 1937, until the cessation of the respondent's business, 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 projects; (b) Notify the Regional Director for the Thirteenth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. RYAN CAR COMPANY 161 AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent engaged in unfair labor practices with respect to Steve Brooks and Floyd Jordan, be, and the same hereby is, dismissed. AND IT IS HEREBY FURTHER ORDERED that the complaint, in so far as it alleges that the respondent engaged in unfair labor practices with respect to James Brienzo, be, and the same hereby is, dismissed with- out prejudice. MR. WILLIAM M. LEISERSON took 110 part in the consideration of the above Decision and Order.