Walworth Co., Inc.

In the Matter Of WALWORTH COMPANY, INC. (KEWANEE PLANT) and LODGE 1768, AMALGAMATED ASSOCIATION OF IRON, STEEL AND TIN WORKERS OF NORTH AMERICA, THROUGH THE STEEL WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH THE COMMITTEE FOR INDUSTRIAL ORGANIZATION Case No. C-927.-Decided March 07, 1940 Valve and Pipe Fitting Manufacturing Industry-Company-Dominated Union: domination of and interference with formation of predecessor employee organi- zation and support thereto and outspoken hostility to "outside " unions ; successor employee organization held to be continuation of predecessor company-domi- nated union ; successor employee organization organized at a meeting called by predecessor employee organization ; substantially same group of employees organized both organizations ; no effort by respondent to inform generality of its employees of its disassociation from participation in union affairs ; no public disclaimer by respondent of previously open hostility to "outside " unions ; other factors considered : membership of subforemen in successor employee organiza- tion ; meetings on company time and property ; solicitation on behalf of successor employee organization on company time and property and in presence of supervisory employees ; respondent ordered to disestablish successor employee organization-Contract : with successor employee organization ; respondent ordered to cease giving effect thereto-Discrimination: as to tenure of em- ployment ; discharge for union membership and activity ; charges of, sustained as to 11 employees , dismissed as to 23-Regular and Substantially Equivalent Employment : factors considered ; desire for reinstatement ; new employment at different types of work ; lack of employment at time of hearing-Reinstatement Ordered: employees found to have been discriminated against-Back Pay: awarded to employees discriminatorily discharged. Mr. Herbert N. Shenkin, for the Board. Fyffe and Clark, by Mr. A. J. Smith, of Chicago, Ill., for the respondent. Ilir. Henry TV. Lehmann, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon second amended charges 1 duly filed by Lodge 1768, of Amalgamated Association of Iron, Steel and Tin Workers of North I The second amended charges include the allegations contained in the charges previously filed. 21 N. L R. B., No. 127. 1302 WALWVORTH COMPANY, INC. 1303 America, through the Steel Workers Organizing Committee, affiliated -`with the Committee for Industrial Organization, herein called the Amalgamated, the National Labor Relations Board, herein called the Board, by its Regional Director for the Thirteenth Region (Chicago, Illinois), issued its complaint dated June 6, 1938, against Walworth Company, Inc. (Kewanee Plant), Kewanee, Illinois, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), 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, accompanied by notice of hearing, were duly served upon the respondent and the Amalgamated. With respect to the unfair labor practices, the complaint alleged, in substance: (1) that on or about April 19, 1937, the respondent .instigated the formation of Valve and -Fittings Workers' Union of Kewanee, herein called the V. F. W. U.; (a) that from such date until the date of the complaint, the respondent suggested to and urged its employees to join the V. F. W. U., threatened to discharge certain of its employees for not joining the V. F. W. U., otherwise fostered, promoted, and encouraged the growth of the V. F. W. U., dominated and interfered with the administration of the V. F. W. U., and 'contributed financial and other support to it; (3) that on, or about July 8, 1937, the respondent entered into a collective agreement with the V. F. W. U. which, among other things, provided for the recog- nition of the V. F. W. U. as the exclusive bargaining agent of all its employees at its Kewanee plant; (4) that on various dates between March 27 and November 30, 1937, the respondent discharged 36 of its employees for joining and assisting the Amalgamated and/or refusing to join the V. F. W. U., and (5) that from on or about April 15, 1937, ,to the date of the complaint, the respondent by spying upon meet- ings of the Amalgamated and by other acts discouraged its employees from joining or retaining their membership in the Amalgamated, thereby interfering with, restraining, and coercing its employees, in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed an answer, dated June 13, 1938, admitting that it was engaged in interstate commerce within the meaning of the Act but denying that it had engaged in the alleged unfair labor practices. The answer stated affirmatively that on the dates set forth in the complaint the respondent terminated the services of certain of its employees named in the complaint for the reason that the services of such employees were no longer required for the respond- ent's business. The answer also requested that the complaint be dismissed. Pursuant to the notice, a hearing was held at Kewanee, Illinois, on June 13, 14, 15, 16, 17, 20, 21, 22, and 23, 1938, before Horace A. 1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ruckel, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel. Full op- portunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded all parties. During the hearing, counsel for the Board moved to amend the complaint by adding thereto the names of Lucius Brody and Harold Stover as two of the respondent's employees who had been discharged for joining and assisting the Amalgamated and/or refusing to join the V. F. W. U. The Trial Examiner granted the motion. At the close of the Board's case, counsel for the respondent moved for dis- missal of the complaint in its entirety on the ground that the evi- dence .failed to prove the allegations in the complaint. The Trial Examiner reserved ruling on the motion. At the same time, counsel for the respondent moved to dismiss the complaint as to Lucius Brody and Harold Stover, whose names had been added to the com- plaint by amendment, on the ground that "no charge was filed on the part of the Labor Board as required by Sections 1 to 9 inclusive, of Article II of the National Labor Relations Act." The Trial Examiner reserved ruling on this motion. Counsel for the respond- ent then moved that it be permitted to amend its answer to meet the amendments to the complaint relating to Lucius Brody and Harold Stover. The Trial ,Examiner granted this motion. At the close of the hearing, on motion of counsel for the Board, the complaint was amended to strike therefrom the names of Jack Lee, Joe McCarthy, Kenneth Osborne, and John Ptasnik. Counsel for the Board also moved to conform the pleadings to the proof. This motion was granted. At the close of the hearing, counsel for the respondent renewed its previous motion to dismiss the complaint in its entirety and made an additional motion to dismiss the complaint with respect to the individuals named therein as having been discharged for joining and assisting the Amalgamated and/or refusing to join the V. F. W. U. The Trial Examiner denied both motions. During the course of the hearing, the Trial Examiner made numerous other rulings on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors weree committed. The rulings are hereby affirmed. The motions presented at the hearing as to which the Trial Examiner reserved rulings are hereby denied. On September 26, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from discouraging membership in the WALWORTH COMPANY, INC. 1305 Amalgamated, or any other labor organization of its employees, by discrimination in regard to hire or tenure of employment or any term or condition of employment and from dominating or inter- fering with the formation or administration of the V. F. W. U. or any other labor organization ; that it withdraw recognition from the V. F. W. U. and disestablish such organization as bargaining representative; that it cancel the contract of July 8, 1937, entered into between the respondent and V. F. W. U., and any renewal of such contract as may subsequently have been executed; that it rein- state, with back pay, 18 named employees found to have been dis- criminatorily discharged ; and that it post appropriate notices. The Trial Examiner also recommended dismissal of the complaint in so far as it alleged the commission of unfair labor practices within the meaning of the Act concerning 16 other named employees. Thereafter, the respondent filed its exceptions to the record and to the findings and recommendations of the Intermediate Report., The Board has considered all the exceptions of the respondent, and in so far as they are inconsistent with the findings, conclusions, and order set forth below finds no merit in them. Both at the hearing and in his Intermediate Report, the Trial Examiner notified the respondent and the Amalgamated that either party had the right to apply for oral argument before the Board and to file a brief. Thereafter, the respondent filed a brief which the Board has considered. None of the parties applied for oral argument before the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Walworth Company, Inc., is a Massachusetts corporation, incor- porated in 1872, and having its principal office and place of business in New York City. The respondent operates plants in Attalla, Alabama; Kewanee and East St. Louis, Illinois; Boston, Massa- chusetts; and Greensburg and Etna, Pennsylvania, and maintains sales offices in all parts of the United States. Among its subsidiaries are Walworth California Company, Westcott Valve Company, Wal- worth Realty Company, Walworth Delaware Corporation, Walworth International Company, Walworth Patents, Inc., and Walworth Company, Limited. This proceeding is. concerned only with the re- spondent's plant located in Kewanee, Illinois. The respondent, at its plant in Kewanee, Illinois, is engaged prin- cipally in the manufacture and sale of valves and pipe fittings made 1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of iron, brass, and steel.2 Such valves and pipe fittings are used by power plants, oil refineries, chemical plants, railroads, and in ship building, oil drilling, and housing and building construction. The principal materials used by the respondent at its Kewanee plant are pig iron, non-ferrous metals consisting of red-brass ingots, ingot copper, solder, and spelter, scrap iron, forging steel, nipple pipe, and brass pipe. During the year 1937, 26,323 tons of these materials, having a total value of $943,981, were shipped to the respondent's Kewanee plant. The materials shipped to the Kewanee plant from points outside Illinois amounted to 17 per cent of the total tonnage and to 28 per cent of the total value of the materials shipped to the plant during 1937. Of the materials shipped to the plant from points within Illinois, 50 per cent originated outside of Illinois. During the year 1937, the gross volume of valves and fittings produced at the respondent's Kewanee plant amounted to 12,291 tons and the value of such production was $5,702,069.3 Of these products, 93 per cent both in volume and value were shipped from the Kewanee plant to destinations outside Illinois. II. THE ORGANIZATIONS INVOLVED Lodge 1768, Amalgamated Association of Iron, Steel and Tin Workers of North America and the Steel Workers Organizing Com- mittee, are labor organizations affiliated with the Committee of Indus- trial Organizations, admitting to membership persons employed by the respondent. Valve and Fittings Workers' Union of Kewanee, is an unaffiliated labor organization incorporated under the laws of the State of Illinois. It admits to membership persons employed by the respond- ent, including supervisors or leaders who do not have the authority to hire or discharge employees, but excluding officials of the respond- ent and persons having the authority to hire and discharge. III. THE UNFAIR LABOR PRACTICES A. Backgrou1nd of the unfair labor practices In 1920 the American Federation of Labor attempted to organize the respondent's employees. After the conclusion of an unsuccessful strike at that time, no further effort was made by the,, American Federation of Labor to organize the respondent's employees until 1933 when it sent 2 organizers from Chicago, Illinois, to the Kewanee 2 Other plants operated by the respondent are engaged in the manufacture and sale of pipe tools , cast iron soil pipe, cast lion screwed pipe , and chrome nickel iron pipe, and in the lobbing of brass, iron, and steel pipe , and heating and plumbing materials 3 During 1936 and 1937, the respondent's total sales amounted, respectively, to $13,766,761 and $16,614,622 WALWORTH COMPANY, INC. 1307 plant for this purpose. The organizers employed certain persons, including one John Popejoy, an employee of the respondent, to dis- tribute leaflets among the employees at the respondent's Kewanee plant. On September 12, 1933, while Popejoy was engaged in dis- tributing leaflets at the main gate of the respondent's plant, one Red Miller, an, employee of the respondent, and one Les Alderman, then employed as a foreman by the respondent, told Popejoy that he would not be permitted to pass out leaflets at the place where he was sta- tioned. Popejoy replied that he would move out to the street and there distribute the leaflets. Thereupon either Les Alderman or Red Miller said "you ain't going anywhere only in this car." The two men then forced Popejoy into an automobile. At about the same time, one Si Nass, carrying a billie club in his hand, approached one of the two organizers who was standing on the sidewalk outside the respondent's plant and assailed him. After a scuffle, the organizer was put into an automobile and both he and Popejoy were driven away from the respondent's plant into the country. The driver stopped the automobile containing Popejoy under some trees. One of the assailants produced a rope, but an- other said "that limb won't hold him." After a short stop, Popejoy was driven several miles further. Finally, the driver stopped the automobile on the banks of a stream where about 8 or 10 other cars were parked. Among those present were several of the respondent's employees including William Gulshin, who gave orders to the other men during this incident, Pat Kaine, yard boss, and Al Griggs, identified as "employment man." Some men took the organizer out of an automobile in which he was lying with his hands and legs tied and with a hood over his head. Two of the men present beat the organizer with rope while Gulshin, Les Alderman, Pat Kaine, Al Griggs, and others watched them. Some of the assailants then threw the organizer into the river. He climbed out on the bank of the river and fled across a field. After some consultation among the men who had attacked the organizer and Popejoy, Alderman came to the auto- mobile in which Popejoy was seated and told him to get out of the car "and take that road and get out of sight just as damn quick" as he could. Popejoy then made his way back to Kewanee. There- after the organizers from Chicago left Kewanee. Although the above-described episode occurred prior to the effec- tive date of the Act, it is relevant to show the background of the events and activities alleged to constitute unfair labor practices, especially since Alderman, Gulshin, Kaine, and Griggs, all super- visory employees of the respondent, who participated in such epi- 1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sode, are likewise involved in the unfair labor practices alleged in the complaint to have been committed by the respondent.4 B. Interference with and domination and support of the V. F. W. U. In determining whether the respondent dominated, interfered with, and supported the V. F. W. U. as alleged in the complaint, it is necessary to consider the respondent's relation to an organization which immediately preceded it, known as Workers' Protective Organization. 1. The W. P. O. Early in April 1937, or immediately prior thereto, an organization known as the Conference, Committee, through which grievances of the respondent's employees had been handled, ceased to exist. On an evening during the first week of April 1937, a meeting Hof- about 40 or 50 of the respondent's employees was held' in the house of Reinhardt Tesch, also an employee of the respondent. Present at the meeting were A. J. Mather, works manager of the respondent's Kewanee plant, and William Gulshin, the foreman of the respond- ent's stock house, in which 80 to 125 persons were employed. Mather testified that the employees were anxious to form an organization which would protect them against loss of work through sit-down strikes and that in a statement made to the men at this meeting he said that "a man was entitled to protect his own job" and that it was his belief "that an organization of some similiar character would be a good thing for them." 5 When questioned at the meet- ing with respect to what the respondent's attitude would be "if they ever had any trouble down at the plant," Mather replied that "if the men down there in the plant seen fit, if he wasn't all right, and if he caused a lot of trouble down there, that it would be all right to take him out to the gate." The testimony of witnesses other than Mather shows that this meeting was not held primarily to formulate plans for the protection of the respondent's employees from loss of work caused by sit-down strikes but rather to prevent the organization of the respondent's employees by outside unions. According to Gulshin's testimony, Tesch told him that the purpose of this meeting and of establishing at the meeting an organization of the employees was "to keep them (the American Federation of Labor and the Committee for Industrial Organizations) out of the 4Matter of Pennsylvania Greyhound Lines, Inc, Greyhound Management Company, Corporations and Local Division No. 1063 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 1 N L R B 1, 7, decree for enforcement of the Board's order granted, National Labor Relations Board v Pennsyl- vania Greyhound Lines, Inc., and Greyhound Management Company, 303 U. S. 261 By the phrase "organization of some similar character," Mather must have been referring to an organization similar to that proposed at this meeting. WALWORTH COMPANY, INC. 1309 Walworth Company's plant as long as the boys didn't want them in there." Gulshin also disclosed to the employees at the meeting his approval of an inside organization of the employees and stated that outside labor organizations "always causes a lot of trouble and grief wherever they are at." Those present at this meeting organ- ized Workers' Protective Organization, herein referred to as the W. P. 0., and prepared the form of a membership card. Upon such card appeared the statement "I promise to protect myself, family and my job, and will oppose, forcibly, if necessary, any in- fluence contrary to them." Immediately after the meeting some of the men took the form to a printer and on the following day the cards were distributed in the plant. In the grey-iron depart- ment, one employee, William Skutnick, left his work to solicit em- ployees to sign the W. P. O. cards and was paid for the time spent circulating the cards. In addition to Tesch, one Girkin and C. E. Osborne, both employees of the respondent, were active in organizing the W. P. O. According to the testimony of Mather, foremen joined the organization. The evidence shows one instance of a foreman soliciting employees to join the W. P. O. Charles Blazier, an employee of the respondent, asked Gulshin what the word -"forcibly" appearing on the member- ship cards meant. Gulshin replied that "you have a right to in- fluence every man that you work with" and that he would like to have Blazier join the W. P. O. He also stated, among other things on this occasion, that Blazier's job was "certainly worth fighting to this extent : If a man ever comes in here and starts talking organized labor, why, the first time you warn him * * * If he continues to do it, why, the next time you get two or three of the boys' together and take him out of the gate." Although Gulshin did not testify with respect to this episode, he admitted on the stand during the hearing herein that he had taken an active part in the organization of the W. P. 0., and we find that Gulshin solicited Blazier to become a member of the W. P. O. in the manner indicated hereinabove. On a date subsequent to the initial organization meeting of the W. P. 0., a meeting of about 50 employees was held in the dining room in the respondent's basement under its office. The meeting lasted from 11 to 11: 30 and occurred during working hours. It does not appear that any foremen or supervisory employees were present at this meeting. Tesch distributed to those present some leaflets announcing a meeting of the W. P. O. to be held at the Kewanee High School on April 12, 1937. The leaflets stated that "The Workers' Protective Organization is a group of workers banded together for self protection," and that "its aim is to protect our- selves and our jobs against all outside radical influences such as are 1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD closing shops in other localities," and on such leaflets appeared the names of R. W. Tesch, C. E. Osborne, and W. H. Girkin. Cer- tain employees circulated the leaflets in the plant during working hours. Mather admitted that several W. P. O. committee meet- ings were held on the respondent's property and that employees who were called away from their work to attend these meetings were paid for the time which they spent at the meetings. Mather and a number of foremen attended the W. P. O. meeting at the Kewanee High School on April 12. At the outset, Tesch addressed those present, saying, among other things, that "all out- side unions were rats, and they were the cause of hardships among the workers; that the purposes for which the organization was to be formed was to keep all outside unions out." After Tesch finished speaking, he was elected president of the W. P. O. There- upon, Mather was asked certain questions by those present and went to the platform to reply. With respect to the W. P. 0., he stated that "he was glad to see the people getting together and trying to do something then; that he had no objection to collective bargain- ing, and that he thought the majority should rule instead of the minority." Mather was asked "if the organization found any men in the plant who were trying to interfere with the operation of the plant, if they removed them outside the gate, if there would be any complaint on the part of the company to doing that." Mather replied that "if the majority of the employees were in favor of doing that the company would cooperate with them to that extent." From the foregoing facts, it is plain that the W. P. O. was organ- ized with the open approval and active assistance of the respondent. Mather and Gulshin not only attended the initial organization meet- ing of the W. P. O. but addressed those present. Both men spoke with approval of the establishment of an inside organization of the respondent's employees such as the W. P. O. Gulshin admittedly was cognizant of the purpose of the W. P. O. to prevent organiza- tion of the respondent's employees by any outside union and in his talk to those present commended the purpose of the W. P. O. by condemning outside unions as sources of trouble. That the W. P. O. was an organization supported by the respondent was further indi- cated to the employees by the attendance of Mather and a number of foremen at the mass meeting of the W. P. O. held on April 12. In the light of Tesch's speech in which he vigorously attacked out- side unions as "rats" and reiterated that the purpose of the W. P. O. was to bar organization at the Kewanee plant by outside unions, Mather's subsequent statements at the meeting approving the organi- zation of the W. P. O. and expressing the respondent's willingness to permit, if desired by a majority of the respondent's employees, WALWORTH COMPANY, INC. 1311 the removal of anyone "outside the gate" who attempted "to inter- fere with the operation of the plant," clearly informed the employees of the respondent's unequivocal hostility against outside unions and of its firm determination to support the W. P. O. That the re- spondent's attitude was one of support and cooperation toward the W. P. O. and of hostility toward outside unions is further confirmed by Gulshin's effort to persuade Blazier to join the W. P. O. Al- though the record does not disclose who among the supervisory em- ployees became members of the W. P. 0., Mather admitted that foremen had joined the W. P. 0., and, as appears below, after April 12 when, the constitutionality of the Act was upheld by the Supreme Court of the United States, the respondent found it necessary to disassociate itself from the W. P. O. because "foremen and every- body else" had joined the W. P. O. It is plain that the respondent dominated, interfered with, and supported the formation and administration of the W. P. O. We now turn to the V. F. W. U. 2. The V. F. W. U. Shortly after the constitutionality of the Act was upheld by the Supreme Court of the United States on April 12, 1937, the respond- ent decided that the W. P. O. was not a suitable agency for collective bargaining, purportedly because foremen were members of the or- ganization. Mather notified Tesch through Edward W. Beckman, general superintendent of the respondent's Kewanee plant, that in view of the decision of the Supreme Court, the respondent could not bargain with the W. P. O. as the representative of its employees and that the employees would have to establish "a regular union organization" to bargain with the respondent on behalf of its em- ployees. The respondent, however, did not notify the generality of its employees of its disassociation from participation in the affairs of the W. P. O. and of its decision not to bargain collectively with the W. P. 0., purportedly on the ground that foremen were members of that organization. On or about April 26 or 27, 1937, certain employees of the re- spondent began to organize the Amalgamated. At the end of April or early in May 1937, an employee in the respondent's stock depart- ment, George Houser, circulated W. P. O. leaflets among the em- ployees in the stock department inviting "Walworth Employees only" to attend a meeting in the high school auditorium on the night of May 6, 1937. This occurred during working hours and in the presence of Subforeman Herman Zahan. This leaflet stated that: The Workers' Protective Organization was organized to com- bat any outside union that might attempt to come here and 1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD force itself upon us. Since that time the Wagner Labor Act has been approved by the Supreme Court, making it neccessary under the law to bargain collectively through some agency of the employees' choosing providing it represents a majority of the employees. This is an open invitation to some union to come in here and establish themselves as our agent. * * * Now the way to combat placing our fate in the hands of strangers from Chicago, New York, or somewhere else, is to organize our- selves into an independent union with officers from among our- selves, paying only our own necessary expenses but not paying to any upkeep and profit to a lot of overlords around the country. The leaflet further explained that the Act does not specify the kind of union which may qualify as a bargaining agency but requires that such an "agency shall be of the employees' own choosing and that any union so organized shall not be a company union subject to the company control or promotion." The V. F. W. U. was organized at the meeting of May 6 called by the W. P. O. Tesch explained to those present that the Act had been declared constitutional and that the employees had to join some union. He then suggested that "as long as the C. I. O. and the A. F. of L. are fighting one another" that the employees join an independent union and that when "the fight is all over" they might vote to enter a "bona fide union." A standing vote was then taken to determine how many men wished to'form a union, and the meeting ended. The record does not indicate in what manner or at what date officers of the V. F. W. U. were selected but Tesch served as president of the V. F. W. U. and one Walton M. Ostman, a clerk in the tapping department, served as secretary. Subsequent to the initial organization meeting of May 6, solicita- tion for membership in the V. F. W. U. was carried on by a number of employees, who served as organizers of the V. F. W. U., and some of this solicitation occurred during working hours, on company property, and in the presence of supervisory employees who took no action to stop it. The V. F. W. U. was organized by substantially the same group of men which had previously organized and been active in the W. P. O. Girkin testified that although he concealed his solicitation on be- half of the V. F. W. U. from foremen, he did this in the presence and with the knowledge of subforemen who did not in any way attempt to stop him. Trew Hoyt, a subforemen in charge of the grey-iron scratch room, in which department Girkin was employed, admitted in his testimony that he was aware of Girkin's activity WALWORTH COMPANY, INC. 1313 during working hours on behalf of the V. F. W. U. and testimony by witnesses of the respondent shows that Girkin had solicited Trew Hoyt, as well as Glenn Baughman, subforeman in the grey-iron room and other subforemen, to join the V. F. W. U. On one occasion in May 1937, a cardboard box was set up in the grey-iron scratch room while Trew Hoyt was present and watching. Girkin and two other employees distributed V. F. W. U. cards among the employees who were permitted to leave their work in order to sign the cards and place them in the cardboard box. Despite Girkin's denial that any meeting of the V. F. W. U. had been held on the respondent's property, it appears both from the testimony of Mather, works manager of the respondent's Kewanee plant, and from that of Raymond Dennis, an employee of the re- spondent, that one such meeting was held. At some time in May 1937, approximately 40 or 50 people attended a meeting of the V. F. W. U. held during working hours in the dining room at the respondent's main office for the purpose of increasing the member- ship of the V. F. W. U. Tesch gave each person present at the meeting a handbill which had been distributed at the Kewanee plant by the C. I. O. and to which was pinned a newspaper clipping de- scribing a strike in Detroit. Tesch, who presided at the meeting, in- structed those present to show the handbills Sand clippings to other employees "and explain what would happen in this plant (the re- spondent's Kewanee plant) if they became organized under that kind of a union." Subsequently, the respondent issued instructions for- bidding employees to hold any meetings of the V. F. W. U. on the respondent's time or during working hours except when committees met with officials of the respondent. A number of subforemen testified that they had joined the V. F. W. U., and the "Constitution and Bylaws" of V. F. W. U., although excluding from membership in V. F. W. U. "company officials and persons having the right to hire and discharge," provides that "any supervisor or leader shall be eligible for membership, unless he has the privilege of employing or discharging." 6 Thus Trew Hoyt joined the V. F. W. U. and, although not an active member, paid dues to this organization. Glenn Baughman, subforeman in the grey-iron room, became a member of the V. F. W. U. in May 1937 at Girkin's request. He paid dues and went to one of the meetings of the organization. Krumtinger, subforeman in the brass-packing department, also joined the V. F. W. U. and attended two meetings of this organization. As appears in Section III C below in con- nection with certain of the employees released by the respondent, both Baughman and Krumtinger on a few occasions actively assisted 6 Bd. Exb. No. 12, Section III. 1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the V. F. W. U. by urging certain employees subordinate to them to join this organization. Testimony relating to the duties performed by Hoyt, Baughman, and Krumtinger shows the following: Hoyt inspected the work produced by the men ,in his department and discussed the quality of their work with them . He reported unsatisfactory work to Roland Hill, foreman of the grey -iron foundry, and had the authority to recommend lay-offs to Hill. Baughman watched the quality of production by his subordinates and spoke to the men if their work was not satisfactory. He discussed with Hill the quality and amount of work performed by individual employees . When requested by Hill, he notified employees that they were to be laid off or discharged. He had the authority to transfer men to different jobs within the department. Referring to his transfer of one employee to a dif- ferent job than that upon which he had been working , Baughman testified that he "did it as a favor" to the employee . Krumtinger was in charge of the brass -room section of the stock department. Gulshin, foreman of the stock department , customarily discussed with Krumtinger the qualifications of employees in Krumtinger's section when it became necessary to lay off or discharge any employees. In recommending the dismissal or lay-off of employees and in dis- cussing with their respective foremen the qualifications of employees working under them, both Hoyt and Krumtinger exercised the au- thority of management. Their reports to the foremen concerning the qualifications of their subordinates necessarily influenced the decision of the foremen with respect to discharges and lay-offs, and this power and authority was granted to them by the respondent for the purpose of guiding foremen in making discharges and lay-offs. Neither Hoyt nor Krumtinger had the authority directly to hire or discharge. In a recent case however , we have stated : The existence or non-existence of this authority is not of itself determinative of the issue but is only one factor indicative of supervisory status. The fundamental criterion for the determi- nation of an employees' status as a supervisor is whether or not in the course of his duties he exercises the authority of man- agement over the employees under him.7 Although Baughman does not appear to have had the authority to either discharge or to recommend discharge , he did report to Hill 7 Matter of Humble Oil el Refining Company and Oil Workers International Union, Locals Nos. 333 and 316, 16 N. L It. B 112 See also Matter of Borden Mills, Inc., and Textile ZVorkers Organizing Committee, 13 N. L R B 459. WALWORTH COMPANY, INC. 1315 concerning the work of his subordinates. We have said previously that : An employee who has the power and duty of making reports about poor workmanship and misconduct of other employees necessarily influences decisions affecting discharges and lay-offs. It is he who must determine, in the first instance, whether any report should be made." Moreover, Baughman's transfer of men to different jobs within the department constituted the exercise of managerial authority vitally affecting the employees transferred. Upon the basis of the above facts, we find that Hoyt, Baughman, and Krumtinger were supervisory employees and that for this reason their conduct in joining and participating in the activities of the V. F. W. U. are attributable to the respondent. Moreover, under the circumstances of this case, which consist of open, aggressive hostility by the respondent to the Amalgamated and open, active sup- port for an inside buffer organization, these employees must be deemed to have acted on behalf of the respondent and the respondent must be deemed responsible for their s activities. For the same reasons, the solicitation, set forth in Section III C below, of certain employees to join the V. F. W. U. by Harvey Dunlap, head inspector in the tapping-inspection department, whose duties included, among other things, the checking, at the request of his foreman, Lindholm, of the work of the inspectors in this department, is attributable to the respondent. Negotiations between the respondent and the V. F. W. U. culmi- nated in an agreement dated July 8, 1937, which provided among other things, that the respondent recognize the V. F. W. U. "as the exclusive bargaining agency for the employees of the Corporation who are eligible to membership in the Union (the V. F. W. U.) and are employed in Kewanee Works * * *"; that the respondent would not discriminate against members of the V. F. W. U.; that "executives, foremen, supervisors and other similar representatives of the Corporation" be barred from membership in the V. F. W. U.; that the 8-hour day and 40-hour week be established with payment of time and a half for overtime, subject to certain qualifications; that "in all cases of promotion, increase or decrease of forces," the respondent consider (a) length of continuous service, (b) knowledge, 8 Matter of Borden Mills , The, and Textile Workers Organizing Committee , 13 N L R B 459. "International Association of Machinists, Tool and Die Makers Lodge No. 85, affiliated with the International Association of Machinists, and Production Lodge No 1 200, affiliated with the International Association of Machinists v. N. L. R. B., 311 U S. 72, aff' g Matter of The Herrick Corporation and International Union, United Automobile Workers of America, Local No 459, 8 N L R B 621 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD training, ability, skill, and efficiency, (c) physical fitness, (d) family status, and (e) place of residence; and that the agreement remain in effect until June 1, 1938. The agreement also established proce- dures for collective bargaining between the respondent and the V. F. W. U. and for determining the fairness of discharges made by the respondent, but further provided that if "any employee or group of employees upon whose work depends the continuation of work of other employees of the Corporation's Kewanee Works, suspend his or their work, or abandon his or their duties in violation of the terms of this agreement, he or they shall be subject to immediate discharge without reference to union representatives." The V. F. W. U. "Constitution and Bylaws," upon which appears the date March 1938, provides, among other things, that in addition to the officers, a council be elected from among the members of the V. F. W. U. to conduct collective bargaining ' on behalf of the V. F. W. U.; that for the consideration of "matters of mutual employee- company interest" requiring information, joint investigation commit- tees be established consisting of at least three councilmen and a number of members appointed by the respondent which may equal but not exceed the number of councilmen; that "any proposed amend- ment, alteration or repeal (of the Bylaws) pertaining to a provision affecting employee-company relations, shall first be referred to a joint investigation committee * * * for consideration"; that such committee shall report its findings to the V. F. W. U.; that "upon a two-thirds vote of the membership present at a regular meeting, the proposal shall be referred to the plant manager by the council"; that "the plant manager shall report his decision * * * to the coun- cil"; and that "if the council and the plant manager cannot reach an agreement, the matter may by mutual agreement be submitted to arbitration * * *." Sometime in March or April 1938, someone in the respondent's gen- eral office in New York City called to Mather's attention the above- mentioned provisions of the V. F. W. U. In a memorandum addressed to E. W. Beckman, general superintendent of the respond- ent's Kewanee plant, dated April 21, 1938, Mather informed Beck- man that the provisions in the V. F. W. U. constitution, requiring changes in such constitution and bylaws affecting "employee-company relation" to be referred to joint investigation committees and to the plant manager, conflicted with the Act, and he requested Beckman not to permit any "members of our organization" to take part in joint investigation committee meetings considering changes in the bylaws of the Union "and not to discuss" or suggest Rny change in the by- laws of this, or any other union. 'Beckman transmitted this letter to Tesch. WALWORTH COMPANY, INC. 1317 We have already found that the respondent dominated and inter- fered with the formation and administration of the W. P. 0. and contributed support to it, and we now consider whether the V. F. W. U. is a continuation of the W. P. 0., and whether the V. F. W. U. is capable of independently representing the employees' interest. In contrast to the respondent's public utterances to its employees of its approval of the W. P. 0., the only notification appearing in the record that the respondent could not bargain collectively with the W. P. 0. was contained in Mather's communication to Tesch. At some time after the Supreme Court upheld the constitutionality of the Act, Beckman, plant superintendent, also instructed the foremen not to interfere in the formation of any union in the plant or to discrim- inate against any employee because of his union affiliation. While no suggestion was made by the respondent at this time that an inde- pendent organization be formed to replace the W. P. 0., it does not appear that the respondent made any effort directly to apprise its employees of its dissociation from participation in union affairs. Nor did the respondent publicly disclaim its previously open hostility to affiliated labor organizations. Indeed, the new V. F. W. U. was organized under the aegis of its company-dominated predecessor, the W. P. 0. It was a leaflet of the W. P. 0. which announced the meeting of May 6 at which the V. F. W. U. was organized. The avowed purpose of forming the new organization was identical with the purpose for which the W. P. 0. had been formed and which the respondent had openly approved, namely, to organize "into an inde- pendent union" so as "to combat placing our fate in the hands of strangers from Chicago, New York or somewhere else." Tesch, presi- dent of the W. P. 0., appears as the leading figure at the meeting and he explained to those present the purpose of the meeting. Tesch also became president of the V. F. W. U. and, as previously stated, the organizers of the V. F. W. U. consisted of essentially the same group of employees which, with the approval and assistance of the respondent, had organized the W. P. 0. From the foregoing, it is clear that the V. F. W. U. was not a new and truly independent organization different in purpose from the W. P. 0. but rather a continuation and reorganization of the W. P. 0. under a new name. Organized as it was at a meeting of the W. P. 0. and by men who had actively participated as officers and organizers of the W. P. O., the V. F. W. U. was not dissociated in the minds of the employees from the company-dominated W. P. 0.10 The fact 10 See International Association of Machinists, Tool and Die Makers Lodge No. 35, affiliated with the Jute, national Association of Machinists, and Production Lodge No 1200, affiliated with the International Association of Machinists V N L R B, 311 U S 72, aff'g Matter of The derrick Corporation and International Union, United Automobile Workers of America, Local No Ii59, 8 N L R B 621. 28 40 3 2-4 1-col 21-84 ] 3^ g' DECISIONS OF NATIONAL LABOR RELATIONS BOARD that as late as March or April 1938 the V. F. W. U. constitution and bylaws provided for participation by the respondent in the amend- ment, alteration, or repeal of any provision therein "affecting em- ployee-company relations" plainly shows that the V. F. W. U. was not free of the respondent. Moreover, the respondent, although to a lesser degree, gave some active assistance and encouragement to the V. F. W. U. As we have already described, some solicitation on behalf of the V. F. W. U. occurred on company property, during working hours, and in the prc~ence of supervisory employees. One organization meeting of the V. F. W. U. was held in the respondent's dining room at which _ printed material was distributed disparaging the Committee for In- dustrial Organization as an agency which caused strikes. And as we have seen, certain lesser supervisory employees were eligible to membership in the V. F. W. U. and, in fact, did join that organiza- tion. The organization of the V. F. W. U. under the aegis of the company-dominated W. P. 0., coupled with the respondent's as- sistance to the V. F. W. U. and the membership of certain super- visory employees in the V. F. W. U., made it abundantly clear to the employees that the respondent favored and encouraged organi- zation of its employees by the V. F. W. U. rather than by an affiliated labor union. Under such circumstances, it is plain that the V. F. W. U. was not chosen by the employees free of the respondent's inter- ference and domination. Upon the basis of the entire record, we find that the respondent has dominated and interfered with the formation and administration of and contributed support to, the V. F. W. U. and is continuing to dominate, interfere with, and support the V. F. W. U.; and that the respondent has thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act." 11 See National Labor Relations Board v Biown Paper Mill Company, Inc, 108 F (2d) 867 (C C A 5th), enf'g Matter of Brown Paper Mill Company, Inc Monroe, Louisiana and International Brotherhood of Paper Makers, affiliated south the American Federation of Labor, 12 N L R. B 60 In this case the Court said: The act does not compel employees to affiliate themselves with existing national or other unions or associations, nor does it prevent them from forming truly independent local associations of their own. But it does flatly prevent and pro- hibit the formation of associations of employees for bargaining, which, though they are ostensibly independent, are really supported, controlled or influenced though ever so slightly, by the management. The statute recognizes two parties to a labor bargaining compact It requires that the employees in bargaining be completely independent of the employer so that in the bargaining, labor will be represented by persons or organizations having only its interest in mind, and - acting wholly uninfluenced by fear or favor, of or from the management. There- fore, when once it appears that management has had a hand in organizing, sup- porting or in any wise interfering or collaborating with an "association" of WALWORTH COMPANY, INC. C. The discharges 1319 The complaint, as amended at the hearing, alleges that on various dates between March 27, 1937, and February 17, 1938, the respondent discriminatorily discharged 38 employees 12 The respondent claims that these employees, with the exception of Lucius Brody, were not discharged but were laid off because of necessary curtailment in pro- duction, and that in selecting men to be laid off, it utilized the fol- lowing criteria: (a) length of service with the respondent; 13 (b) knowledge, training, and ability of the individual; (c) physical fit- ness; (d) domestic responsibilities; and (e) place of residence. How- ever, it is plain from the record, and we find, that certain foremen and other supervisory employees whose duty it was to lay off or dis- charge employees or to make recommendation for the release of em- ployees did not use and did not know what the various factors were which the respondent claims it considered in selecting employees to be released. The respondent does not contend that the persons named in complaint were inefficient but rather that their efficiency, consid- ered with the other afore-mentioned factors, was less than that of other employees retained in similar positions. Between May 1 and December -31, 1937, 132 employees had been discharged or laid off and 17 new employees hired. As previously indicated, organization on behalf of the Amalgam- ated began on or about April 26 or 27, 1937. Counsel for the Board stated at the hearing, and in its brief the respondent accepted such statement as a stipulation, that by June 1937 the Amalgamated had 200 members, by November 1, 1937, 400 members, and by June 1, 1938, its membership had increased to a total of 630 out of approximately 1,500 employees. With the exception of Anton Kubelius, Julius Cole- berg, and Ralph Murphy, each of whom was discharged prior to the initial organization of the Amalgamated, all employees alleged in the complaint, as amended, to have been discriminatorily discharged were members of the Amalgamated at the time of their alleged discrimina- tory discharges. The record does not indicate what proportion of all the employees laid off or discharged during 1937, or any period thereof, belonged to the Amalgamated. employees , such an association may not be recognized as the free and voluntary association of employees called for in the Act Also see National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Company, 308 U S 241 ( 1939), and National Labor Relations Board v The Falk Cor- poration, 308.U S 453 (1940) At the hearing, the Trial Examiner dismissed the complaint with respect to four of the men as to whom no evidence was introduced From the testimony of Charles Lindholm , the foreman of the inspection and blank stock departments , it appears that the criterion used was length of service with the respondent rather , than length of service in the particular department in which the employee was working at the time of his release. 1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In his Intermediate Report, the Trial Examiner found that 18 per- sons named in the complaint, as amended, had been discharged because of their membership in and activities on behalf of the Amal- gamated and/or their refusal to join the V. F. W. U. As to the remaining 16 persons, he recommended that the allegations of the complaint be dismissed 14 We find that the record does not support the allegations of the complaint in respect to these 16 men and con- cur in the Trial Examiner's recommendation that the complaint be dismissed as to them. Since the Amalgamated did not file exceptions to the Intermediate Report, we will not discuss the alleged discrimi- nation as to the 16 men in detail. We turn to a consideration of the circumstances surrounding the alleged discharge of each of the remaining employees named in the complaint. The Pattern Department-Anton Kubelius, Julius Coleberg, and Ralph Murphy. The complaint alleges that on March 27, 1937, the respondent discharged Anton Kubelius, Julius Coleberg, and Ralph Murphy because they "engaged in concerted activities with other employees ... for the purposes of collective bargaining and other mutual aid and protection." The Trial Examiner found that Kubelius was laid' off and Coleberg and Murphy discharged on March 27, 1937, because of "their collective action in asking for a wage raise." In January 1937, the pay-roll hours of employment numbered 3189.1 in the metal-pattern section, subsequently increased to the peak of 4198.9 which occurred in March, decreased in April and May, increased slightly in June, and decreased each month during the re- mainder of 1937. The number of pay-roll hours of employment, how- ever, did not decrease below the January figure of 3189.1 until Sep- tember. In February 1937, the respondent hired three new men in the metal-pattern section who had not been previously employed by the respondent in 1937.15 A graph introduced in evidence as part of Respondent's Exhibit No. 3 setting forth the total plant production during 1937, the hours of employment in the pattern department, and the number of persons employed in the metal-pattern and wood-pat- tern sections, shows that the respondent's plant reached a peak of 2600 tons of production on or about April 1, 1937, and that thereafter production decreased to a low of about 900 tons in December 1937. However, after March 27, 1937, there was no further decrease in the number of persons employed in the metal-pattern section. 14 These persons were Ralph Heston, Ennas Otis, Peter Skrinski, Anton Kelly, Rollin Snider, James D. Green, August R. Callewyn, Stanley Korzypski, Charles Kazanovich, Fred Fairfield, Harold Brose , Walter Pence, Ralph Hartshorn, Leo Jackowicz, Peter Douglas, and Charles Widger. 15 In Respondent's Exhibit No. 6, the work of 2 of these men, Woodland L. Woodward and Ralph E. Tucker, is described as "drier bench " The type of work performed by the third man is not disclosed. WALWORTH COMPANY, INC. 1321 Anton Kubelius, Julius Colebergg, and Ralph Murphy each worked in the metal-pattern section of the pattern department. On March 22, 1937, certain employees in the metal-pattern section, including Murphy, prepared a petition reciting that those signing the petition believed that their hourly rates of pay were lower than the rates received by other employees doing similar work and requesting that they "be given a 10 per cent increase, in addition to the increase an- nounced at the Conference Committee on March 16, 1937." All the employees in the metal-pattern section, except the apprentices who were not asked to sign the petition, placed their signatures on the petition. Murphy's was the top signature on the petition. Murphy then laid the petition upon the desk of Walter C. Ewalt, the fore- man of the pattern department. On Saturday, March 27, 1937, Ewalt sent the wood-pattern makers in groups of five or six and then the metal-pattern makers and apprentices in similarly sized groups to see Beckman, general superintendent. In the last group were included Kubelius, Coleberg, Murphy, another employee, one Charles Harler, and an apprentice, one Charles Majewski. Ewalt was also present. Beckman read the petition and then told the men that in view of the respondent's financial condition, it could grant raises to the pattern makers only by laying off three men and dividing the money thus saved among the remaining employees in the form of raises. Harler replied that he would prefer to have the petition torn up rather than that some men be laid off to enable the respondent to increase the wages of the remaining employees. There is some con- flict in the record as to Beckman's answer. Kubelius and Coleberg testified that Beckman replied : "It don't make any difference. You asked for a raise and that's what you are going to get." According to the testimony of Beckman and Ewalt, Beckman did not make this reply, but told Harler and the other men present that there was not sufficient work to justify retaining all the men employed in the metal-pattern section so that it was necessary to lay off some men whether or not a wage increase was granted. Murphy did not recall Beckman making the statement attributed to Beckman by Kubelius and Coleberg. The Trial Examiner, who saw the witnesses, found that Beckman did say that "you have asked for a raise and now you are going to get it," and we concur in this finding of the Trial Exam- iner. At one time during the conference Murphy stated that Ewalt had expressed to two or three employees, including Murphy, his belief that the metal-pattern makers should be paid higher wages and that there existed a considerable differential between the maxi- mum wages paid to the wood-pattern men and those paid to the metal-pattern men. At none of these conferences did Beckman name the men who were to be laid off. About 12: 00 noon, at the end of the day's work, Ewalt notified each of the three men separately that 1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was laid off. Coleberg testified that in releasing him, Ewalt made the following statement to him : "Furthermore, you shouldn't have signed the petition because you are on the conference committee." 16 Ewalt denied this. We concur, however, in the finding of the Trial Examiner, who saw the witnesses, that Ewalt made this statement to Coleberg when notifying him that he was to be released. The re- spondent did not thereafter hire any new persons or transfer any persons from other departments to take the place of the three men released on March 27, 1937. It was testified on behalf of the respondent that for 2 months prior to the presentation of the petition by the metal-pattern makers, work had been slackening in the pattern department, and that during this period Beckman had considered the necessity of laying off some employees; 17 that on March 27, 1937, when speaking to the last group of employees, which included Kubelius, Coleberg, and Murphy, Beckman knew that he would have to lay off two and possibly three employees; that prior to the conference on March 27, Ewalt had suggested to Beckman the names of Kubelius and Coleberg as em- ployees whom he could spare if a reduction of force was necessary; and that after the last conference on March 27, Beckman and Ewalt had discussed the qualifications of the various men in the metal- pattern section and, as recommended by Ewalt, decided to lay off Kubelius, Coleberg, and Murphy. Kubelius entered the respondent's employ in 1921 and worked continuously in the Kewanee plant until March 27, 1937. Prior to his employment in the pattern department, he was employed as a core maker in the core room. In 1925, he was transferred -to the metal-pattern shop where he remained for 12 years until March 27, 1937. In the metal-pattern shop, Kubelius was first employed at grinding dryers. He was then transferred to the job of gating patterns, and apprentices took his place at grinding dryers. About 1 year prior to the date of his release by the respondent, he was given the work of setting patterns which he continued until March 27, 1937, when he was released, and apprentices were given his previous work of gating patterns."' At the time of his lay-off, two of the men gating patterns, Rodgers and Fortman, had been engaged in this work for a year or two. Ewalt admitted at the hearing in this proceeding that he had men grinding dryers and gating patterns whose work was no better than that of Kubelius and that "probably" 16 It will be recalled that the petition requested a wage increase in addition to an in- crease which had been announced at the "Conference Committee" on March 16, 1937 17It will be recalled , however, that during this period, in February 1937, less than 2 months before the release of Kubelius, Coleberg, and Murphy, the respondent hired three new persons in the metal-pattern department. 180n Respondent's Exhibit 5, Kubelius' work at the time of his lay-off is described as "bench." WALWORTH COMPANY, INC. 1323 these men entered the department after Kubelius. Kubelius testified without contradiction, and we find, that about half the men in the metal-pattern section had less seniority than he had. Kubelius was not a member of the Amalgamated at the time of his release. In 1920, however, he had been a member of the American Federation of Labor and participated in a strike then called. Some- time in 1936 after the Supreme Court of the United States had declared the National Industrial Recovery Act unconstitutional, a fellow employee asked Kubelius to sign a petition requesting the respondent to increase the hours of employment. Kubelius refused to sign the petition. On the following day, Kubelius was called to Beckman's office. Beckman read the petition to Kubelius and said, "I am glad that the employees in the pattern shop are cooperating and are willing to work more time while we have plenty of work." Referring to another employee, one Miner, who had not signed this petition, Beckman continued, "This fellow Ed Miner, if he don't want to work, why, he don't have to." After some further colloquy, the conversation ended. Coleberg and Murphy were also among those who did not sign the petition for longer hours. Between March 27 and April 28, 1937, Kubelius twice asked Beckman about the likelihood of his reemployment by the respondent and was each time informed that there was no work available. On April 28, 1937, he filed charges with the Board.19 In July 1937 Griggs, the respondent's employment manager, notified Kubelius' wife that Beckman wanted to see him. Beckman told Kubelius that a job was available for him in the tool-making department. When Kubelius said that he was not a tool maker, Beckman replied, "You can try it, can't you?" On July 26, 1937, Kubelius was re- employed by the respondent and was working in the tool-making department at the time of the hearing in this proceeding. The respondent's explanation as to the basis of its selection of Kubelius for lay-off during this period of curtailment in production is as follows : Ewalt admitted that Kubelius' work at grinding dryers and gating patterns was satisfactory. His 'work, however, setting patterns, in which he was engaged at the time of his release, was only average, although he should have done better at this job in view of his long experience as an employee in the metal-pattern shop. Ewalt did not transfer Kubelius back to any of his previous jobs of grinding dryers or gating patterns for the reason that Kubelius was receiving a higher rate of pay than that given in such other jobs; and that Ewalt preferred to lay him off rather than employ him at a lower rate of pay than that which he had been receiving. Moreover, he preferred to lay off the higher paid men ' Coleberg and Murphy joined Kubel-ius in filing these charges with the Board. 1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rather than those paid less in order to comply with Beckman's instructions to cut expenses. Although the respondent had previously employed Coleberg, his last period of continuous employment with the respondent began on August 6, 1928. Except for a brief period of work in the steel- finishing department, Coleberg spent his entire period of employment with the respondent working in the metal-pattern shop. During his employment in the metal-pattern shop, he worked as a lathe hand or machinist making repairs and working on pattern-core boxes.20 Four other lathe men were employed in the shop to do the same work as that done by Coleberg, and it appears from Cole- berg's testimony that three of these had more seniority than he had and the record contains no evidence with respect to the fourth -lathe hand. The only persons employed in the department • whom the record shows had less seniority were the apprentices and one Miner who did work different from that done by Coleberg. At. the time of the hearing in this proceeding, Coleberg had not been reemployed by the respondent. Ewalt's only explanation for the selection of Coleberg for lay-off was that "he was the ... one that I needed the least," and that he was not a pattern maker but a machinist. Murphy had been in the respondent's employ for 21 years prior to March 27, 1937, with the exception of 6 months' leave of absence, and he was a metal pattern bench worker.21 According to Murphy's testimony, there were about seven employees in the metal-pattern shop who had been employed a longer period of time in the shop than Murphy. Of the remaining, some, such as Kubelius, may have tiransferred to the metal-pattern, shop from other departments. Murphy joined neither the W. P. O. nor the V. F. W. U. He had not been reemployed by the respondent at the time of the hearing in this proceeding. Ewalt testified that although Murphy was one of five or six men of almost equal ability, Ewalt selected him to be laid off because he was a little bit slower than the others. In testifying concerning Murphy's lay-off, Ewalt also stated on direct examination by counsel for the respondent that "there were other things that entered into that, and if I don't have to tell what it was, why, I don't want to." The significance of the statement was not explained. The discharge of the three men occurred immediately prior to the time when the respondent had embarked upon its course of active assistance to the W. P. 0., whose purpose was to keep out affiliated organizations even at the expense of forcibly excluding employees from the • plant if necessary, thereby attempting to confine its em- 20 In Respondent Exhibit No 5, Coleberg's work is described as "bench and lathe."' 11 In Respondent's Exhibit No. 6, Murphy's work is described as "bench " WALWORTH COMPANY, INC. 1325 ployees' desires for collective bargaining to the W. P. 0. or to some similar unaffiliated labor organization under its control. By his state- ment on March 27, 1937, to the group of pattern makers, which included Kubelius, Coleberg, and r Murphy, that the men had asked: for a raise in wages and now they were going to, get it, Beckman revealed his antagonism and a spirit of vindictiveness against the men grounded upon their conduct in preparing and presenting the collective request of the metal-pattern section for a raise in wages. Moreover, Ewalt when discharging Coleberg indicated his, and there- fore the respondent's, preference for the then existing employee representation plan as an agency for collective bargaining by telling Coleberg that he was a member of the conference committee, plainly indicating the respondent's disapproval of the independent collective action of the employees in the pattern section. It is clear from these remarks of Beckman and Ewalt that the respondent looked with, disfavor -upon, the conduct of, the metal-pattern makers in presenting the petition and that although it may have been necessary to lay off some of the men because of a reduction in the amount of work available in the metal-pattern section, Beckman's decision to lay off some men was 'strengthened by his irritation at their collective activity and by his determination to visit retribution upon certain of the men as an example to all the employees in the pattern depart- ment because of their collective activity in presenting the petition. Moreover, all three men discharged on March 27, 1937, had previously incurred Beckman's displeasure. As hereinbefore indicated, these three men were among those who at some time in 1936, the year prior to their discharge, had refused to sign the petition requesting the respondent to increase the hours of employment. The refusal to sign this petition was of sufficient importance so that Beckman took the trouble to comment to Kubelius with approval on those who signed the petition and with a contrasting disapproval on an em- ployee who had refused to sign such petition. To some extent Murphy was prominent as a participant in the incident involving the presentation to Beckman of the petition requesting an increase in wages of the metal-pattern workers in that his was the top signa- ture on such petition. We also note that although the peak during 1937 in the number of hours of employment in the pattern depart- ment occurred in March of that year and thereafter the monthly number of hours of employment decreased, not until September did the number of hours of employment fall below 3189.1, the number for January 1937, a time when Kubelius, Coleberg, and Murphy were all employed by the respondent in its metal-pattern section. More- over, exhibits introduced into the record by the respondent show that only 2 months or 6 weeks prior to the discharge of the three meal the respondent hired three new persons to work in the metal-pattern 1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD section. When the respondent reduced the number of employees in that section at the end of March 1937, it retained these new men in its employ and released Kubelius, Coleberg, and Murphy, all of whom had been in its employ for a long period of years. The respondent gave no explanation for its retention of three recently hired em- ployees in preference to three employees having long service records with the respondent. • Under all the circumstances, we find that Kubelius, Coleberg, and Murphy were released because of their action in signing the petition requesting the respondent to raise the wage rates of the employees in the metal-pattern department. By releasing Kubelius, Coleberg, and Murphy because they engaged in concerted activity for the purpose of collective bargaining and other mutual aid and protection, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, there- by engaging in an unfair labor practice within the meaning of Sec- tion 8' (1) of the Act.22 In addition, a release for that reason discourages concerted activity for the purposes of collective bargain- ing and has the effect of discouraging the formation of and member- ship in a labor organization, which is the customary instrument utilized by employees to achieve collective bargaining, and constitutes an unfair labor practice within the meaning of Section 8 (3) of the Act. At the time of their release, Kubelius, Coleberg, and Murphy, were earning, respectively, about $30, $25, and $31 per week. Between the date of his discharge and the time of the hearing in this proceeding, Coleberg's total earnings amounted to $1,387. Certain expenses occasioned by moving and rent reduce this figure to a net sum of $988. At the work which Coleberg was doing at the time of the hearing in this proceeding and which he had done since March 8, 1938, he was receiving $52.50 per month, room and board. Between the date of their release and the time of the hearing in the proceeding, Kubelius and Murphy had earned, respectively, $158.50 and about $1,100. 'At the end of April 1937, Murphy obtained employment at another factory located in Gary, Indiana, at a wage rate of 95 cents per hour which was substantially larger than the hourly rate of about 65 cents which he received prior to his release by the respondent. In the ex- pectation that'his new work was permanent, Murphy moved from Kewanee to Gary. His job consisted of machine-shop work and was different from that in which he was engaged when employed by the respondent. On November 1, 1937, Murphy was laid off from this job 22 Matter of Stehli and Co., Inc. and Textile Workers Uthon of Lancaster, Pennsylvania, and Vicinity, Local #133, 11 N. L R B. 1397, Matter of Indianapolis (hove Company and Amalgamated Clothing Workers of America, Local No. 145, 5 N L R B 231. WALWORTH COMPANY, INC. 1327 because of a reduction in the amount of work available. He desires to return to the employ of the respondent. The respondent contends that Murphy had obtained substantially equivalent employment else- where and, therefore, had lost his status as an employee of the respondent. While we do not concede that the obtaining of other and substantially equivalent employment would deprive the Board of the power to reinstate an individual who had been discharged for union activity, it should be noted that Murphy was not employed at the time of the hearing. We find that, since Murphy had been employed elsewhere for only about 6 months, since he was not employed at the time of the hearing, since the work then was different from that in which he was engaged when working for the respondent, and since he desires to be reemployed by the respondent, he had not obtained regular and equivalent employment and did not lose his status as an employee of the respondent. The Grey-Iron Foundry-The complaint alleges that on various dates between June 28, 1937, and on November 20, 1937, the respond- ent discharged nine men employed in its grey-iron foundry because of their membership in and activity on behalf of the Amalgamated and/or their refusal to join the V. F. W. U. In his Intermediate Report the Trial Examiner found that five of these men, namely, Albert Hamilton, John Trussen, Finley DeLos Lay, Dewey Debord, and Oliver Costenson, had been discriminatorily discharged, and as to the other four men recommended that the complaint be dismissed.23 During the first 4 months of 1937, pay-roll hours of employment in- creased to a peak of 43,708.5 and then decreased the following 2 months. Thereafter another increase occurred which reached the maximum number of 36,585.1 pay-roll hours in August. Each of the remaining months in 1937 and the first 4 months of 1938 marked a further decrease in pay-roll hours of employment. On May 1, 1937, the grey-iron department had 226 men on its pay roll. From Respondent's Exhibit No. 5, introduced in evidence by the respondent and described at the hearing by Beckman as contain- ing the names of employees "laid off or discharged during 1937," it appears that two employees were laid off or discharged in the grey- iron foundry prior to July 31, 1937, and only a total of four were laid off or discharged prior to September 1, 1937. In August, the respondent began to operate a machine known as the "No. 16 machine" which necessitated the hiring of 10 or 12 men who were added to the pay roll of August 21. On October 1, 1937, the respondent ceased operating the No. 16 machine and nine men were released at that time. Thereafter employment in the grey-iron foundry diminished so that by January 1, 1938, only 206 persons were employed therein. .23 These four men are Ralph Heston, Ennas Otis, Peter Skrinski, and Anton Kelly. 1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We turn to a consideration of the alleged discriminatory discharges in the grey-iron foundry. - Albert Hamilton was employed by the respondent from June 1936 until June 28, 1937. He worked ' this entire time in the grey-iron foundry as a common laborer and floor man for the molders,24 except for a few days when he worked on the conveyor in the core room. At the time of his discharge, Hamilton was unmarried and 23 years of age. He joined the Amalgamated at the end of April 1937 and was elected recording secretary in the early part of May. He wore a C. I. O. button in the plant from the early part of June 1937 to the time of his release, and frequently spoke about the Amalgamated in the plant. On June 28, 1937, Baughman notified Hamilton that he was to be laid off since work was slack, and that the respondent was laying off the single men with the least seniority and retaining married men with more experience. He told Hamilton, however, that, his work was satisfactory. Another employee in the grey-iron foundry, one Donald Brennan, an arcade operator, was laid off at the same time as Hamilton. One Ivan Kelly, who had been in the respondent's employ for approximately 4 or 5 months, and one, Van Dierendonk, who had been slightly longer in the respondent's employ, both continued to work for the respondent although neither had been an employee of the respondent for as long a period as Hamilton. Both these men were unmarried and both were members of the Amalgamated, although neither was an active member or wore his Amalgamated button in the respondent's plant. Kelly was younger in age than Hamilton, and Van Dierendonk was about the same age as Hamilton. 26 Moreover, as stated above, in August 1937 the respondent hired 10 or 12 new men in the grey-iron foundry. In determining whether the respondent discharged Hamilton be- cause of his membership in and activity on behalf of the Amalgam- ated, the respondent's attitude toward, and conduct in relation to, outside labor unions and to the W. P. O. and the V. F. W. U. must be considered. The hostility toward outside unions shown by the respondent prior to the passage of the Act was again openly and aggressively manifested after the passage of the Act, although in a less violent manner. Either in March or early in April 1937, the W. P. O. was formed with the open approval of Mather, works manager of the respondent's Kewanee plant and one of the highest ranking officials in that plant, and of Gulshin, foreman of the re- spondent's stockhouse. Admittedly the purpose of the W. P. O. 42 On Respondent Exhibit No 5, Hamilton ' s occupation is designated as "dump flasks" u Respondent's Exhibit Nos. 5 and 6 indicate that one Raphael Fleming was newly hired on April 22, 1937 , and that his name was taken off the pay roll on November 20, 1937. WALWORTH COMPANY, INC. 1329 was to prevent the organization of the respondent's employees by out- side labor unions, and Mather, both at the initial organization meet- ing of the W. P. O. and at the. W. P. O. meeting of April 12, 1937, openly disclosed his approval of the W. P. O. and its purposes and his antagonism against outside unions. At the meeting on April 12 in reply to a question, he assured the employees of the re- spondent's tolerance and cooperation if they desired to remove men from the plant "who were trying to interfere with the operation of the plant"-an answer reminiscent of the methods utilized by the respondent in 1933 and suggesting the resumption of such methods. Thus the passage of the Act did not affect the respondent's attitude toward outside unions or its firm determination to prevent the or- ganization of its employees by such unions. And even after the Su- preme Court upheld the constitutionality of the Act on April 12, 1937, the respondent steadfastly maintained this determination to block the organization of its employees and utilized as its instrumen- tality the V. F. W. U. Thus, with this record of persistent hostility against outside unions, at a time of curtailment in production, the respondent released Hamilton, an employee prominent in the Amal- gamated because of his position as recording secretary thereof, and in preference to him retained as employees in the grey-iron foundry two men, both unmarried and both inactive members of the Amalgam- ated, who had been employed by the respondent for a shorter period of time than Hamilton. Moreover, although subsequently in August 1937, when new machinery was installed in the grey-iron foundry, the respondent hired between 10 and 12 new employees in that de- partment, there is no evidence that at any time it sought to reemploy Hamilton. In view of the respondent's persistent antagonism to- ward outside unions, of its retention in preference to Hamilton, with- out any explanation at the hearing in this proceeding, of employees in the grey-iron foundry who had worked at its plant for a shorter period of time than Hamilton, and of its hiring subsequent to the termination of Hamilton's employment of approximately 10 or 12 new men in the grey-iron foundry, it is a reasonable inference that, consistently with its persistently hostile conduct toward outside labor unions, the respondent released Hamilton on June 28, 1937, because of his membership in and activity on behalf of the Amalgamated. Moreover, Hamilton also testified as follows concerning Baugh- man, the supervisor who notified hiin of his release : On the day following Hamilton's election as recording secretary of the Amal- gamated, Baughman asked Hamilton which employees had attended the meetings of the Amalgamated and what took place at such meetings. Hamilton declined to answer. Baughman said that he had "a fellow further down the line" who gave him this information, but he wished to check up on him. On one occasion prior to this 1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD incident, Baughman asked Hamilton during working hours what he thought about labor organizations. Hamilton replied, among other things, that every man had "a right to his own mind." On an- other occasion, Baughman told Hamilton that everybody should join the V. F. W. U.26 At the hearing Baughman denied having made the above remarks attributed to him by Hamilton. In view, how- ever, of the respondent's hostility toward outside unions and of the assistance which, it gave to the V. F. W. U., and in view of the fact that the Trial Examiner, who saw the witnesses, found that Baugh- man made the statements, we find that the above-mentioned incidents occurred as testified to by Hamilton. We find that the respondent released Hamilton on June 28, 1937, because of his membership in and activity on behalf of the Amal- gamated. At the time of his discharge, Hamilton was earning an average of approximately $25 per week. He has since earned $128.75. John Trussen had worked intermittently for the respondent prior to March 28, 1924, when he was laid off. On April 21, 1926, he resumed his employment with the respondent and worked contin- uously until September 28, 1937, the date of his release. Trussen's occupation was that of a chipper and he had engaged in this work in the grey iron scratch room of the grey-iron department for most of the last 11 years of his employment. Trussen was one of the first of the respondent's employees to join the Amalgamated. He became a member on April 28, 1937, and thereafter actively solicited fellow employees to join the Amalgam- ated. He was elected to the office of guide. For an undetermined period of time, Trussen wore his Amalgamated button in the re- spondent's plant. Although asked several times to join the, V. F. W. U., Trussen never became a member thereof. At the hearing herein, his subforeman, Trew Hoyt, admitted that he knew of Trus- sen's membership in the Amalgamated, but denied that he had re- ported this to Hill or to anyone else. Hill testified that he did not know of Trussen's labor affiliations when he released him and that his membership in the Amalgamated was not considered in determin- ing who should be laid off. In view of the respondent's antagonism toward outside unions, Subforeman Hoyt's knowledge of Trussen's membership, and the ease with which it could obtain knowledge of Trussen's membership in the Amalgamated, both because of Trus- sen's prominence in it and his wearing of the Amalgamated button 20 On this occasion, Baughman also stated that the respondent was opposed to the V. F. W. U. to the same extent that it was opposed to other labor organizations. WALWORTH COMPANY, INC. 1331 in the plant, we do not credit Hill's denial of any knowledge concerning Trussen's membership in the Amalgamated. On September 28, 1937, Trussen was released from his employ- went with the respondent. Hill notified Trussen that he was lay- ing him off because the respondent was shutting down some of its machines in the grey-iron foundry and that he was laying Trussen off "for reasons which I (Hill) thought was for the good of my de- partment and the good of the Company." When Trussen asked why he was being laid off, Hill replied that there had been complaints about his work. Prior to his discharge, three employees, Currier, Jack Lee, and Swerington, had intermittently assisted Trussen as helpers in his job of chipping. After he was laid off, Currier 27 and one Hicks, who had worked in the foundry as a molder, took his place chipping. Hicks had not been a chipper prior to this. Both Currier and Hicks had been employed by the respondent for a shorter period of time than Trussen. Currier belonged to the Amalgamated, but was not active therein. In his testimony, Hill admitted that a number of chippers were retained who had been employed by the respondent for a shorter period of time than Trussen. The respondent, however, contended that when it became necessary to reduce the number of employees because of slack work, Trussen was selected to be laid off because during the year immediately preceding his release, there had been several complaints about his work as a chipper. Hoyt testified, among other things, that although Trussen was an experienced chipper, during the last year of his employment the quality of his work had greatly deteriorated, and that on several occasions he had spoken to Trussen about the character of his work. Hill's testimony was in substantial agreement with that of Hoyt. Al- though Trussen admitted that some of his work had been sent back for rechipping, he further testified that "everybody had' some work to do over again" and that only on one occasion during the year prior to his discharge, had Hoyt spoken to him about the need for rechip- ping. Trussen also testified that very little or no work was sent back for rechipping when he alone was chipping but that the complaints arose when he was assisted by helpers. What we have'said in connection with the discharge of Hamilton concerning the respondent's hostility toward outside unions likewise applies in the case of Trussen. Like Hamilton, Trussen was promi= nent in the Amalgamated and an officer thereof and, as in Hamilton's case, other men were retained in the grey-iron department in prefer- ence to Trussen who had been employed by the respondent for a shorter period of time than Trussen and approximately 14 of whom had been newly hired only about 6 weeks prior to the termination of 2; Curlier was also employed as an inspector of fittings 1332 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD Trussen's employment. Indeed, Hicks and Currier, who after Trus- sen's release continued to do such chipping as there was to be done, had both been in the respondent's employ for a shorter period of time than Trussen, and Currier had worked as Trussen's helper. More- over, in view of Trussen's 11 years of service with the respondent as a chipper, it is difficult to believe that during the last year of his employment his work became unsatisfactory to the extent indicated by the respondent or that, if during such period of his employment Trussen's work had been of the poor quality asserted by Hill and Ho , t, the respondent would have waited for approximately 1 year before terminating his employment. Under these circumstances, it is a reasonable inference that in terminating Trussen's employment, the respondent was motivated by Trussen's union activity rather than by the unsatisfactory character of his work. Trussen also attributed to Hoyt certain remarks which, if made by Hoyt, compel a finding that respondent laid off Trussen because of his membership and activity in the Amalgamated. According to Trussen's testimony, a few weeks prior to September 28, 1937, Trew Hoyt approached him at his work bench and told him that he wished that Trussen would "drop the union" because he (Trussen) might be laid, off if,he -did, not do- so, and, that it would be-difficult .to replace Trussen. Hoyt denied that he had ever made such remarks to Trussen. In view of Hoyt's knowledge of Trussen's membership in the Amalga- mated, the respondent's known antagonism against outside unions, and the finding of the Trial Examiner that Hoyt warned Trussen in the manner set forth above, we credit Trussen's testimony with respect to this- incident and find that Hoyt made, in substance, the remarks at- tributed to him by Trussen. We find that Trussen was released on September 28, 1937, because of his membership in and activity on behalf of the Amalgamated. At the time of his release Trussen was earning an average of about $40 per week. From the date of his discharge on September 28, 1937, until the time of the hearing in this proceeding, Trussen earned a total of $103.60. Finley DeLos Lay was in the respondent's employ from October 1935 to October 25, 1937, and during that entire period worked in the grey-iron foundry under the supervision of Glenn Baughman, sub- foreman, and Roland Hill, foreman. Lay was first employed for a period of about 6 weeks to dump, flasks on the arcade floor, then he wheeled sand for a few weeks, and subsequently, shovelled sand for the arcade machine. Following this, he dumped on the arcade floor, and from January 1936, to October 25, 1937, he operated an arcade molding machine. There is also evidence that 3 or 4 months prior to his release on October 25, 1937, Baughman transferred Lay from WALWORTH COMPANY, INC. 1333 his job running the molding machine to dumping on the Pridmore floor and that subsequently upon Lay's request, Baughman retrans- ferred him to his previous work on the machine.28 On April 28, 1937, Lay became a member of the Amalgamated and took a very active part in soliciting employees to join such organiza- tion. Although he did not organize on behalf of the Amalgamated during working hours, he solicited employees in the respondent's plant during his lunch hour. For at least some time during July 1937, he wore an Amalgamated button. According to the testimony of Lay, sometime in May 1937, he told Baughman, with whom he was on friendly terms'29 that he was a member of the Amalgamated. Both Baughman and Hill denied that they had any knowledge, at the time of Lay's release on October 25, 1937, of his membership in the Amalgamated. In view of the respondent's record of active opposi- tion to outside unions, and the ease with which it could obtain knowl- edge of the membership in the Amalgamated of those employees who were most active in such organization, we do not credit the denials by Baughman and Hill of any knowledge concerning Lay's mem- bership in the Amalgamated. A fellow employee, one Heinie Lamb, asked Lay to join the V. F. W. U. but Lay refused to do so. Subse- quently, in July 1937, Lay, in order to see whether Baughman would permit him to become a, member of the V. F. W. U. during working hours, while he (Lay) was working at his machine in the grey-iron foundry, told Baughman that he wished to become a member of the V. F. W. U. Baughman went away and when he returned told Lay that a man would shortly ask him to sign a V. F. W. U. membership card. Walter Girken then appeared and "signed up" DeLos Lay. The testimony of Baughman, with respect to this incident, substan- tiates that of Lay. On October 25, 1937, just prior to the beginning of the shift on which Lay worked, Baughman notified him that he was to be laid off. Thereafter, however, the respondent continued to employ men in its grey-iron foundry who had worked a shorter period of time for it than Lay. There is conflict in the testimony as to the nature of Baughman's remarks to Lay at the time when he notified him of his lay-off. 'Lay testified that Baughman told him that he was "fired" and that "they had spotters all over the plant, knew every- one of us fellows that went up to them meetings and that they were going to sift them all out." According to Lay's testimony, Baugh- man also stated that "he had another fellow down there he had to go down and lay off that same morning." Baughman testified that upon, instructions from Hill, he told Lay that "he was being laid 28 In Respondent's Exhibit No 5, Lay's work is described as "arcade operator " 29 Baughman testified that he was no more friendly with Lay than "with the rest of the boys." 2 83 0 3 2-41-v of 21-85 1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD off to take care of an older and a more valuable man" and that the lay-off was permanent so far as Baughman knew. Baughman de- nied having made the remarks attributed to him by Lay that the respondent had spotters in its plant and was going to sift out members of the Amalgamated. In view of our findings above that Baughman asked Hamilton to tell him which employees had at- tended Amalgamated meetings and that he had an employee who was giving him such information, and in view of the finding of the Trial Examiner that Baughman made the statement about "spot- ters," we find that in notifying Lay of the termination of his em- ployment, Baughman made the remarks attributed to him by Lay. For the same reasons, we credit Lay's, rather than Baughman's, ver- sion of a conversation which occurred on May 1, 1938, and which related to the afore-mentioned remarks made by Baughman when he terminated Lay's employment with the. respondent. Lay testified that on May 1, 1938, he met Baughman at a dance at Eagle's Hall in Kewanee and that Baughman told him, among other things, that he had put him (Baughman) "on the spot" and that Lay had repeated to others something which he (Baughman) had mentioned to Lay in confidence. Baughman testified that he had upbraided Lay for putting hint "on the spot"' by making charges against him to agents of the Board, but denied that he had accused Lay of re- peating statements made in confidence. As indicated above, we be- lieve, and so find, that Baughman made the remarks attributed to him by Lay. This conversation between Baughman and Lay oc- curred at some time after Baughman's foreman, Hill, informed Baughman that Lay had spoken to agents of the Board concerning Baughman's remark to Lay about spotters. In view of this and in the absence of any other reasonable alternative explanation of this con- versation, we find that Baughman's reference to remarks made by him in confidence related to the statements made to Lay at the time when his employment with the respondent was terminated. The respondent contended that it selected Lay to be laid off be- cause in operating his machine his scrap losses had been gradually increasing and production decreasing. Hill testified that at his direction Baughman had warned Lay about the inferior quality of his work and that although Lay's scrap losses should not have exceeded 31/2 and 4 per cent on the type of work which he was doing, during the third quarter of 1937 his scrap losses amounted to 9.47 per cent. Baughman's testimony was in substantial accord with that of Hill and he added that DeLos Lay was the least capable of the men operating the machine called "light 1018 frame." Lay, al- though admitting that Baughman had on a few occasions told him that his scrap losses were too great, further testified that such com- plaints related to weekly periods and not to his general average, WALWORTH COMPANY, INC. 1335 and that during some weeks his average of scrap losses was higher than that of other men and during other weeks it was lower. What we have stated in connection with Trussen likewise applies to Lay. In view of the respondent's antagonism toward outside unions, of its retention in its employ of newly hired men in prefer- ence to Lay, of Lay's activity in the Amalgamated, and of Baugh- man's remarks to Lay when releasing him, we believe. and find, that Lay was discharged on October 25, 1937, because of his membership in and activity on behalf of the Amalgamated rather than, as con- tended by the respondent, because of the unsatisfactory character of his work. At the time of his discharge, Lay was only working 3 days a week and earned approximately $12.25 per week . When working full time, he earned $23.40 a week. From the date of his release on October 25, 1937, until the time of the hearing in this proceeding, Lay earned the total of $266.17. His expenses, traveling 40 miles a day to and from a coal mine in which he worked part of the time since his release, amounted to $44. Dewey Bedford Debord's total employment with the respondent amounted on two separate occasions to somewhat more than a year. His last period of employment with the respondent began on March 24, 1937. He had first worked under one Barney Cody wheeling cores for machines 10 and 11. For the 2 weeks immediately preceding his lay-off, Debord ' was working for Glenn Baughman .30 Debord became a member of the Amalgamated in May 1937, and solicited his fellow employees to join this organization . He did not wear his Amalgamated button in the plant but had, however , worn it else- where when in the company of Barney Cody and Baughman. Al- though asked to join the V. F. W. U., Debord never did so. The respondent did not introduce any testimony directly relating to Debord, but in its brief contended that the record did not show that it had any knowledge of Debord 's labor affiliations . Debord's activity in the Amalgamated and his wearing of the Amalgamated button in the presence of Baughman and Cody, coupled with the respondent's active hostility toward outside unions, sufficiently establish that the respondent, through its supervisory employees, knew of Debord's membership in the Amalgamated, and we so find. Moreover, that Baughman knew of Debord's membership in the Amalgamated ap- pears from the circumstances surrounding his notification to Debord that he was to be released. On October 25, 1937, immediately after he had released Lay and told him, as set forth above, that the respondent was going "to sift ... out" employees attending meetings of the Amalgamated and 30 Respondent's Exhibits Nos 5 and G variously describe the work pei toimed by Debord at different tines as catching flasks, working on ovens, and foundry labor 1336 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD that "he had another fellow down there he had to go down and lay off that same morning," Baughman told Debord that he had been instructed to lay him off and that he was "bringing in older men from other departments to do the job, to do the work in here." In view of the fact that Baughman's notification to Debord that he was to be laid off followed immediately upon the afore -mentioned remarks which we have found lie made to Lay, we conclude that in these remarks, Baughman referred to Debord and to his intention imme- diately to release Debord because of his membership in and activity on behalf of the Amalgamated. After the termination of Debord's employment on October 25, 1937, the respondent continued to employ several men in the grey-iron foundry who had worked for the respondent for a shorter period of time than Debord. Baughman 's statement to Lay concerning Debord, the respondent's retention in its employ of men who had worked for it a shorter period of time than Debord, and its anti-union bias, establish that the re- spondent released Debord because of his membership in and activity on behalf of the Amalgamated , and we so find. At the time of his release, Debord was only working 3 days a ,week and earned approximately $13 per week. When working full time, he earned about $25 or $26 per week. From the date of his release on October 25, 1937, until the time of the hearing in this proceeding, Debord earned a total of $36.56. Oliver Costenson. During Costenson's entire period of employ- ment with the respondent from March 23 to November 30, 1937, he worked in the grey-iron foundry. At the time of his release, he was pouring iron on the arcade floor under the supervision of Thomas L. McGrath, a subforeman in the grey-iron foundry. During his employment with the respondent previous to his job of pouring iron, Costenson had "pulled the bull" and had performed at different times almost every job in the cupola. He was not married. On or about April 28, 1937, Costenson joined the Amalgamated and became active therein, attending meetings and obtaining members. He wore his Amalgamated button in the plant for an undetermined period of time. Both Hill and McGrath denied that they had any knowledge of his membership in the Amalgamated . Although Costenson had been asked to join the V. F. W. U., he never became a member thereof. On November 30, 1937, McGrath told Costenson that it was neces- sary to reduce the number of employees in the department and that he had to lay off single men and retain married men . The respond- ent contended that Hill and McGrath had discussed which men it would be necessary to lay off as "the least valuable to the company" and that they selected for lay-off Costenson who had worked only a short time in the grey-iron foundry and "didn't prove to be much of WALWORTH COMPANY, INC. 1337 a pourer." No one was hired or transferred into the grey-iron foundry to take Costenson's place but another employee, one Sas- cenawitch, who had been pulling the bull in the department, took Costenson's job of pouring after the latter left the respondent's em- ploy. The record does not disclose the length of time during which Sascenawitch was in the respondent's employ. As previously indi- cated, the respondent had hired several new men after April 1, 1937, a number of whom were retained in the -respondent's employ after Costenson was laid off. In view of Costenson's short period of service with the respondent, we find that the record does not support the allegation of the com- plaint that the respondent discharged Costenson because of his membership in and activity on behalf of the Amalgamated and/or his refusal to join the V. F. W. U.' Packing and Stocklaouse Department.-The complaint alleges that the respondent discharged the following three men employed in the packing and stockhouse department because of their membership in and activity on behalf of the Amalgamated and/or their refusal to join the V. F. W. U.: Peter Dolieslager, on May 28, 1937; Rollin Snider, on June 1, 1937; and Charles Blazier, on July 24, 1937. In his Intermediate Report, the Trial Examiner found that Peter Dolie- slager and Charles Blazier had been discriminatorily discharged, but, as hereinbefore indicated, recommended that the complaint be dismissed with respect to Rollin Snider. During the months of May, June, and July in which the employ- ment of Dolieslager, Blazier, and Snider was terminated, there was a reduction from 29,030.7 to 16,852.3 in the number of pay-roll hours of work in the packing and stockhouse department and further re- duction took place during the remainder of 1937 except in the month of October, when a slight rise occurred. The number of persons employed in the packing and stockhouse departments increased from 104 employed on January 1, 1937 to 128 employed on May 1, 1937. During May, the number of employees on the department pay roll was reduced to 126; during June to 118; and during July to 101. For the remainder of 1937, further reductions continued until December 28, 1937, when there were only 87 employees on the department pay roll. William A. Gulshin, whose activities in connection with V. F. W. U. we have already set forth above, was foreman of the packing and stockhouse department. His subforemen were Frank Krumtinger, who was in charge of brass packing, and Herbert Zahan. Krum- tinger's membership in the V. F. W. U. has also been discussed hereinbefore. Peter Dolieslager first worked for the respondent in April 1929. He was laid off on four different occasions prior to 1931 because of 1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a slackening in the volume of work. His last period of continuous employment with the respondent began on September 24, 1935, and lasted until May 28, 1937. During this last period of employment, Dolieslager worked in different parts of the packing and stockhouse department and at the time of his lay-off he was employed as a packer. On April 28, 1937, Dolieslager became a member of the Amalgamated and solicited fellow employees to join the organization, but was not an officer thereof. Both Gulshin and Krumtinger denied knowing that Dolieslager was a member of the Amalgamated. There is sharp conflict in the testimony concerning Gulshin's and Krumtinger's knowledge of Dolieslager's union affiliation. According to the testi- mony of Dolieslager, in the middle of May 1937, Krumtinger, for whom Dolieslager occasionally worked, told him that he was the only one in the brass-packing section who had not joined the V. F. W. U.; that he was putting Krumtinger "on the spot" ; that if Dolieslager did not join the V. F. W. U., he (Dolieslager) "would probably be out the gate with the rest of the guys looking for a job"; that he signed up to please Krumtinger who was continuously bothering him about this. Krumtinger denied making such a statement to Dolie- slager or persuading him in joining the V. F. W. U. Several em- ployees in the department had previously asked Dolieslager to join the V. F. W. U. but he had refused to do so: Dolieslager also testified that Krumtinger had told him from time to time that the respondent did not want to have anything to do with the Amalgamated; that Krumtinger favored the Amalgamated; "but that he couldn't advise anyone because he was a boss." Krumtinger denied that he had ever cautioned or spoken to Dolieslager about the Amalgamated and his activities therein. Another employee, Charles Blazier, whose employ- ment was terminated on July 24, 1937, and whose release we consider hereinafter, also attributed to Krumtinger certain remarks disclosing his and Gulshin's knowledge of Dolieslager's membership in the Amalgamated. He testified that about 11/2 months before July 24, 1937, on which date his employment was terminated, Krumtinger, with whom he was on friendly terms, told him, among other things, that Gulshin had given him "a tip" that Blazier and Dolieslager would be laid off if they did not stop their activities in the Amalgam- ated.sl Gulshin denied that he had given Krumtinger "a tip" that Dolieslager would be laid off if he did not stop his union activities. Krumtinger denied that he had ever discussed the labor activities of the respondent's employees with Gulshin or that he had, on any occasion, made such statements as those attributed to him by Blazier, "The contents of these remarks attributed to Krumtinger , which we find above in the text were made, disclose that they must have been made prior to May 27, 1937 , the date when Dolleslager's employment with the, respondent was terminated . We find that the incident at which these remarks were made occurred at some time prior to May 27, 1937 WALWORTH COMPANY, INC. 1339 Despite the denials of Krumtinger and Gulshin, we concur in the findings of the Trial Examiner, who saw the witnesses, that Krumtinger made the above statements attributed to him by Dolies- lager. In so finding, we also rely upon the respondent's aggressive hostility toward outside unions. As heretofore indicated, Gulshin, foreman of the packing and stockhouse department, was among the most active of the supervisory employees in promoting the W. P. O. and speaking against outside unions. In view of these statements attributed to Krumtinger and in view of the respondent's concern with respect to the organization of its employees as reflected in these statements and in its course of conduct relating to the W. P. O. and the V. F. W. U., we find that Gulshin and Krumtinger both had knowledge of Dolieslager's union affiliations. On May 27, 1937, Dolieslager asked Gulshin if he might be trans- ferred to some lighter work in the brass-packing section if any open- ing occurred there. Gulshin replied that he would give Dolieslager "a break." On the following day, Subforeman Herman Zahan told Dolieslager that he had been instructed to lay him off and that Gul- shin had told him that the rest might do Dolieslager some good since he had an injured back 32 He also told Dolieslager to ask Griggs if there were 'any other work. For several days, Dolieslager went to Griggs' office. He again spoke to Gulshin who told him that he would call Dolieslager if any work were available but that "it looks pretty bad right now." Two other employees in the packing and stockhouse department, neither of whom was named in the complaint as having been dis- criminatorily discharged, were laid off at the same time as Dolieslager. No new men were hired in the department after Dolieslager's lay-off. After the termination of Dolieslager's employment, the respondent continued to retain in its employ in the packing and stockhouse de- partment four persons who had worked a shorter time for the re- spondent than Dolieslager. All except one of these men were mem- bers of the Amalgamated. None was active in that organization. That Dolieslager's refusal for, a time to join the V. F. W. U. and his activity in the Amalgamated was a source of concern to the re- spondent is illustrated by Krumtinger's repeated solicitation of Dolieslager to become a member of the V. F. W. U. and by his re- marks to Blazier warning him that Blazier and Dolieslager would be laid off unless they ceased their activities on behalf of the Amal- gamated. In view of these remarks of Krumtinger, consistent as they are with the respondent's anti-union attitude and Gulshin's activi- ties, and in view of the respondent's retention in its employ in prefer- 32 In 1934, Dolieslager had injured his back in a motorcycle accident. Except for his request to Gulshin on May 27, 1937, Dolieslager had never asked to be transferred to lighter work because of his back injury. 1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ence to Dolieslager of other men who had worked for the respondent for a shorter period of time, we find that the respondent released Dolieslager on May 28, 1937, because of his membership in and activity on behalf of the Amalgamated. At the time of his release, Dolieslager was earning approximately $21 or $22 per week. Between the date of his release and the time of the hearing in this proceeding, he earned a total of $620. Charles Blazier-Blazier's periods of employment with the re- spondent are as follows : Temporary employment on inventory in November 1926; October 1927 for 1 month; April 1928 to August 1930; September 1930 to September 1934, when Blazier was absent for 1 month because of a back injury which he received playing football; and finally from October 1934 to July 24, 1937. During his last period of employment with the respondent, Blazier worked with- out ever being laid off because of the depression. He was, however, occasionally absent from work because of his back injury. Late in April 1937, Blazier became a member of the Amalgamated and a week later he was elected its vice president. He actively solicited employees to join the Amalgamated. As previously indicated in Section III B, Gulshin had asked Blazier to become a member of the W. P. O. and had spoken to him of his own and of Mather's animosity toward "organized labor." Both Gulshin and Krumtinger knew that he was an officer of the Amalgamated. ' As hereinbefore indicated, sometime before May 27, 1937, Krum- tinger told Blazier that Gulshin had given him "a tip" that Blazier and Dolieslager would be laid off if they did not stop their activities on behalf of the Amalgamated. According to Blazier's testimony, Krumtinger on this occasion further said that he would try to straighten it out with Gulshin if Blazier ceased his activities on behalf of the Amalgamated. Blazier further testified that about a month after this incident, Krumtinger repeated this warning to him but did not mention Dolieslager's name again and that he replied to Krumtinger that he "was going through with it." Gulshin denied that he had given Krumtinger "a tip" that Blazier would be laid off if he did not stop his union activities. Krumtinger denied that he had ever discussed the labor activities of the respondent's employees with Gulshin or that he had, on any occasion, made such statements to Blazier as those attributed to him by Blazier. For reasons ap- pearing hereinbefore in our discussion of such of the afore-mentioned remarks as relate to Dolieslager, we find that on these two occasions, Krumtinger made the statements attributed to him by Blazier. Krumtinger also testified that sometime in June 1937, while talking at the "Visitation School," he told Blazier and a few other men that he would have nothing to do with any union and that he thought "that a married man was foolish to monkey around with anything WALWORTH COMPANY, INC. 1341 like that." Thus from Krumtinger's own testimony, it appears that he made deprecatory remarks about outside unions to certain em- ployees and, in substance, warned them of the risk which they assumed in joining the Amalgamated. On Saturday July 24, 1937, Blazier's foreman, Herman Zahan, notified Blazier that he had to liy him off because the volume of work had lessened and asked him not to harbor any "hard feelings" against hint since "it comes from the higher ups." Blazier testified, and this was not denied by Zahan, that Zahan further told him that although Blazier had been absent from work a great deal because of his in- jury, he had worked steadily for the last 3 months and that he (Zahan) did not understand why Blazier had been laid off. Three other men employed in the department were released from the depart- ment at the same time as Blazier.33 On the following Monday, how- ever, two of the men 34 received work in other of the respondent's departments.35 Briggs, however, told Blazier, who came both on Monday and Tuesday looking for work, that there was no work ,available and that he would notify Blazier in case he needed any one. When questioned by Blazier whether he had been laid off because of his activity in the Amalgamated, Griggs replied that he did not believe that this had anything to do with his lay-off. No new men were hired or transferred from any other department to take Blazier's place. At the hearing in the proceeding, Guishin admitted that four or five other employees of the department who were retained after Blazier's lay-off, and who were doing the same kind of work as Blazier, had been in the respondent's employ for a shorter period of time than Blazier and that Blazier was able to do the work in which about 15 other employees were engaged who had also been in the respondent's employ for a shorter period of time than Blazier. The respondent contended that when the volume of business de- clined and it became necessary to lay off employees, Gulshin and Zahan selected Blazier to be laid off because his attendance record had been poor, and, with a reduced force, it became necessary to retain men who could be depended upon to be present at their work. Gulshin and Zahan both admitted that Blazier's work was satis- factory when he came to work. Zahan further testified that he found it necessary to reprimand Blazier a number of times because of his irregularities with respect to attendance. As heretofore indi- 31 The names of these men were Francis Daniels , Denby Davis , and Kenneth Riggs. $4 Francis Daniels and Denby Davis. 3' That these two men were transferred to other departments rather than laid off or discharged is indicated by the fact that only the name of Kenneth Riggs appears on Re- spondent's Exhibit No. 5, which lists all persons laid off or discharged during 1937, with the notation that his name was taken off the pay roll on August 21, 1937 , because of a reduction in the number of persons employed by the respondent 1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cated, Blazier was occasionally absent from work because of his in- jured back. Blazier, however, denied that anyone had spoken to him about his absences with the exception of Gulshin who had sug- gested to him that because of his injury, he should not work steadily. At the time of his lay-off on July 24, 1937, Blazier was physically able to do his work. We have previously discussed the respondent's antagonism toward outside unions and Gulshin's prominent role in the respondent's ef- fort to establish an unaffiliated union and thereby prevent the organ- ization of its employees by an outside union. Krumtinger's remarks to Blazier that Gulshin intended to lay Blazier and Dolieslager off if they did not cease their activities on behalf of the Amalgamated clearly shows that Blazier's union activities were a subject of grave concern to the respondent. In view of the respondent's antagonism against the Amalgamated and in view of Krumtinger's statements to Blazier warning him of his impending dismissal if he did not cease his union activity, we do not believe that Blazier's occasional absences from work constituted the reason for his lay-off. Although, as here- inbefore indicated, Blazier on occasion was absent from work because of his back injury, we believe that the respondent utilized such ab- sences from work as an excuse to rid itself of an employee who was prominent as vice president of the Amalgamated. In reaching the conclusion, we also consider Blazier's uncontradicted statement that when notifying him of his lay-off, Zahan expressed his bewilderment that Blazier had been laid off, inasmuch as within the 3-month period preceding the termination of his employment he had worked steadily and had not found it necessary to absent himself from his work. Upon the basis of all the evidence, we find that Blazier was re- leased on July 24, 1937, because of his membership in and activity on behalf of the Amalgamated. At the time of his release, Blazier was earning an average of approximately $25.50 per week. Between the date of his release and the time of the hearing in this proceeding, he earned approximately $300. Tapping Inspection and Blank Stock Departments.-The complaint alleges that on September 30, 1937, the respondent discharged Neal E. Bunce, James D. Green, and Joe Skutnick, all employed in the tap- ping inspection and blank stock departments, because of their mem- bership in and activity on behalf of the Amalgamated and/or their refusal to join the V. F. W. U. In his Intermediate Report, the Trial Examiner found that Neal E. Bunce and Joseph Skutnick were discriminatorily discharged, but recommended that the complaint be dismissed with respect to James D. Green. A fourth man, one John WALWORTH COMPANY, INC. 1343 Ptasnik, employed to wash galvanized fittings, was also laid off on September 30, 1937. The complaint, however, did not allege that he had been laid off or discharged because of union membership or activity. Charles Lindholm was the foreman of these departments. Leslie Gleason was subforeman of the tapping inspection department and Harry Funk was subforeman of the blank stock department. Evidence introduced by the respondent indicates that during 1937, the greatest number of pay-roll hours of employment in the tapping inspection department 36 occurred in March. From the peak of 9631.4 pay-roll hours in that month, there was a decrease to 8315.0 pay-roll hours in May. After an increase to 9470.5 pay-roll hours in June, the number of hours of employment declined markedly for each month in the remainder of the year until December when there were only 3142.2 pay-roll hours of employment. During June 1937, the tapping inspection department 37 had 51 employees on its pay roll. In September the number of employees had been reduced to 49 and by November to 46. Neal E. Bunce had first been employed by the respondent in 1919 and worked intermittently for it until September 30, 1937. His last period of continuous employment with the respondent was from May 1933 until September 30, 1937. During the entire period, he worked in the tapping inspection department under Foreman Charles Lindholm. His first job was to carry off on the scales. Shortly thereafter he was given the work of washing galvanized fittings. At his request, Lindholm later gave him the higher paid job of inspector which he held for a 3-month period ending 3 or 4 weeks prior to his lay-off on September 30, 1937, when he was again sent back to wash galvanized fittings. He remained at this work until his lay-off on September 30, 1937. Occasionally, he had also done the work of loading pans on trucks. Although during the 4 years of Bunce's last period of continuous employment with the respondent, men had been laid off in the inspection department because of curtailment in operations, Bunce was never affected and continued working throughout this period without any lay-offs. On or about April 30, 1937, Bunce joined the Amalgamated and became active in its affairs. He persuaded a number of employees to join the Amalgamated and 2 or 3 nights each week for a period of time, he accompanied one Nass, president of the Amalgamated, on his visits to employees to solicit them to join the Amalgamated. He attended meetings of the Amalgamated and for a time wore an Amalgamated button in the respondent's plant. He was not, how- 89 The exhibit from which the above data were obtained does not include data concerning the blank stock department. 87 'Again the exhibit from which the data in the above paragraph were obtained includes only the tapping inspection department and not the blank stock department. 1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, an officer of this organization. Although Lindholm denied having any knowledge concerning Bunce's labor affiliations, in view of the respondent's determination to prevent the organization of its employees by outside unions and of the ease with which it could learn of Bunce's membership in the Amalgamated because of his activity therein, we find that Lindholm, and therefore the respond- ent, had knowledge of Bunce's membership in the Amalgamated. While Bunce was working as an inspector, Dunlap, who checked the work of other inspectors and for whose activities in connection with employee organization we have found the !respondent to be re- sponsible, in Section III B, above, told Bunce that he understood "the C. I. O. is coming to town" and "we want to get the jump on the skunks, and run them out," and urged Bunce to join the V. F. W. U. After Dunlap had asked Bunce several times to be- come a member thereof, Bunce finally acquiesced and signed a membership card. He was not active in V. F. W. U. and although Dunlap asked him to pay dues in the V. F. W. U. until a date about 3 weeks prior to the termination of Bunce's employment with the respondent, Bunce never paid the dues. On September 30, 1937, Lindholm told Bunce and some other em- ployees that he was sorry but that he had been instructed to lay Bunce off because of lack of work, and that Bunce might see Griggs and receive his pay. According to Bunce's testimony, when he asked Lindholm why he was being laid off in view of his long period of employment in the department, Lindholm replied that Bunce should not ask any questions and that "the less you say, the better off you are." Although Lindholm denied making this statement, in view of the finding of the Trial Examiner, who saw the witnesses, that Lindholm made this statement and of testimony by one Skutnick, another person whose employment with the respondent was termi- nated on September 30, 1937, that Lindholm had made the same statement to him, we find that Lindholm's remarks on this occasion were substantially as attributed to him by Bunce. After Bunce was released, seven men were retained in the depart- ment who were engaged in performing work which Bunce had done or was able to do and who had been in the respondent's employ for a shorter period of time than Bunce. Some of these men were members of the Amalgamated, but none of them were as active as Bunce. Two of the seven men, Charles Hankins and one Damzalski, were included in the crew of four men with whom Bunce worked washing galvanized fittings prior to his discharge.38 Two others, Louis Ziegler and Clarence Lange, loaded pans on trucks, a job as The fourth , man washing fittings, Anton Pietauk, had been in the respondent's employ for a longer period of time than Bunce. WALWORTH COMPANY, INC. 1345 which Bunce had once done. Of the three remaining employees in the group of seven which had been in the respondent's employ for a shorter period of"time than Bunce, one Barnes was identified by name. Lindholm testified that Bunce's work as an inspector had been un- satisfactory in that he could not see fine defects in the work and that for this reason Bunce had been retransferred to the job of washing fittings. He further testified that when Bunce was laid off, he was the poorest workman in the department . Bunce testi- fied that during his 3 months' work as inspector , he had received no complaints about his work until approximately 2 weeks before he was transferred back again to his previous job of washing galvanized fittings. He added that although he worked together with another inspector , one Harry Hamilton, so that one could not tell who was responsible for the defective work upon which Lind- holm based his complaints , nevertheless, Lindholm always upbraided him about the defective castings and finally retransferred him to the job of washing fittings. Lindholm testified with respect to the men who had worked for the respondent a shorter period of time than Bunce that although Bunce's most recent period of continuous employment with the respondent exceeded that of Hankins , that-Hankins had been in the respondent's employ for a total of more than 8 years while that of Bunce only amounted to about 4 years; that Hankins was able to do work, such as air-test fittings, which Bunce was tenable to do; and that Hankins "knew the product much better" so that he could do various jobs in the plant which Bunce could not do. With respect to Damzalski , Lindholm testified that he knew the size of the ma- terials better than Bunce ; that he did better work than Bunce be- cause he did not mix up the fittings as badly as Bunce. Lindholm further testified that he had cautioned Bunce at some undetermined time, about his work in connection with washing fittings. With respect to Louis Ziegler and Clarence Lange, Lindholm testified that he retained these men in preference to- Bunce because he thought that they were more efficient and steadier workers than Bunce. For reasons similar to those set forth above with respect to other employees whom the respondent released, we believe that the respond- ent released Bunce because of his membership in the Amalgamated and not, as contended by the respondent , because of the quality of the work. In Bunce's department, Dunlap reflected the respondent's atti- tude toward the Amalgamated and the respondent's purpose to confine its employees' desires for collective bargaining to an agency subject to its domination and control . That Bunce finally after repeated solici- 1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tation by Dunlap became a member of the V. F. W. U. does not of itself show lack of motive on the part of the respondent to rid itself of Bunce discriminatorily. The respondent through Dunlap was aware of Bunce's reluctance to join the V. F. W. U. and his subsequent refusal to pay any dues to this organization or be otherwise active therein. We have previously found that the respondent knew of Bunce's membership in and activity on behalf of the Amalgamated. We also note that during the last 4 years of his employment with the respondent, Bunce had never been laid off because of slack work although other men had been laid off for this reason. This would seem to show that in his work in the department, Bunce was a better- than-average workman and, therefore, to refute Lindholm's testimony that at the time when Bunce's employment was terminated, he was the poorest workman in the department. Moreover, Lindholm's statement to Bunce, when terminating his employment, that "the less you say, the better off you are," cannot be explained on the supposition that Bunce was laid off as the least satisfactory employee in the de- partment when it became necessary to reduce the number of persons employed because of a decline in the volume of work. Lindholm would not be expected to make such a remark unless he found it neces- sary to conceal information concerning Bunce's discharge. Upon the basis of all the evidence, we find that on September 30, 1937, the respondent released Bunce because of his membership in and activity on behalf of the Amalgamated. At the time of his release, Bunce was earning between $19 and $22 per week. Between the date of his release and the time of the hearing in this proceeding, he earned approximately $80. Joseph Skutnick. Skutnick was employed by the respondent in various departments from 1929 to September 30, 1937. Within that period, he had been laid off several times because of curtailment in operations. At some time, he had worked in the scratch room of the grey-iron foundry. He also had worked washing fittings in the tap- ping inspection department and taught Bunce that job. Subsequently he was transferred to the job of inspector which he held from 1933 until his lay-off on September 30, 1937. Sometime in May 1937, he joined the Amalgamated and helped Nass in obtaining members for this organization. -Before he joined the Amalgamated, Dunlap asked Skutnick during working hours to join the V. F. W. U. saying, "We want to get strong enough so we can run the rats out of town, the C. I. 0. bunch is coming in, and we want to run the rats out of town." Although Lindholm denied having any knowledge concerning Skut- nick's labor affiliations, for the same reasons as those appearing in the case of Bunce, we find that Lindholm, and therefore the respondent, had knowledge of Skutnick's membership in the Amalgamated. WALWORTH COMPANY, INC. 1347 On September 30, 1937, Lindholm laid off Skutnick, saying to the group which was being laid off that work was "getting slack" and that he had been instructed to lay off Skutnick and the others. Skutnick testified that when he told Lindholm that he had been in the respond- ent's employ for a longer period of time than other employees, Lind- holm replied that the less the men said about it the better off they would be. Although Lindholm denied making this statement, for the same reasons upon which we based our finding that Lindhohn made such a statement to Bunce, we find that he made this remark to Skut- nick. On the 3 days following his lay-off, Skutnick went to the respondent's employment office in search of a job. Each time he was told "nothing doing today," and so he discontinued his visits to the employment office. Skutnick was the' only one of the men released at this time who was then working as an inspector. Approximately six inspectors who were doing the same kind of work as Skutnick and who had been in the respondent's employ for a shorter period of time than he had, were retained after his release. All except one of these had joined the V. F. W. U. and none of them was a member of the Amalgamated. Lindholm testified that he had to reduce the number of inspectors because of lack of work and that inasmuch as Skutnick had been responsible for the overlooking of defects, he selected him to be laid off rather than any of the others in the department. Lindholm fur- ther testified that there had always been complaints about Skutnick's work as inspector but that these had increased at some time prior to his lay-off; that Skutnick had been warned about the complaints; that there had been two such complaints during the week of September 20, 1937; that although there were complaints about the work of other men there were more concerning Skutnick's work than that of any of his fellow employees; and that he did not think of putting Skutnick on any other work because inspecting was higher priced work. Skut- nick admitted that he made mistakes ; that there had been complaints about his work; that during the week preceding the termination of his employment, some one had discussed these complaints with him; and that on one occasion, he had argued with someone in the plant about a complaint which he received because at that time more than one man was doing this type of work, so that the particular error could not be attributed to him. He testified further, however, that all of the inspectors received complaints. As in the case of Bunce, the respondent's hostility to the Amalgamated and its desire to keep it from organizing the employees was reflected by Dunlap's statements to Skutnick. In view of the fact that it was Dunlap who checked the work of the other inspectors and showed Lindholm any defects in their work, we do not think that testimony directed to show that 1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Skutnick was a less satisfactory worker than any of the other inspec- tors should be credited. For the reasons set forth in the case of Bunce, we find that Skutnick was released because of his membership in and activities on behalf of the Amalgamated. At the time of his release, Skutnick was earning between $22 and $25 per week. Between the date of his release and the time of the hearing in this proceeding, he earned approximately $150.40. Tapping Department.-The complaint alleges that the respondent discharged the following five men, employed in the tapping depart- ment, because of their membership in and activity on behalf of the Amalgamated and/or their refusal to join the V. F. W. U.: Robert E. Railey on September 3, 1937; August R. Callewyn and Stanley Korzypski on September 30, 1937; Charles Kazanovich on October 1, 1937; and Fred Fairfield on October 5, 1937. In his Intermediate Report, the Trial Examiner found that Robert E. Railey was dis- criminatorily discharged and as to the other four men recommended that the complaint be dismissed. Between August and November of 1937, during which period the above-mentioned employees were allegedly discharged, there was a reduction from 15,635.3 to 8,872.5 in the number of pay-roll hours of work, and a further reduction to 7,580.3 took place during De- cember of 1937. The number of persons employed in the tapping department in- creased from 97 employees in January 1937 to a maximum of 104 appearing on the department pay roll as of May 1, 1937.39 Between May and September 1937, there occurred a reduction of four per- sons. During September and October, the number of persons em- ployed in the department decreased from 99 to 89 and in subsequent months a further reduction to 86 employees was, made. Fred E. Wager was foreman of the tapping department. Wager selected the men who were to be discharged or laid off and then conferred with Beckman about such selections. Robert F. Railey worked for the respondent in 1924. After an absence, he returned to the respondent's employ on May 3, 1926, and with the exception of two short intervals of 1 or 2 weeks each during which he was laid off because of lack of work, continued in- the respondent's employ until September 2, 1937. He had held almost all the different jobs in the tapping department, including that of machinist and of inspector, and had also worked in the tool room and on the bench.40 On April 28, 1937, he joined the Amalgamated and solicited a number of his fellow employees to -^ The data appearing in the above paragraph appear in Respondent Exhibit No 7 40 Respondent Exhibit No . 5 describes the work in which be was engaged at the time of his lay-off as that of "machine operator" WALWORTH COMPANY, INC. 1349 become members thereof . During the evenings after work, he ac- con7panied out-of-town organizers who were attempting to organize the respondent's employees . Although several times requested to join the V. F. W. U., Bailey never became a member.41 Wager denied having any knowledge of Railey 's labor affiliations. On September 2, 1937 , Fred Wager laid off Bailey. Bailey testi- fied that Wager told him, among other things, that he had been instructed by the superintendent to lay Bailey off because of the manner in which Bailey had produced locknuts ; that when Railey said that the locknuts had been produced in that manner for almost 13 years and been approved by the inspectors , Wager replied that Railey was responsible for the work on his machine , but that Bailey was "as good a man" as he had in his department ; that he would do all he could to have Railey rehired ; and that when he told Wager that he believed he (Railey ) was laid off because he attended meet- ings of the Amalgamated , Wager replied excitedly that he knew nothing about it. Wager testified that he told Railey that he had been instructed to lay off whoever was doing the defective work and that hey had warned Railey about his work. Wager denied that Railey had said that the work had been done in this manner for the past 13 years. After Railey's lay-off, operations on his machine were stopped for 1 week and thereafter when the machine was started again , Railey's job was taken by another employee, one Reiff, who had worked intermittently for the respondent since 1916 aaid whose last period of continuous employment began approxi- mately in September 1936. No one was hired or transferred from another department to take Railey's place . There were approxi- mately 20 or 25 men in the department who had been in the respond- ent's employ for a shorter period of time than Railey. The respondent claimed that Railey was selected to be released because of the defective quality of his work. Wager testified that from time to time, he had criticized Railey's work because of its defective quality and warned him that it would be necessary to take him off his machine job if his work did not improve ; that over a period of several months, three complaints had been received in- cluding at least one from a customer in Chicago; and that Beckman had instructed Wager to find out who was doing the defective work and to lay him off. Railey testified that at some time prior to his lay-off, Wager had told him that the locknuts which he was pro- ducing were too tight and should be run off again on the machine; that the only complaint which he had ever received was this one by Wager; and that prior to this incident, lie had never been instructed to turn the locknuts half an inch deeper. He further testified that 41 Railey was last asked to join the V F W U in the middle of August 1937 28 ,0 ;2-4]-rol 21-86 1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an inspector, one Olson, interceded with Wager in his behalf ; that he returned from Wager and said to Railey that, according to Wager, the locknuts had always been run in the manner in which Railey was running them, but that thereafter they wanted them cut deeper. At the hearing, Wager was not able to recall any such conversation with Olson and denied ever having told Olson that the locknuts had always been run in the manner in which Railey was doing this work. 117e, find that the record does not support the allegations of the complaint that Railey was discharged because of his membership in the Amalgamated and/or his refusal to join the V. F. W. U. Iron Body Valve Department.-The complaint alleges that the respondent discharged the following three men employed in the iron body valve department because of their membership in and activity on behalf of the Amalgamated and/or their refusal to join the V. F. W. U.: Harold Brose and Raymond Dennis on June 5, 1937, and Walter Pence on June 7, 1937. In his Intermediate Re- port, the Trial Examiner found that Raymond Dennis was discrimi- natorily discharged, but recommended that the complaint be dismissed with respect to the other two men. During 1937, the peak of 14,432.7 pay-roll hours of employment in the iron body valve department occurred in March. Thereafter, each succeeding month brought a reduction in the number of pay- roll hours of employment until August when there occurred a rise to 11,211.7 pay-roll hours of employment from the figure of 11,040.6 hours of the previous month. In the remaining months of 1937, further reductions took place until in December, there were only 6,539.2 pay-roll hours of employment. During May of 1937, 71 employees were carried on the pay roll of the iron body valve department. In June, this was reduced to 66 employees and subsequently increased to 67 in August. In the remaining months of the year a slight reduction in the number of employees in the department occurred and in December there were 64 employees working in the, department. Lester Alderman was foreman of the iron body valve department. He described his position as that of machine-shop foreman. When it became necessary to reduce the number of persons employed in the iron body valve department, Alderman suggested to Beckman that Brose, Dennis, and Pence, and two other men, Earl King and Pierce, be laid off. He testified that he suggested the names of these men rather than others because he believed that their lay-off would least disturb the proper functioning of the department. Raymond Dennis worked intermittently for the respondent from 1902 to September 1934 when he left the respondent's employ to go to California. His last period of continuous employment with the WALWORTH COMPANY, INC. 1351 respondent was from November 13, 1934, to June 5, 1937, when he worked in the iron body valve department taking care of the scrap. In this period, he also did other jobs when required, such as unloading castings which came from the foundry, wheeling scrap from the boring machine, and general trucking on the floor. Prior to his lay- off on June 5, 1937, Dennis had worked for the respondent on approxi- mately 15 different occasions. Under the employee representation plan which had existed prior to the establishment of the W. P. 0., Dennis had been a conference committeeman. On or about April 28, 1937, he joined the Amalgamated and subsequently, he was elected trustee thereof. Three days prior to his layoff, he undertook the task of organizing the women employees in the respondent's plant. About a month prior to his lay-off, lie attended the organization meeting of the V. F. W. U., which, as has heretofore been indicated, was held in the basement dining room of the respondent's plant. He never became a member of the V. F. W. U., although asked by a fellow employee to join about 2 weeks prior to his lay-off. Alderman denied having any knowledge of Dennis' labor affiliations. On June 5, 1937, Dennis was released from the respondent's employ. Alderman told Dennis that it was necessary to lay him off for a few weeks because of a curtailment in operations resulting from a tem- porary shut-down of the grey-iron foundry and that he would notify Dennis when he needed him. During a period of approximately 2 months, Dennis went to the respondent's employment office in search of work, but was always told that no work was available. According to Dennis' testimony, the grey-iron foundry was shut down for only 3 days and at the time of his lay-off, there had been no reduction in the amount of work available. Alderman testified that Dennis was employed at the job of collecting scrap and boring which was "over- head" rather than production and that in reducing the number of employees, it was the practice of the respondent first to release the employees working on "overhead." Alderman further testified that in September 1934, Dennis had asked for an indefinite leave of absence to go to California; that he (Alderman) had then told Dennis to apply for work in the respondent's plant if he ever returned to Kewanee ; that when Dennis returned to the respondent's employ in September 1934, he was informed that his employment would only be temporary; that if it became necessary to reduce the number of employees, he would be among the first to be laid off because of his age; that Dennis was about 55 years old and small in physique; and that for these reasons, he had selected Dennis to be laid off. Ad- mittedly, however, Dennis' work had been satisfactory. Dennis testi- fied that in September 1934 he quit his employment with the respondent to go to California and when he returned to Kewanee, Alderman asked him to resume his employment with the respondent. 1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He denied that Alderman had told him at the time of his reemploy- ment in 1934 that his job was to be a temporary one or that any mention was then made of his age. Four men were retained in the department after Dennis' lay-off who had been in the respondent's employ for a shorter period of time than Dennis and who were doing the work which he had done. Two of these, Arthur Stenson and Harold Hepner, who worked as helpers on the drill, were members of the Amalgamated but not active in the affairs of this organization. The other two men, Oscar Alm and Charles Johnson, who worked, respectively, grinding seats and valve bodies and as errand boy, were members of the V. F. W. U. After Dennis' lay-off, an employee in the stock house, one Daniels, was transferred from the stock house into the iron body valve depart- ment. The record does not indicate the type of work in which Daniels was engaged after his transfer nor how long he had been in the respondent's employ prior to his transfer to the iron body valve department. On June 9, 1937, a new man, one Ralph L. Sandberg, was hired to unload cars in the department. Subsequently, on October 4, 1937, he was transferred to the training course given to apprentices. Sandberg was the son of a man who had long been employed by the respondent, and who had been bedridden for a considerable period. Mather instructed Griggs to find a job for young Sandberg until the apprentice school opened in autumn and for this reason, Sandberg was given the job of one Pence at unloading cars until October when he went to the apprentice school. Although Dennis was prominent as an officer of the Amalgamated and other men were retained in the department who had worked for the respondent a shorter period of time than Dennis, we are unable to conclude that the release of Dennis, under the particular circumstances set forth above, was not in accordance with the respondent's explana- tions. We, therefore, do not find that Dennis was discharged because of his membership in and activity on behalf of the Amalgamated and/or his refusal to join the V. F. W. U. The Union Department.-The complaint alleges that on October 1, 1937, the respondent discharged Revvie L. Green and Ralph Hart- shorn, both employed in its union department, because of their mem- bership in and activity on behalf of the Amalgamated. In his Intermediate Report, the Trial Examiner found that Revvie L. Green was discriminatorily discharged but recommended that the complaint be dismissed with respect to Ralph Hartshorn. In 1937, the peak of 15,746.2 pay-roll hours in the union department occurred in March, and thereafter there was a decline each month except June when an increase occurred from the 13,116.2 pay-roll hours in May to 13,689.0 pay-roll hours in June. In October, when the WALWORTH COMPANY, INC. 1353 two afore-mentioned men were released from their work, there oc- curred a decline from the 10,174.1 pay-roll hours of the previous month to 9,101.7. From a maximum of 73 persons whose names appear on the pay roll of the union department of May 1, 1937, the number of persons therein decreased each month until October when only 64 persons were em- ployed in such department. During the remainder of the year, the number of persons in the union department continued to decrease until by January 1, 1938, the number of employees therein had been reduced to 56. Nevin K. Marshall and Charles Neuendorf were, respectively, foreman and subforeman of the union department. Revvie L. Green had worked intermittently for the respondent since 1925. After an absence of several years, he returned to the re- spondent in October 1935 and worked continuously until October 1, 1937. During this last period of his employment, he worked on countersinking and recessing machines, as a machine operator on the Fox drill, and for a period of about 3 months, in the plug-valve department on tool lathes, the radio drill and small drill press. On or about May 10, 1937, Green became a member of the Amalgamated. He distributed cards and handbills in the respondent's plant and on one occasion, did this in the presence of 'Marshall, his foreman. He also distributed handbills at the side gate of the respondent's plant to employees as they were entering the plant. When the V. F. W. U. was first formed, one Harry Carlson, an inspector in the union de- partment, asked him to join that organization but Green refused. Marshall denied that he had any knowledge concerning Green's union affiliations. Green testified that about a month before his lay-off, one Ray Welch, a stock chaser, told him that "they all (members of the Amalgamated) would be going out the main gate before they got through with them"; that before this incident, he had told Welch that he was a member of the Amalgamated; that Welch told Green "what to do" and that Welch and Lawrence Stahl, timekeeper in the union department, frequently called him a "radical" and spoke against the C. I. O. Ray Welch testified that he was the schedule clerk in the union department but not a subforeman; that on one occasion, he spoke to Green about unions ; that he asserted that the V. F. W. U. would obtain ' recognition and a closed shop from the respondent. and that in this event the members of the Amalgamated would have to become members of the V. F. W. U. Lawrence Stahl testified that he was a member of the V. F. W. U. and that he spoke to Green about unions but never asked Green to join the V. F. W. U. On the morning of October 1, 1937, Marshall told Green that there was a curtailment in operations; that in preference to Green he was retaining in the respondent's employ some older men who were able to operate certain machines which Green was not able to operate; 1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Green's place on the drill press would be taken by the man who had worked on this machine before Green had; that Green had been a satisfactory employee; and that he would reemploy Green as soon as work became available. At the respondent's employment office, Green was informed that no work was then available. When on one occasion Green asked Griggs for a recommendation, Griggs replied that he did not have the time to write one. After Green's lay-off, no new men were hired in the union department. William Bowers, however, an employee who had operated Green's machine before Green had been assigned to operate it and who had then been transferred to the position of night foreman, took Green's place at that machine. Green testified that after his lay-off, Marshall retained about 11 men in the union department who had been in the respondent's em- ploy for a shorter period of time than he had; that he was able to do the work in which most of the men were engaged who had been in the, •respondent's employ for a, shorter, period of time than he had; and that some of these men were members of the V. F. W. U. and some of the Amalgamated, but none were active in either organization. Marshall testified as follows concerning the termina- tion of Green's employment: He selected Green to be laid off because he could not operate any machine except the Fox drill and there was not sufficient work to keep this machine continuously busy. Green's place was taken by one William Bowers, an older employee who was able to operate all of the machines in the union department. After Green was released, the respondent retained in its employ seven men in the union department who had been hired by the respondent 2 or 3 weeks after Green. Five of these men operated turret lathes. Although Green was able to do a few simple opera- tions on the turret lathes such as recessing, he was not qualified as a. turret-lathe operator. Because of Green's inability to operate the turret lathes, the respondent retained these five men in preference to Green. The other two employees in the union department who had worked for the respondent a shorter period of time than Green were two boys who were engaged in inserting and setting rings at a. wage, rate of 38 cents an hour except when doing piece work at which time they earned 55 cents an hour, a wage rate far less than the 80 to 90 cents per hour which Green was paid. Although the re- spondent's position is not clear, the respondent apparently contends that it released Green instead of transferring him to the job of one of these two boys because of the marked discrepancy between the wages of Green and of the two boys. We find that the record does not support the allegation of the complaint that the respondent discharged Revvie Green because of his membership in and activity on behalf of the Amalgamated and/or his refusal to join the V. F. W. U. WALWORTH COMPANY, INC. 1355 Brass Foundrry.-The complaint alleges that on June 29, 1937, the respondent discharged James Stith, an employee in the brass foundry, because of his membership in and activity on behalf of the Amalgam- ated and/or his refusal to join the V. F. W. U., and the Trial Examiner found that James Stith had been discriminatorily discharged. During 1937, the peak of 22,156.6 pay-roll hours in the brass foundry occurred in March. Thereafter, there was a decline in the number of pay-roll hours during each month in 1937 except Sep- tember when there was an increase from the 13,932.0 pay-roll hours of the previous month to 14,697.0. In June 1937, when Stith's employment was terminated, there was a decline from the 16,612.1 pay-roll hours of May to 15,701.2. During June 1937, the pay roll of the brass foundry carried be- tween 115 and 117 names. In the following month this number was decreased to 105 and during the remainder of 1937 further reductions occurred until December 1937 when there were between 98 and 100 employees on the department pay roll. Evard Anderson and Ralph Johnson were, respectively, foreman and subforeman of this department. James Stith. Stith's entire period of employment with the re- spondent, lasting from October 14, 1936, to June 29, 1937, was spent in the brass foundry.12 At the time of his lay-off on June 29, 1937, Stith was not married. At some time during April 1937, he became a member of the Amalgamated and was active in the affairs of that organization. He spoke to his fellow employees in and outside of the plant about joining the Amalgamated and for a few days wore an Amalgamated button while at work in the plant. Stith testified that on several occasions from May 1937 until the time of his lay-off, Louis Albright, the head timekeeper in the brass foundry '43 began arguments with him concerning the Amalgamated and the V. F. W. U.; that in these arguments Stith defended the Amalgamated; that one, Fred Marvin, assistant timekeeper '44 fre- quently participated in such discussions; that Albright persistently urged Stith to become a member of the V. F. W. U.; and that on several occasions, he made such requests in an office which he shared in common with Anderson, foreman of the brass-iron foundry, and with Marvin. He further testified that on some such occasions he wore his Amalgamated button; that Albright, in making such a request of Stith about a month or 6 weeks before Stith's lay-off stated that if Stith refused to join the V. F. W. U., he would be " In Respondent's Exhibit No . 5, Stith's work is described as that of "setting cores" in the brass foundry e Albright testified that he was schedule clerk in the brass foundry and that , included among his duties was that of timekeeper. "Marvin testified that his job was that of clerk in the brass foundry 1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged; that about a week before Stith's lay-off, Albright while in his office asked him to become a member of the V. F. W. U.; that Stith refused; and that during the discussion, Foreman Anderson was seated in the office at a distance of from approximately 3 to 5 feet from Stith. Marvin testified that Albright was not active on behalf of the V. F. W. U. and denied that he had ever heard Al- bright and Stith discuss the V. F. W. U. Albright admitted mem- bership in the V. F. W. U. but denied that he had asked Stith to join that organization, that he had discussed the V. F. W. U. with Stith, or that he had ever told Stith that he would be discharged if he did not join the V. F. W. U. Anderson did not testify at the hearing in the proceeding. In view of the respondent's open hos- tility to outside unions and the example which it thereby set its employees, we credit Stith's testimony rather than the denials of Albright and Marvin and find that on the several occasions men- tioned hereinabove, Albright and Marvin made the remarks attrib- uted to them by Stith. About 3 weeks before Stith's lay-off, Subforeman Ralph Johnson told a group of four or five employees, including Stith, that "If there is any outside union comes in here- the boys that signs up in it will be wheeled out the gate in a wheel- barrow," and that the V. F. W. U. "would be better than having an outside union in here and letting outside people take our money outside of Kewanee." This occurred in the brass foundry during working hours while the employees were changing the patterns. Johnson did not testify at the hearing in the proceeding. Although the respondent introduced no evidence with respect to Stith's release except that contained in the testimony of Albright and Marvin, it contended in its brief that it had no knowledge con- cerning Stith's union affiliation. In view of the respondent's con- cern with respect to the organization of affiliated unions, particularly as reflected in the afore-mentioned conduct of Johnson and in view of Stith's activity on behalf of the Amalgamated, we find that the respondent, through its supervisory employees in the brass foundry, knew of Stith's membership in the Amalgamated. For a week prior to his lay-off, Stith had been absent from his work with the permission of Albright and another subforeman, Phil De Mink. On June 29, 1937, Ralph Johnson told Stith that it was necessary to lay him off in order to place at Stith's job another em- ployee, Julius Malone, who had been in the respondent's employ for a longer period of.time than Stith and who at this time was working in the department. Malone was placed at Stith's job and, so far as the record shows, no employees with less seniority than Stith were retained in the department. Although Stith's case is not free from doubt, in view of his short period of service with the respondent and of the fact that no em- WALWORTH COMPANY, INC. 1357 ployees with less seniority were retained when he was released, we find that the record does not support the allegations in the complaint that Stith was released because of his membership in and activity on behalf of the Amalgamated and/or his refusal to join the V. F. W. U. Maintenance Department.-The complaint alleges that on Novem- ber 1, 1937, the respondent discharged Harold Stover employed in the maintenance or general repair department because of his mem- bership in and activity on behalf of the Amalgamated and/or his refusal to join the V. F. W. U. In his Intermediate Report, the Trial Examiner found that Harold Stover had been discriminatorily discharged. Evidence introduced by the respondent indicates that during 1937, the peak of 17,202.8 pay-roll hours of employment in the maintenance department occurred in April. Between May and August, the num- ber of pay-roll hours per month varied from 16,202.2 to 16,695.7. In the following months, there was a decrease to 12,327.1 pay-roll hours in November. In December there was a slight increase to 13,005.9 pay-roll hours. Patrick H. Kaine was foreman of the maintenance department. Harold Stover had been in the respondent's employ on three differ- ent occasions. In July 1933, Griggs asked Stover, who at that time had not worked for the respondent for 13 years, to resume employ- ment with the respondent. Stover did so and continued in the re- spondent's employ until November 1, 1937. From July 1933 until October 1935, he worked in the scratch room of the grey-iron foundry. He then worked as an elevator operator until March 15, 1937, when he was transferred to general repair work in the maintenance de- partment. At the time of his lay-off on November 1, 1937, he was cleaning the yard, pulling out weeds, and, checking water leaks.45 During the early summer of 1937, Stover became a member of the Amalgamated. Although he never tried to persuade fellow em- ployees to join the Amalgamated, he spoke about that organization during the lunch hour or before work and made no effort to conceal his membership in the Amalgamated. On one or two occasions, he wore his Amalgamated button in the plant. Although fellow em- ployees asked Stover to join both the W. P. O. and the V. F. W. U., Stover never became a member of either organization. Kaine, gen- eral foreman of the maintenance department, denied that he had any knowledge concerning Stover's labor affiliations. On, November 1, 1937, Stover was released from his employment with the respondent. Kaine notified Stover, who at the time was ' On Respondent's Exhibit No. 5, Stover's work is described as that of "general con- struction." 1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in putting in some floors in the tool-making department, that he was to be laid off. When Stover asked whether he might be able to obtain some work in the tank or iron working departments, Kaine replied that three men were also being laid off in these depart- ments. About 3 weeks after his lay-off, Stover met Bates, superin- tendent of the maintenance department and Kaine's superior. Bates told Stover that he had informed Beckman that he wanted to re- employ Stover. Subsequently, Stover spoke to Beckman about the likelihood of his reemployment by the respondent. Beckman told Stover that he did not know "when things would be better." It appears from Respondent's Exhibit No. 6, that there were several men working in the general repair or maintenance department who were in the respondent's employ for a shorter period than Stover. Kaine testified that on or about November 1, 1937, it was neces- sary to lay off some men in his department because of lack of work; that Stover was one of the more recently employed men in his de- partment; that both Green and Swanson, two of the men who had worked for the respondent a shorter period of time than Stover, were good concrete and cement men; that Stover could not do concrete or cement work; that although Stover was a good workman, during his last period of employment under Kairie, he was preoccupied with family difficulties and therefore not too efficient; that prior to his last period of employment with the respondent, Green had worked on several occasions for Kaine; that when laid off, Stover was doing general maintenance work in the yard; and that at the time of the hearing herein, no men were employed in such work. We find that the record does not support the allegations of the complaint that the respondent discharged Harold Stover because of his membership in and activity on behalf of the Amalgamated and/or his refusal to join the V. F. W. U. Steel Iron Foundry.-The complaint alleges that on February 17, 1938, the respondent discharged -Lucius Brody employed in its steel- iron foundry because of his membership in and activity on behalf of the Amalgamated and/or his refusal to join the V. F. W. U. In his Intermediate Report, the Trial Examiner found that Lucius Brody had been discriminatorily discharged. During the first 5 months of 1938, the peak of 6,098.9 pay-roll hours of employment in the steel-iron foundry occurred in January. In February, there was a decline to 2,443.8 pay-roll hours of employ- ment and in March an increase to 5,047.1. In April and May, the number of pay-roll hours were, respectively, 2,219.6 and 2,101.8. In January 1938, there were 46 employees on the pay roll of the steel-iron foundry. In February this decreased to 45 and for 1 week in that month to 44. From the end of February until. the be- ginning of June the number of employees on the pay roll remained 45. WALWORTH COMPANY, INC. 1359 William Burns was foreman of the steel-iron foundry. Lucius Brody had been continuously in the respondent 's employ for about 3 years prior to his discharge on February 17, 1938. During that period he worked in the steel-iron foundry , first as a laborer and subsequently as a molder on a machine. Either in May oor June 1937, Brody became -a member of the Amalgamated and was active therein soliciting fellow employees during lunch hour to join this organization and attending union meetings . Although asked by other employees during working hours to join the V. F. W. U., Brody never became a member thereof. On one occasion, William Burns, foreman of the steel-iron foundry, told Brody not to pound the sand too hard on certain flanges upon which Brody was working. -Brody replied that he would do the work properly and that he would "put the C. I. O. button on these." Burns denied having any knowledge concerning Brody's union affiliations. On February 17, 1938, Burns notified Brody that, pursuant to instructions from Beckman , he was to be laid off . Brody testified that when he spoke to Beckman about his lay-off , Beckman replied that he had not given Burns any instruction to lay him off and sug- gested that he ask Griggs if any work was available; and that although he asked Griggs for work, he was not reemployed by the respondent . The respondent contended and adduced evidence to show that during the 6 weeks prior to Brody's discharge , there had been complaints about the slow manner in which Brody had done his work ; that Brody had threatened to beat another employee, one McCollum, for doing too much work ; that when it became necessary to lay off an employee because of the curtailment in the amount of work available, he had first decided to lay off another employee, George Johnson; that because of Brody's threat to McCollum, he decided to lay Brody off instead of Johnson; and that McCollum was a better worker than Brody. - We find that the record does not support the allegation of the complaint that the respondent discharged Lucius Brody because of his membership in and activity on behalf of the Amalgamated and/or his refusal to join the V. F. W. U. We find that the respondent has discriminated in regard to the hire and tenure and terms and conditions of employment of the em- ployees listed in Appendix B,46 and has thereby discouraged mem- bership in the Amalgamated and interfered with , restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act. "This Appendix includes all the employees against whom we have found that the respondent discriminated, except Murphy, Kubelius, and Coleberg, who are listed in Appendix A. 1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent has not discriminated in regard to the hire and tenure and conditions of employment of the persons listed in Appendix C and has not thereby discouraged membership in the Amalgamated or encouraged membership in the V. F. W. U. 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. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom. In order to effectuate the purposes and policies of the Act, and as a means of removing and avoiding the consequences of the respondent' s unfair labor practices, it is essential that in aid of our cease- and desist order the respondent be directed to take certain affirmative action, more particularly described below. We have found that the respondent has dominated, interfered with, and supported the formation and administration of the V. F. W. U. Its continued existence is a consequence of violation of the Act thwarting the purposes of the Act and rendering ineffective a mere order to cease and desist the unfair labor practices.47 In order to ef- fectuate the policies of the Act and free the employees of the respond- ent from such domination and interference and the effects thereof, which constitute a continuing obstacle to the exercise by the employees of the rights guaranteed them by the Act, we shall order the respond- ent to withdraw all recognition from the V. F. W. U. as representa- tive of any of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work, and to disestablish it as such representative 48 and to cease and desist from giving effect to any contract or agreement entered into by the re- spondent and the V. F. W. U. or representatives thereof concerning " Consolidated Edison Company v. National Labor Relations Board, 305 U. S 197. 48 National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., et al., 303 U. S. 261; National Labor Relations Board v. Pacific Greyhound Lines, Inc , 303 U. S. 372; National Labor Relations Board v. Fansteel Metallurgical Corporation , 306 U. S.. 240, National Labor Relations Board v. The Falk Corporation, .308 U. S 453 WALWORTH COMPANY, INC. 1361 wages, rates of pay, hours of employment, or other conditions of em- ployment.49 We have found that the respondent discriminatorily discharged the employees listed in Appendices A and B. We shall order the re- spondent to offer each of said employees immediate and full reinstate- ment to his former position, without loss of his seniority or other rights and privileges and to make him whole for any loss of pay he has suf- fered by reason of the respondent's discrimination against him, by payment to him of a sum equal to the amount he normally would have earned as wages from the date of such discrimination to the date of such offer of reinstatement, less his net earnings 60 during said 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. Lodge 1768, of Amalgamated Association of Iron, Steel and Tin Workers of North America, Steel Workers Organizing Committee, and Valve and Fittings Workers' Union of Kewanee are labor organiza- tions within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and admin- istration of, and by contributing support to a labor organization, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to hire and tenure of employment and terms and conditions of employment, thereby discouraging mem- bership in labor organizations, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 40 National Labor Relations Board v. Stackpole Carbon Co , 105 F (2) 167 (C. C. A. 3rd) 1013y "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 t"e 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 Amer- sea, Lumber and Sawmill Woil.ers 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 See Republic Steel Corporation V. National Labor Relations Board, 107 F. (2d) 472 (C C A 3rd 1939) 1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not engaged in unfair labor practices within the meaning of the Act by discharging or laying off the employees listed in Appendix C. 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, Walworth Company, Inc., and its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of Valve and Fittings Workers' Union of Kewanee, or the formation or administration of any other labor organization of its employees, and from contributing support to Valve and Fittings Workers' Union of Kewanee, or to any other labor organization of its employees; (b) In any manner giving effect to any contract or agreement which it may have entered into with Valve and Fittings Workers' Union of Kewanee or representatives thereof in respect to rates of pay, wages, hours of employment, or other conditions of employment; (c) Discouraging membership in Lodge 1768, of Amalgamated Association of Iron, Steel and Tin Workers of North America, or any other labor organization, by discharging, laying off, or refusing to reinstate any of its employees or in any other manner discrimi- nating in regard to hire and tenure of employment, or any term or condition of employment; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Valve and Fittings Workers' Union of Kewanee as representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of work, and completely disestablish Valve and Fittings Work- ers' Union of Kewanee as such representative; WALWORTH COMPANY, INC. 1363 (b) Offer to the employees listed in Appendices A and B full and immediate reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges ; (c) Make whole the employees listed in Appendices A and B for any loss they may have suffered by reason of the respondent's dis- crimination, by paying to each of them a sum of money equal to that which each would normally have earned as wages during the period from the date of his discharge to the date of the respondent's offer of reinstatement; less his earnings, if any, during said period; de- ducting, however, from the amount otherwise due to each of the said employees, monies received by said employee during said period for work performed upon Federal, State, county, municipal, or other relief projects, and paying over the amount so deducted to the appro- priate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the work for said work-relief projects; (d) Immediately post notices in conspicuous places throughout its plant in Kewanee, Illinois, and maintain such notices for a period of sixty (60) consecutive days from the date of such posting, stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), (c), and (d) and that it will take the affirmative action set forth in 2 (a), (b), and (c) of this Order, that the respondent's employees are free to become or remain members of Lodge 1768, of Amalgamated Association of Iron, Steel and Tin Workers of North America, and that the respondent will not discriminate against any employee because of membership or activity in this organization ; (e) Notify the Regional Director of 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. AND IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act with respect to the persons listed in Appendix C. APPENDIX A Julius Coleberg Ralph Murphy Anton Kubelius APPENDIX B Charles Blazier James Hamilton Neal Bunce DeLos Lay Dewey Debord John Trussen Peter Dolieslager Joseph Skutnick 1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX C Harold Brose Lucius Brody Oliver Costenson August R. Callewyn Raymond Dennis Peter Douglas Fred Fairfield James D. Green Revvie L. Green Ralph Hartshorn Ralph Heston Leo Jackowicz Charles Kazanovich Anton Kelly Stanley Korzypski Ennas Otis Walter Pence Robert E. Railey Peter Skrinski Rollin Snider James Stith Harold Stover Charles Widger Mn. WILLIAM M. LETSERSON took no part in the consideration of the above Decision and Order.