Tulsa Boiler and Machinery Co.

In the Matter of TULSA BOILER AND MACHINERY COMPANY and STEEL WORKERS ORG,\NIZING COMMITTEE Case No. C-,966.-Decided May 15, 1940 Steel Equipment Manufacturing Industry-Settlement Agreement: upheld: between agent of Board and respondent in full settlement of all charges filed prior thereto; provided for reinstatement of certain employees and preferential treatment of others ; given effect for reasons of policy, no showing of a con- tinuation of the unfair practices settled by the agreement or a breach thereof; subsequent unfair labor practices do not require disturbance of agreement where principal purpose of agreement was to remedy the discrimination against the persons named therein, which has been effectuated-Interference, Restraint, and Coercion: events antedating and covered by settlement agreement not con- sidered; charges of sustained as to anti-union statements made subsequent thereto-Discrimination : evidence antedating agreement concerning discrimina- tory discharge of persons named therein not considered ; discrimination as to these individuals after the agreement not proven; cases of six other employees not named in agreement considered ; charges sustained as to one and dismissed as to five employees-Reinstatement Ordered: discriminatorily discharged employee-Back Pay: awarded. Mr. L. N. D. Wells, Jr., for the Board. Mr. Robert W. Raynolds, of Tulsa, Okla., for the respondent. Mr. H. A. Rasmussen, of Houston, Tex., for the S. W. O. C. 111r. Gilbert V. Rosenberg and Mr. Joseph Forer, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges duly filed by Steel Workers Organizing Committee, herein called the S. W. O. C., the National Labor Rela- tions Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint dated May 12, 1938, against Tulsa Boiler and Machinery Company, Tulsa, Oklahoma, herein called the respondent, alleging that the re- spondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and 23 N. L. R. B., No. 89. 846 TULSA BOILER AND MACHINERY COMPANY 847 'Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing were duly served upon the respondent and the S. W. O. C. On May 18 and May 27, 1938, the Regional Director, acting as agent for the Board pursuant to Article IV, Section 1 (c), of Na- tional Labor Relations Board Rules and Regulations-Series 1, as amended, and Section 10 (b) of the Act, amended the complaint. Concerning the unfair labor practices, the complaint, as amended, alleged in substance, that the respondent discouraged membership in the S. W. O. C. by discharging, refusing to reinstate, and otherwise discriminating against 31 named employees' because of their mem- bership and activity in the S. W. O. C., and that by the aforesaid and other acts, the respondent interfered with, restrained, and co- erced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On May 26, 1938, the respondent filed its answer to the complaint as amended in Which it admitted certain allegations of the complaint as amended, denied the alleged unfair labor prac- tices, and set up certain matters of affirmative defense. Pursuant to notice, a hearing was held from June 2 to 9, 1938, before Joseph F. Keirnan, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and the S. W. O. C. by its representative; all participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the hearing counsel for the Board moved to amend the complaint to include allegations of discrimina- tion against R. H. Ferguson. The Trial Examiner allowed the amendment over the respondent's objection, but deferred the cross- examination of Ferguson by the respondent until the close of the hearing.2 At the close of the Board's case counsel for the respondent moved to dismiss with prejudice the allegations of the complaint as to six employees 3 who did not testify. The motion was granted. Numerous other motions and objections to the admission of evidence were made and ruled upon at the hearing. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. , W. F. (Frank) Coats. Hariv C Miller, John C FLoag, Jr., Carl Gieen, R. B Jones. J. C. Cloud, C. W Fitzpatrick, L. J Lyle, W. L. Mills, Lawrence C. Wiggins, J A. Millei, Lawrence Wooldi edge, H. G Wooldridge, Harold B. Cogbill, J. T. Arp, I A. Stockton, Jack (Francis Joseph) Spiatt. Grady Cunningham, Claud Morris, J. W Cox, Jess Cloud, Elmo Cox, Walter C Mahon. Aichie Bottomley, Connie (Mickoy) Gordon, It T. Wilson, AV P Whitten, A. L Kerr, R L. Vance, Lawrence Hardesty, and L. IT naynes 2 At the close of the hearing the respondent, without waiving its objection, cross- examined Ferguson and introduced evidence concerning its alleged discrimination against 1001 gu son 3 Grady Cunningham, Claud Morris, Jess Cloud, A R Kerr, R L Vance, and L H llavnes 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 10, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties . Therein he found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce , within the meaning of Section 8 ( 1) and ( 3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from the unfair labor practices so found and take certain affirmative action of remedial nature, including the reinstatement with back pay of 26 individuals. Exceptions to the Intermediate Report were thereafter filed by the respondent. Pursuant to notice duly served upon the parties , a hear- ing was held before the Board at Washington, D. C., on April 27, 1939, for the purpose of oral argument . The respondent was repre- sented by counsel and participated in the argument. The S. W. O. C. did not appear. The Board has considered the exceptions filed by the respondent and finds them to have merit only in so far as they are consistent with the findings of fact, conclusions of law, and order set forth below. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Tulsa Boiler and Machinery Company is an Oklahoma corporation having its office and plant in Tulsa, Oklahoma. It is engaged in the manufacture of oil -field equipment, steel derricks, vats, stills for refineries, and other types of special order structural steel products. The plant consists of three departments , machine, boiler, and structural . The principal raw materials used by the respondent are sheet steel , angle iron , steel beams, rivets, nuts, welding materials, paint, and steel sections . A large proportion of the raw materials are transported to the respondent's plant from points outside the State of Oklahoma. During 1937 the respondent sold finished products valued at approximately $2,000,000, of which a large pro- portion were shipped to points in Kansas, New Mexico, Arkansas, Texas, and Louisiana. IT. THE LABOR ORGANIZATION INVOLVED Steel Workers Organizing Committee , affiliated with the Congress of Industrial Organizations, is a labor organization admitting to its membership employees of the respondent. TULSA BOILER AND MACHINERY COMPANY 849 III. THE UNFAIR LABOR PRACTICES A. The alleged discriminatory discharges 1. Chronology of events Union organization at the respondent's plant began on July 21, 1937, when 21 of the respondent's employees went to the home of an organizer after work on the day shift ended. Of these 19 joined the S. W. O. C. On the next day the respondent laid off or dis- charged 6 of these employees, J. C. Cloud, Carl Green, Harry C. Miller, Frank Coats, R. B. Jones, and John C. Hoag, Jr. At or about the same time the respondent laid off or discharged in all between 25 and 35 employees. Thereafter, at various times prior to November 22, 1937; the respondent laid off or discharged a num- ber of other employees, certain of whom are named in the complaint. In the latter part of November 1937 the respondent reached an agreement with John F. LeBus, a Field Examiner for the Board, in "final adjustment of all charges" which had theretofore been filed with the Board against the respondent .4 In the agreement the respondent undertook as follows: (1) to reinstate, on specified dates in November, Harry C. Miller, Coats, Hoag, Green, Jones, and J. C. Cloud, and give them "continuous employment whenever we have work to be clone which they can do"; (2) to place "in a likewise position as soon as possible" Haynes, Lawrence Wooldridge, H. G. Wooldridge, Gordon, Lyle, Fitzpatrick, Vance and Spratt; (3) to "give every consideration possible . . . and whenever possible . . . give prefer- ence over any new men" to J. W. Cox, Jess Cloud, Paul McKenna, Bottomley, Arp, Clyde Wedley, Cogbill, Lou Meyers, Mahon, T. E. Hudson, Mills, Cunningham, E. E. Stevens, J. A. Miller, Morris, and Wilson. The respondent recalled to work the six individuals coming within the first category of the agreement and in accordance with an oral understanding paid each a sum representing 60 per cent of back pay. The men thereafter worked with varying degrees of irregularity. chiller last worked on January 18, 1938; Coats on June 1, 1938; Green on February 3, 1938; and Cloud on December 28, 1937. Hoag and Jones last worked in December 1937, the latter then "quitting" in the interval between his tentative discharge by a foreman for alleged cause and approval or disapproval of the foreman's action by the department manager. Of the other individuals named in both the settlement agreement and the complaint only two were recalled to work, Lawrence 4 The record in this proceeding does not contain the charges which the settlement agreement purported to adjust 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wooldridge working 5 days in November and W. L. Mills working irregularly until December 27, 1937. 2. Effect of the settlement agreement We have heretofore held that where an agreement in settlement of charges of unfair labor practices has been reached with the participa- tion of agents of the Board, we shall, for reasons of policy, refrain from considering the alleged unfair practices settled' by the agreement unless there has been a continuation of such practices or a breach of the agreement.5 In the present case the record does not support a finding that the respondent breached the terms of the settlement agreement or en- gaged in anti-union discrimination by its failure to accord more regular employment to those individuals recalled to work or to give any employment to the others named in the agreement. Of those named in both the agreement and the complaint all had been em- ployed in the structural shop- with the exception of J. W. Cox and Spratt, who had worked in the boiler shop. The respondent's pay roll for November 15, 1937, carried 101 structural-shop employees, whereas the 1937 peak had been 125 for the September 15 pay-roll period. The pay roll for November 31, 1937, carried 83 structural- shop employees, and subsequent pay rolls indicate a persistent de- cline. Thus the pay roll for 1.12ay 31, 1938, carried 44 names and only 9 men worked in the structural shop on June 8, 1938. The November 15, 1937, pay roll for the boiler shop carried 118 names, whereas the 1937 peak had been 234 in July. By January 31, 1938, the pay roll rose to 137, but declined to 108 by May 31, 1938. Six men, consisting of 3 gatemen, a blacksmith, an electrician, and a punchman, worked in the boiler shop on June 8, 1938. The record does not contain evidence of the number of union members working in the plant at any date and therefore does not afford any basis for comparison between the lay-offs and discharges of union and- non-union men. These statistics must be evaluated, furthermore, in the light of the respondent's system of putting men to work. The employees re- port daily at the plant, and the foremen then selects the individuals who are to work on that day. No principle of seniority prevails, 5 See Matter of Shenandoah-Dives Mining Company and International Union of Mine, Mill & Smelter Workers, Local No. 26, 11 N. L. R. B. 885; Matter of Godchaux Sugars, Inc. and Sugar Mill Workers' Union, Locals No. 21177 and No. 2188 affiliated with the American Federation of Labor, 12 N L. R. B 568; Matter of Chambers Corporation and A llied Stove Mounters and Stove Processors International Union, Local No. 36 (A. F of L ), 21 N L R. B. 808. TULSA BOILER AND MACHINERY COMPANY 851 men are frequently shifted from one type of work to another, and labor turn-over is extremely high.° Although the evidence does not, therefore, prove discrimination in employment after the date of the settlement agreement as against employees named in the agreement, nevertheless, the respondent thereafter engaged in certain other unfair labor practices.7 It is our opinion, however, that the principal purpose of the settlement agree- ment was to remedy the alleged discrimination against the individ- uals named therein, and that that purpose has been effectuated. Under the circumstances of this case the respondent's subsequent un- fair labor practices do not constitute such continuance or resump- tion of the practices settled by the agreement as to require disturb- ance of the agreement." We consider that the settlement agreement disposes of the issue of discrimination prior to its date against per- sons named therein. Inasmuch as we find that they were not dis- criminated against thereafter, the complaint as to them will be dis- missed. Conversely, we do not view the agreement as disposing of allegations of discrimination against persons for whom it makes no provision. We shall accordingly consider the cases of such persons, even where the alleged discrimination occurred prior to the execution of the agreement .9 3. Alleged discrimination against employees not included in settlement agreement Elmo Cox was employed by the respondent on March 24, 1937, as a common laborer in the structural shop. He joined the S. W. O. C. on September 8 or 9, 1937, and first wore his union button in the shop on or about October 13, 1937. On that day he was laid off by his fore- man, who complained that he was "kind of laying down on the job." He returned to work on October 19, 1937, and worked through Oc- tober 25, 1937. Cox had worked at irregular intervals from the time when he was first employed. Moreover, approximately 40 other em- ployees in the structural shop were laid off in October 1937. Arthur Frey, superintendent of the structural shop, and J. W. Brown, fore- 'Thus in 1937 the respondent hired 287 new men for the structural shop and 289 for the boiler shop. As already indicated , these figures are considerably in excess of the number of men working during any one pay-roll period in that year. 7 See Section III, A, 3 and III, B , infra. e Cf. Matter of Corinth Hosiery Mill, Inc and American Federation of Hosiery Workers, 16 N. L R . B. 414, where the circumstances required a contrary conclusion. 9 While the agreement purports to settle charges previously filed, those charges are not part of the record. The Board, taking cognizance of the charges on file, notes , however, that Lawrence Hardesty is the only person who was named in the charges in question and in the instant complaint , but not in the settlement agreement . Since, as we hereinafter find, the allegation of discrimination against Hardesty is not supported by the record, we need not determine the effect of the settlement agreement upon his case 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man, testified that Cox was very lazy and that they had tried their best to keep him on because his father was a valued employee. The evidence does not demonstrate discrimination against Cox. The allegations of the complaint to that effect will be dismissed. I. A. Stockton worked for the respondent for approximately 4 months in 1923 and 6 months in 1929. He resumed employment on March 9, 1936 , and worked through July 1936, with an 11-day lay-off in April and a 13-day ]ay-off in May. He returned to work in De- cember 1936 as a common laborer in the structural shop and worked through November 28, 1937, with frequent interruptions. Stockton joined the S. W. O. C. in September 1937. On November 4, 1937, he was laid off until November 26,, and last worked on Novem- ber 27 and 28. He testified that on the morning of November 29, 1937, his foreman , J. W. Brown , told him he would be laid off until December 1, 1937, in order to divide the work. Stockton attended a S. W. O. C. meeting for the first time in the evening of November 29, 1937. He reported to work on December 1, but was told by Frey that no work was available. Stockton testified that Frey told him at the time that he should not have joined the S. W. O. C. and that if he wanted to get rid of his card he might go back to work. J. W. Brown and Frey testified that Stockton was "broke down pretty badly" and that they had given him some work out of pity. They also testified that early in November 1937, Stockton asked for a few days' work a week in order to get his automobile paid for, that shortly before November 26, Stockton asked for two more days' work, and that in both instances they granted the requests . Stockton tes- tified that he asked Brown before November 26 for either 2 days' or a few days' work. Frey denied ever saying anything to Stockton about the S. W. O. C. We do not find it necessary to resolve the conflict in testimony. During November 1937, 35 of the structural- sliop-employees quit, were laid off , or were discharged. The evidence does not sustain a finding of discrimination against Stockton. The allegations of the complaint to that effect will be dismissed. Lawrence Hardesty was employed by the respondent as a carpenter in March 1937, but occasionally did work other than carpentry. Hardesty joined the S. W. O. C. on July 21, 1937, and was laid off on October 2, 1937. The respondent contends that Hardesty was employed primarily for certain carpentry jobs, was given other work only in the intervals between such jobs, and was finally laid off when there was no more carpentry work . The respondent has not employed a carpenter to replace Hardesty. The evidence does not sustain a finding of discrimination against Hardesty. The allegations of the complaint to that effect will be dismissed. TULSA BOILER AND MACHINERY COMPANY ' 853 W. P. Whitten worked for the respondent for 8 months in 1934 and a month in April or May of 1935 or 1936. In August 1936 he resumed work as a general helper in the structural shop at 40 cents an hour. He subsequently obtained two raises of 5 cents each, the last raise occurring in July 1937. Whitten joined the S. W. O. C. on August 27, 1937. Thereafter he worked very infrequently because of illness, but resumed work in November or December 1937. On December 5, 1937, Whitten attended his first S. W. O. C. meeting. He worked on December 6, and attended another S. W. O. C. meeting that night. The next day, December 7, he was laid off. On January 5, 1938, he asked Manly Clark, manager of the structural department, for work. Clark offered to give him steady employment through January 15, and told him he had better find a job elsewhere. Whitten then worked through January 14, 1938. Whitten testified that on January 16, 1938, Frey told him, "Red, you done something you ought not to have done; your best, friends are your damn enemies," and acquiesced in Whitten's statement that he was not working because he had joined the S. W. O. C. This testimony was contradicted by Frey. We credit Whitten's account.1° Clark testified that he did not think Whitten was worth the money they had been paying him. However, in view of the pay raises received by Whitten, the manner in which his lay-off of December 7, 1937, followed his first attendance at S. W. O. C. meetings, and Frey's statements on January 16,1938, we do not find Clark's explanation credible. On the entire record we find that the respondent discharged Whitten to discourage S. W. O. C. membership and activity and thereby inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. R. H. Ferguson worked for the respondent for a short period in 1929 and resumed work in 1930. He joined the S. W. O. C. about July 23, 1937. In September 1937 Ferguson was running an angle shear in the structural department at a wage of 65 cents an hour. At that time he was elected president of a union sponsored by the re- spondent, but continued his S. W. O. C. membership. After his elec- tion he attended a S. W. O. C. meeting. About September 13, 1937, he was summoned to Clark's office, where Clark, Frey, and Charles W. Flint, president of the respondent, indicated to him their displeasure at his having attended the S. W. O. C. meeting. On September 15, 1937, his foreman, J. W. Brown told him to leave the shears and go help another employee known as "Cowboy." Ferguson went to the floor on which Cowboy was working at what Ferguson described as -"It should be observed that our d;sbelief of Frey's testimony in this and other respects is based on factors other than the'evidence that Frey was convicted of a felony in 1925 we do not regard this conviction as impeaching his credibility ; but in our opinion the record otherwise raises serious doubts as to his veracity. 283034-41-vol 23-55 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "common labor gang" work. Ferguson stayed ' for a few minutes and then drew his money and left. J. W. Brown testified that Ferguson was rated as one of the better workers; that he asked Ferguson to work with Cowboy because an assembler was needed for the job; that he therefore put another man on the shear; and that the first thing he knew Ferguson was gone. On September 17, Herb Brown, son of J. W. Brown and himself a foreman, brought to Ferguson's home a pint of liquor. After Brown and Ferguson had drunk a large part of the liquor, Ferguson asked Brown to tell Mrs. Ferguson "the truth." Brown told Mrs. Ferguson that Ferguson had had to quit or he would have been discharged. He also said that his father had told him on the morning of September 15 that he had "to get shet of Ferguson" the next day. The evidence raises a suspicion that the respondent was planning to get rid of Ferguson on account of his S. W. O. C. membership. However, in the absence of any showing as to the permanence- or impermanence of his job with Cowboy and as to the precise nature of the work, there is no basis for concluding that his assignment to another job was intended as execution of the plan. The allegations of the complaint as to discrimination against Ferguson will be dismissed. Lawrence C. Wiggins was employed by the respondent as an electrician and maintenance employee in May 1933 and joined the S. W. O. C. on July 21, 1937. He was elected president of the S. W. O. C. local on July 22, 1937, , and still held that office at the time of the hearing. On the evening of December 1, 1937, Wiggins and Frey had a heated altercation in the plant. Wiggins' own testimony indicates that he provoked the disturbance and that he may have been partly intoxicated. The next morning Wiggins was discharged. In March or April 1938 Flint told LeBus that he would have given Wiggins another chance except that he had previously caused trouble. The nature of the previous "trouble" was not at that time disclosed to LeBus. On a previous occasion, however, Flint had told LeBus that the respondent had had considerable trouble with certain machines in the structural shop for whose maintenance Wiggins was responsible. The respondent contends that this was-the "trouble" referred to by Flint in the April 1938 conversation. The record demonstrates that in October 1937 Wiggins had, in fact, been relieved from responsibility for the structural-shop machines, that prior to that time there had been occasional machine difficulties in the structural shop, and that a new man was then hired to service the structural-shop machines. The evidence does not support a finding of discrimination against Wiggins. The allegations of the complaint to that effect will be dismissed. TULSA BOILER AND MACHINERY COMPANY 855 B. Intel ference, restraint, and coercion On November 22, 1937, Carl, Green had a conference with Clark relative to Green's reinstatement under the settlement agreement. Clark told Green at the time not to "shoot off" that the "government" had compelled his reinstatement, and told him, "Now you are going back to work, I wish you would cut out a little bit of that up yonder." On January 6, 1938, Frey told Green that he did not have much work, but could give Green work "if you will bear with me." Green asked for the meaning of the remark, and Frey said, "Damn it, it is against the law for me to talk facts with the best friend I've got, but I will see that you get work if you cut out some of that up there." It is apparent from the record that the remarks by Clark and Frey, somewhat cryptic out of their environmental context, referred to Green's S. W. O. C. membership and activity. On December 28, 1937, Frey told Frank Coats : "I would like to have you back with us just like you were before. This union busi- ness isn't going to get you any place." On January 6, 1938, Clark told Coats: "This union won't do you any good. I went through one of these damned things. Flint is just contrary enough to shut this damn place down." A few minutes later Frey told Coats that Clark thought Coats was going to quit the S. W. O. C., and that "it sure makes Mr. Clark mad every time he sees one of those C. I. O. buttons." Coats then dropped his button in Frey's pocket. Frey said, "I am glad you have changed your mind and are coming back with us." He then patted Coats on the shoulder and added, "Frankie, this company pays me big money to run this place and I am not going to let a union come in here and take it away from me." Coats thereafter refrained from attend- ing S. W. O. C. meetings and serving. as S. W. O. C. treasurer. On January 25, 1938, Frey taxed Coats with the fact that his name had been "brought up" in a S. W. O. C. meeting and that he had been associating with Carl Green and Harry Miller, both S. W. O. C. members. Early in January 1938 Clark asked W. L. Mills if he would "lay off" S. W. O. C. meetings if he went back to work. The findings previously made in this section are based on testi- mony by Green, Coats, and Mills, of which all, or almost a11, was contradicted by Clark and Frey. The record is such, however, as to inspire in us, as in the Trial Examiner, a strong distrust of the credibility.of Clark and Frey. We find that by the coercive remarks and conduct of its super- visory officials, described in this section, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities set forth in Section III, above , occur- ring in connection with the operations of the respondent described in Section I, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has engaged in unfair labor practices by interfering with, restraining, and coercing its employees ,in the exercise of the rights guaranteed in Section 7 of the Act, and by discriminating in regard to hire and tenure of employment to dis- courage S. W. O. C. membership. Accordingly, we shall order the respondent to cease and desist from engaging in such unfair labor practices. Moreover, in order to effectuate the policies of the Act, we shall order the respondent to offer W. P. Whitten immediate and full reinstatement to his former or a substantially equivalent posi- tion, without prejudice to his seniority and other rights and privi- leges. We shall also order the respondent to make Whitten whole for any loss of pay he may have suffered by reason of his discrimina- tory discharge, by payment to him of a sum of money equal to the amount which he normally would have earned as wages from Jan- uary 14, 1938, until the date of the offer of reinstatement, less his net earnings during said period."' Upon the basis of the foregoing findings of fact and upon 'the entire record in the case, the Board makes the following : CONOLusIONs OF LAW ' 1. Steel Workers Organizing Committee, affiliated with the Con- gress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of W. P. Whitten, thereby discouraging membership in Steel Workers Organizing Committee, the respondent has engaged in, and "By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for the unlawful discrimination and the consequent necessity of the employee 's seeking employment else- where See Matter of Crossett Lumber Company and Uncted Brot1erhood . of Carpenters and Joiners of America, Lumber and Sawmill Workers 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 to the appropriate fiscal agency of the .Federal, State, county , municipal, or othergovern- ment or governments which supplied the funds for'said work-relief projects:' ' TULSA BOILER AND MACHINERY COMPANY 857 is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (3) of the Act as respects W. F. (Frank) Coats, Harry C. Miller, John C. Hoag, Jr., Carl Green, It. B. Jones, J. C. Cloud, C. W. Fitzpatrick, L. J. Lyle, W. L. Mills, Lawrence C. Wiggins, J. A. Miller, Lawrence Wooldridge, H. G. Wooldridge, Harold B. Cogbill, J. T. Arp, I. A. Stockton, Jack (Francis Joseph) Spratt, Grady Cunningham, Claud Morris, J. W. Cox, Jess Cloud, Elmo Cox, Walter C. Mahon, Archie Bottomley, Connie (Mickey) Gordon, R. L. Wilson, A. L. Kerr, R. L. Vance, Lawrence Hardesty, L. H. Haynes, and R. H. Ferguson. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, Tulsa Boiler and Machinery Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Steel Workers Organizing -Coi&-' mittee, or any other labor organization of its employees, by'discharg- ing any of its -employees or in any other manner discriminating' in' regard to the hire, tenure of employment, or terms or conditions of their employment because of membership in or activity in connection with any labor organization; (b) 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 con- certed activities for the purpose 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) Offer to W. P. Whitten immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges; 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make whole W. P. Whitten for any loss of pay he may have suffered by reason of his discriminatory discharge by- payment to him df a sum of money equal to that which he would have earned as wages from January 14, 1938, the date of the illegal termination of his em- ployment, to the date of the offer of reinstatement, less his net earn- ings during that period;12 deducting, however, from the amount otherwise due to said W. P. Whitten monies received by him during said period for work performed upon Federal, State, county, mu- nicipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects ; (c) Post immmediately in conspicuous places at its plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating : (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a) and (b) of this Order; (2) that the respondent will take the affirmative action set forth in para- graphs 2 (a) and (b) of this Order; and-(3) that the respondent's employees are free to become or remain members of Steel Workers Organizing Committee and the respondent will not discriminate against any employee because of membership or activity in that organization ; (d) Notify the Regional Director for the Sixteenth Region in writing 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 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 as respects W. F. (Frank) Coats, Harry C. Miller, John C. Hoag, Jr., Carl Green, R. B. Jones, J. C. Cloud, C. W. Fitzpatrick, L. J. Lyle, W. L. Mills, Lawrence C. Wiggins, J. A. Miller, Lawrence Wooldridge.- H. G. Wooldridge, Harold B. Cogbill, J. T. Arp, I. A. Stockton, Jack (Francis Joseph) Spratt, Grady Cunningham, Claud Morris, J. W. Cox, Jess Cloud, Elmo Cox, Walter C. Mahon, Archie Bottomley, Connie (Mickey) Gordon, R. L. Wilson, A. L. Kerr, R. L. Vance, Lawrence Hardesty, L. H. Haynes, and R. H. Ferguson. MR. WILLIAM M. LEISERSON took no part in the consideration of the above-Decision and Order. a See footnote 11, supra.