R. C. Mahon Co.

In the Matter of R . C. MAHON COMPANY and STEEL WORKERS ORGAN- IZING COMMITTEE (AFFILIATED WITH THE C. I. 0.) Case No. C-1428.-Decided May 22, 1940 Structural Steel Manufacturing Industry-Interference, Restraint, and Coer- cion: questioning of employees as to union affiliation and desires for represen- tation after petition for investigation and certification filed with Board; refusal to meet with representative of union not employee of respondent ; threats to close plant or sell business if union gained control-Disc,unsnation : charges of: sustained as to active union member reduced to half-time work, allegedly because insufficient work was available, while others employed at similar jobs; sustained as to employee discharged because temporarily working in plant which was shut down ; not sustained as to 18 unskilled employees discharged during slack period-Back Pay: awarded : one employee for loss during period of half-time employment ; as to discharged- employee, to date of obtaining other employment. Mr. William J. Avrutis, for the Board. , Mr. Albert E. Meder and Mr. Thomas E. Wilson, of Detroit, Mich., for the respondent. Mr. Julius Sobonya, of Detroit, Mich., for the Union. Miss Marcia Hertzmark, of counsel to the Board. DECISION AND ORDER STATEMENT OF TIIE CASE Upon charges and amended charges duly filed by Steel Workers Organizing Committee, herein called the Union,' the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventh Region (Detroit, Michigan), issued its complaint dated June 29, 1939, against R. C. Mahon Company, Detroit, Michi- gan, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein ' The particular organization involved herein is Local 1279 of Amalgamated Association of Iron, Steel and Tin Workers, an affiliate of Steel Workers Organizing Committee. Both are affiliated with the C. I. O. 23 N. L. R. B., No 116. 1084 R. C. MAHON COMPANY 1085 called the Act. The complaint and notice of hearing were duly served upon the respondent and upon the Union. Concerning the unfair labor practices, the complaint alleged in substance (1) that in or about November 1937, and at various times thereafter, the respondent questioned its employees as to their union membership and compelled them to sign written statements indi- cating their preference between the Union and a shop committee for purposes of collective bargaining; (2) that the respondent dis- charged or laid off 18 named persons 2 between August 1937 and March 8, 1938, and thereafter refused to reinstate said persons, for the reason that they had joined and assisted the Union, and engaged in concerted activities for the purposes of collective bargaining and other mutual aid and protection; and (3) that during the period from February 1938 to February 1939 the respondent discriminated against Edward Bella by restricting his employment to part-time work for the reason that he had joined and assisted the Union and engaged in concerted activities for the purposes of collective bargain- ing and other mutual aid and protection. On July 7, 1939, the Union filed a Second Amended Charge, alleg- ing that in December 1937 the respondent discriminated against Felix Rumienski in regard to his hire and tenure of employment. On July 8, 1939, counsel for the Board served notice of motion to amend the complaint by adding thereto the name of Felix Rumienski as one of the employees discriminatorily discharged and refused rein- statement, and by indicating that Frank Szableski, an employee pre- viously alleged to have been laid off and refused reinstatement, had been reemployed by the respondent on or about January 17, 1939. On July 10, 1939, the respondent filed an answer to the complaint denying the commission of the unfair labor practices alleged in the complaint and alleging affirmatively that the employees named in the complaint were laid off for lack of work and had not been reinstated because of an absence of work for which they had proved themselves capable. The respondent also alleged that matters contained in cer- tain paragraphs of the complaint, concerning the respondent's inter- rogation of employees, had been adjudicated in an earlier proceeding before the Board, and for this reason it moved to strike such para- graphs from the complaint. Pursuant to notice, a hearing was held at Detroit, Michigan, from July 17 through 20, 1939, before Peter F. Ward, the Trial Examiner duly designated by the Board. The Board and the respondent were 2 Theodore Benyk, Ignatius Bosek, Louis Chrostowski , George Harker , Charles D. Hoff- man, Lawrence Tamrisko, Frederick Morse Johnson , Joseph Jovanov , Nick Klosich, John Kovacich , Zdislew J. Kurmanoski , Walter Loser, Sidney McNa, Hugh McNeilly , Melvin Pigula, Harry Simen, Frank Szableski , and Jesse Thorn. 3 Incorrectly designated in the complaint as James Bell 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represented by counsel and participated in the hearing. A represent- ative of the Union appeared in its behalf. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was afforded all parties. At the com- mencement of the hearing the Trial Examiner granted a motion by counsel for the Board to amend the complaint pursuant to the notice previously given. At the conclusion of the Board's case, the Trial Examiner reserved ruling upon a motion of counsel for the Board to conform the pleadings to the proof. The motion is hereby granted. During the course of the hearing the Trial Examiner made a number of other rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings and finds that no preju- dicial errors were committed. The rulings are hereby affirmed. After the hearing the respondent submitted a brief to the Trial Examiner. Thereafter, the Trial Examiner issued his Intermediate Report, dated November 20, 1939, copies of which were duly served upon all the parties, finding that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act. He recommended that the respondent cease and desist from engaging in unfair labor practices, and that it make whole Edward Bell for the monetary losses suffered by him as a result of the respondent's discrimination against him. He also recommended that the com- plaint, as amended, be dismissed as to 19 of the complainants, but that 16 of them be placed upon a preferential hiring list to be offered employment as soon as a need for their services arose. The Union and the respondent filed exceptions to the Intermediate Report. The respondent filed with the Board a brief in support of its exceptions and a supplemental brief in opposition to the Union's exceptions. It also requested permission to argue orally before the Board. Pursuant to notice, a hearing was held before the Board in Wash- ington, D. C., on April 11, 1940, for the purpose of oral argument. The respondent was represented by counsel. -The Union did not ap- pear. The Board has considered the exceptions to the Intermediate Report, and the briefs and oral argument of the respondent in sup- port of its exceptions, and, in so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. TIIE BUSINESS OF THE RESPONDENT R. C. Mahon Company, a Michigan corporation with its'plant and office in Detroit, Michigan, is engaged in the fabrication and manu- R. C. MAHON COMPANY 1087 facture of structural steel, sheet-metal equipment, rolling doors, roof- ing, and other sheet-metal products. Its operations are carried on in a structural-steel division, consisting of three plants and a ware- house, and a sheet-metal division, composed of a plate shop and a sheet-metal shop.4 The respondent fabricates from 1 to 11/2 per cent of the total fab- ricated structural steel sold in the United States. From November 1, 1936, to October 31, 1937, the respondent expended in excess of $3,000,000 for raw materials, principally steel, and during the period from November 1, 1937, to October 31, 1938, expended in excess of $2,000,000 therefor. Over 75 per cent of these sums represented the cost of raw materials shipped to Michigan from outside°the State. The respondent's sales from November 1, 1936, to October 31, 1937, amounted to $6,088,499.62; and from November 1, 1937, to October 31, 1938, its sales were in excess of $4,000,000. Approximately 50 per cent of these amounts represented products shipped from Detroit to points outside the State of Michigan. On July 4, 1939, the respondent employed 336 production and maintenance employees but the number has, on previous occasions, varied from about 300 to 700. H. THE ORGANIZATIONS INVOLVED Steel Workers Organizing Committee and Amalgamated Associa- tion of Iron, Steel and Tin Workers, Local 1279, are labor organiza- tions affiliated with the Congress of Industrial Organizations. Local 1279 admits to membership all employees of the respondent except bridgemen, clerks and office help, draftsmen, watchmen, and persons in a supervisory capacity. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In about February 1937 the Union began a campaign to organize the respondent's production and maintenance employees. On March 9, 1937, at a meeting of the Union which was held on the respondent's premises, a list of demands was drawn up and R. C. Mahon, president of the respondent, was then called in to discuss the various items with the assembled group. Mahon stated that he would recognize the Union only after the American Bridge Company had recognized it, but he agreed to grant wage increases requested by the Union, and he reached an agreement with the Union as to hours of work. There is a conflict * A]l of the respondent's plants and divisions are located on the same premises and are under one roof. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the testimony, which we will discuss more fully hereinafter, as to whether or not an agreement was reached on the question of seniority. In July 1937 a committee of employees met with Mahon and re- quested that he meet Charles Kiser, the district director of the Steel Workers Organizing Committee, for the purpose of discussing an agreement with the Union. Mahon refused to meet Kiser, or any "out- sider," but agreed to meet with the shop committee at any time. On July 28, 1937, Kiser addressed a letter to the respondent requesting a conference. The letter was not answered. During the following month the committee of employees again called on Mahon and asked that he meet Kiser, but were once more informed by Mahon that he would not meet with "outsiders." Mahon's refusal to meet with the representa- tive of the Union discredited the Union and discouraged membership therein. Other examples of the respondent's efforts to discourage union ac- tivity among its employees are shown by the testimony of Walter Loser, who had been employed as a helper in Plant 1, and Lawrence Jamrisko, a millwright helper. Loser quoted George Kliner, a foreman on the paint floor in Plant 1 as saying, in July 1937, that Mahon "would never recognize a union. Before he would recognize the Union he would close the shop." Jamrisko testified to the same effect. In addition, Kliner told Jamrisko, during the same conversation concern- ing the Union, according to the latter's testimony, "some day you be sorry." Kliner did not testify and the statements attributed to him are not denied. We find that they were made. Frederick Morse Johnson, previously employed as a helper in the warehouse, testified that, on an occasion in the summer of 1938 when he applied for work, John Nuber, a labor foreman, told him that "if the C. I. O. or the Steel Workers Organizing Committee gained control in the Mahon shop, Mr. Mahon was likely to sell out" to some "men from Boston, bankers or such." Mahon denied having told Nuber that he planned to sell out. Nuber did not testify, and it is not disputed that he made the above statement to Johnson. Whether or not Mahon actually made such a statement is not controlling here since the ex- pression of such a threat by a foreman served to discourage union activity whether based upon fact or not. On June 19, 1937, the Union filed with the Board a petition, and on October 27, 1937, an amended petition, requesting an investigation and certification of representatives of the respondent's employees. On November 26, 27, and 29, 1937, Mahon summoned to his office, one at a time, 3615 production and maintenance employees and, in the presence 5 Although the exact number of persons then employed is not shown , it appears that on November 9, 1937, 489 production and maintenance employees were working. R. C. MAHON COMPANY 1089 of M. A. Snyder, personnel manager, and a stenographer, read to each the following statement : We are to appear before the National Labor Board on Decem- ber 6th. Local 1279, Steel Workers Organizing Committee is asking that it represent in bargaining all our employees. In order that we may know how our employees feel about the matter we have prepared a questionnaire we would like to have you fill out. There will be no discrimination shown against you regardless of how you answer the questions. Each employee was thereupon asked the following questions, after which the card was filled out and signed by the employee : Badge No. ------ Employee's Name _________________________ Have you ever signed an application for membership in Local #1279, Steel Workers Organizing Committee? Yes ( ) No ( ). If you ever joined Local #1279, Steel Workers Organizing Com- mittee, when did you join? Date ------------- If you ever joined Local #1279, Steel Workers Organizing Committee, for what month did you pay your last dues? Month ------ 19__. Do you want Local #1279, Steel Workers Organizing Com- mittee to bargain with The R. C. Mahon Company for you? Yes( )No( ). Signed -------------------- Date ---------------------- Witness ------------ -------- The evidence discloses that immediately upon being called to Mahon's office and being informed as to the purpose of the interview , the men became apprehensive and hid or discarded their union buttons. A hearing upon the Union's petition was held on December 13, 1937, following which the Board issued a Decision and Direction of Elec- tion .6 The Board conducted an election at the respondent's plant on February 25, 1938, to determine the employees ' choice of a representa- tive for the purpose of collective bargaining. On October 20,'1938, the Board issued a Supplemental Decision and Order ? stating that the results of the election showed that no collective bargaining repre- sentatives had been selected by a majority of the employees within G Matter of R. C. Mahon Company and Local 1279, Steel Workers Organizing Committee, 5 N. L R B. 257. T Matter of R. C. Mahon Company and Local 1279, Steel Workers Organizing Committee, 9 N. L. B B. 430. 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the appropriate unit. The Decision further indicated that on March 2, 1938, the Union filed with the Regional Director objections to his Election Report, contending that the respondent had engaged in un- fair labor practices regarding the conduct of the election, and that .certain employees excluded by the Board from the appropriate unit had participated in the election. The Decision stated further that the Regional Director informed the Board that the Union had failed to submit any evidence regarding its objections, that the secret ballot was fairly and impartially conducted, and that he recommended that the objections be overruled. The Board thereupon dismissed the petition for investigation and certification of representatives. The respondent contends that it did not engage in unfair labor practices by questioning its employees as to their union affiliation since Mahon's action was prompted by a desire to ascertain whether or not the Union had a majority and that, in the event he found that it did, he intended to bargain with the Union without the necessity for an election by the Board. Even though we assume the truth of this contention, the respondent's conduct was in violation of the Act. The Act requires that the Board settle questions concerning representation, and provides that it may conduct an election by secret ballot to this end. The purposes of such provisions, among others, are to prevent an employer from having to determine such problems, especially by questioning his employees, and to allow individual employees to express their desires concerning representation without disclosing them to their employer. Mahon's action thwarted the purposes of the Act. He knew that a petition had been filed with the Board and that the question he sought to resolve would be determined by the Board in accordance with the purposes and provisions of the Act. Moreover, the employees were not told the purpose of the interview, other than that it was "in order that we may know how our employees feel about the matter." In addition, the method of conducting the poll was not conducive to a free choice on the part of the employees since the vote was taken by the president of the respondent in the presence of the personnel manager, who admittedly does all the hiring for the respondent. Further, if Mahon merely wanted to enlighten himself and dispel his doubts as to the Union's majority, it is difficult to under- stand why he found it necessary to have mimeographed cards-signed, dated and witnessed. Also unexplained is the respondent's reason for inquiring on what date employees joined the Union and when they last paid their dues. Neither of these questions is necessarily pertinent in determining representation for collective bargaining since employees who have never joined the Union may designate it as their agency for that purpose. The respondent contends also that the question of whether or not Its interrogation of employees was an unfair labor practice has been R. C. MAHON COMPANY 1091 adjudicated.•by the Board in its Supplemental Decision and Order in the representation case. This contention is without merit. No unfair labor practices were alleged or proved, nor could they have been, in that proceeding. The Board's Decision in that case was merely that the election had been fairly and impartially conducted and that no representatives for collective bargaining had been chosen by the respondent's employees. It did not purport to settle the charge made here. We find that the respondent, by questioning its employees as to their union membership and desires for representation," by its refusal to meet with a representative of the Union," and by the statements of its supervisory employees recited above, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them in Section 7' of the Act. B. The charges of discrimination During the period from November 30, 1937, to March 8, 1938, the respondent's business declined to such an extent that it was necessary to make extensive reductions in its production and maintenance force. The complaint, as amended, alleges that in the process of reducing its force the respondent discriminated against the 20 persons named in the complaint by discharging or laying off 19 of them and failing to reinstate thel,q,.and by putting another on half time, for.the reason that they had joined and assisted the Union and engaged in concerted activities for the purposes of collective bargaining and other mutual aid and protection. 1. The respondent's seniority and hiring policies It is undisputed that the respondent followed no seniority policy prior to March 9, 1937. The Union contends, however, that at the meeting between Mahon and the Union on March 9, 1937, the respond- ent agreed to observe a seniority plan. Although the Board's wit- 8 The Board has held that it is an unfair labor practice to question employees as to their union membership and activity See Matter of Trenton Garment Company and Interna- tional Ladies" Garme'nt Workers Union, Local 2738, 4 N. L R B . 1186; Matter of Common. wealth Telephone Company and Theodore R. Siplon, Walter F Seidler and International Brotherhood of Electrical Workers, 13 N. L R B 317 The Board has also held that it is an unfair labor practice for an employer to conduct an election among its employees. See Matter of Remington Rand, Inc and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N L. R. B 626, enf'd , National Labor Rela- tions Board v. Remington Rand, Inc, 94 F. ( 2d) 862 (C. C A. 2) ; Matter of Eagle Manu- facturing Company and Steel Workers Organizing Committee, 6 N L. R. B. 492, enf'd, National Labor Relations Board v Eagle Manufacturing Company , 99 F. (2d ) 930 (C C A. 4) ; Matter of McNeely it Price Company and National Leather Workers Association, Local No. 80, of the C. I. 0., 6 N . L R. B. 800 , enf'd as mod, National Labor Relations Board v. McNeely it Price Co, 106 F. (2d) 878 (C. C A 3). 9 Matter of Niles Fire Brick Company and United Brick Workers ' L I. U. No 198, 18 N L R B 883 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nesses at the hearing were in accord that Mahon had agreed to follow a seniority plan, they did not concur on the question of whether Mahon had promised to follow "straight," plant, or shop seniority, nor did these witnesses all give the same meaning to the terms which they testified were used. It is impossible to determine from their testimony what type of seniority the Union contends the respondent agreed to use. The respondent denies that any agreement on senior- ity was reached. Mahon testified that when the question was raised in the meeting of March 9, he told the employees that "they were on a very big subject when they wanted seniority, and it wasn't a. matter that could be decided in a minute, and I thought the best way to take that subject up was to have their committee discuss it with me and go over it." He stated that his suggestion was thereupon agreed to but that, although the committee came to see him twice thereafter, seniority was not mentioned on either occasion. After Mahon gave the foregoing testimony, seven witnesses for the Board testified. Only one, Harker, was questioned with reference to, Mahon's version of what had occurred and Harker's testimony sup- ported in a measure that of Mahon.1° The Trial Examiner found, as do we, that the respondent did not enter into an agreement whereby seniority was to be recognized. We find that no seniority rule has ever been followed in the respondent's plant, either in laying off or rehiring employees. All, hiring for the respondent is done by Snyder, the personnel manager, at the respondent's employment office. Persons seeking em- ployment gather in this office and, when employees are needed, are interviewed and hired by Snyder. At times the respondent's super- intendents, in charge of construction projects outside the plant, come 10 Harker testified, in part, as follows Q. Do you recall anything being said by Mr Mahon or anyone else as to the ap- pointment of a committee to see him after the meeting and discuss the details of seniority? A. Yes Q. What was said about that? A He said he would meet the committee after the other fellows all went home- Q To discuss seniority? A. To discuss seniority r n s • n s A I don't remember very clearly what was said, but I know there was a griev- ance committee Q. A grievance committee? A Yes. Q I am talking not about a grievance committee, but I am talking about seniority. A Oh, yes. Q Was anything said about a committee for seniority" A. Mr Mahon agreed to the seniority right here in the meeting. Q. I say, did he say that a committee should see him later about seniority" A. Oh, I don't recollect anything of that. R. C. MAHON COMPANY 1093 to Snyder and request men to take jobs immediately. Snyder there- upon hires men from those waiting in the employment office or sends out men already employed and replaces them with new employees. The respondent has no policy of recalling former employees when vacancies occur in the plant, nor does it take applications for future employment when work is not available at the time. The Union, in its exceptions to the Intermediate Report, points out a number of instances when employees are alleged to have been called back to work by telegram or by foremen. The evidence does not sustain the Union's exceptions in this respect.'1 Since about 1935 the respondent has made an attempt to employ men of good health and versatility in order to reduce the cost of compensation claims and stabilize employment. Since 193,6 the re- spondent has required a physical examination of all men hired. The results of such hiring policy have been in general to secure younger and better educated personnel. The Union does not question that the respondent has put into 'effect and carried out such policies. In view of our finding above as to the respondent's method of hir- ing, we also find that the persons alleged in the complaint to have been "laid off for an indefinite period," had no expectancy of being reinstated and that they were in reality discharged, rather than laid off.12 This finding does not, however, preclude us from deter- mining whether or not the respondent has discriminated against any of the complainants herein by failing to rehire them upon the resumption of full operations in the plant.1d Nor are we precluded, by our find- ings that the decline in the respondent's business necessitated a diminution of force and that no seniority policy was in effect, from determining whether the complainants were discriminatorily chosen for discharge. We turn to a consideration of the circumstances sur- rounding the alleged discrimination against each of the complainants. 2. The complainants Edward Bell was reduced to half-time employment during the period from December 18, 1937, to January 30, 1939, allegedly be- cause of his union activity. Bell became president of the Union in the summer of 1937. He was a member of the committee which re- quested Mahon to meet with Kiser, the union organizer, and had interviewed the respondent's general superintendent, Reynolds, and "We refer specifically to the allegations that Benyk , Chrostowski , McNa, and Johnson were recalled. 12 The terminations of employment will hereinafter be referred to as discharges , although the witnesses testified that they were laid off 13 Matter of Waumbec Mills, Inc. and United Textile Workers of America, 15 N L. R B 37. 283034-41-vol 23--70 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foremen Graham Dick and Frank. Walden in regard to the, discharge of Joseph Jovanov, one of the complainants herein, in August 1937. Bell was employed by the respondent in 1929 as an electrician. He was laid off in 1931 and 1932 along with a large number of other employees during a slack period. He was reemployed in 1933 and worked as a machinist until November 18, 1936, when he again started working as an electrician. On December 18, 1937, he was put on a (calf-time basis, working alternate weeks with Lawrence Christian, who had commenced working for the respondent as an electrician on June 6, 1936. Christian was also a union member but not an especi- ally active one. On November 21, 1938, Christian was returned to full-time status and on January 30 , 1939, about 9 weeks later, Bell was put back on a full-time basis. The record shows that at various times during the period when the respondent claims it did not have enough work for both Bell and Christian to put in full time, three men, McDonough , Reiman, and Shvic, were employed in the main- tenance department. McDonough was employed on September 8, 1938, according to Mahon's testimony , as a helper for Plant 1, but "found his way into the maintenance department ." Complainant Jamrisko, who was em- ployed as a helper in the maintenance department and who also cites McDonough's employment as discrimination against him , testified that McDonough did the same work as Jamrisko had done previously, that is, repairing. machines and threading rods. It does not appear whether this work requires a knowledge of electricity. Reiman, a union member, was discharged on January 1, 1938, shortly after Bell and Christian began to alternate , and was rehired on Oc- tober 4, 1938 . Mahon stated that -Reiman was put to work in the yard and was a production employee, but that he had a sufficient knowledge of electrical work to do certain repair jobs. However, Reiman is listed on the respondent's pay roll as an electrician. Slivic is also a member of the Union. He is listed on the respond- ent's pay roll as a machinery repairman and the respondent stated at the hearing that he is engaged in both production and maintenance work. The respondent .admits that it was not a common practice to divide the work of employees as was done in the case of Bell and Christian. In so far as the record discloses , this was the only instance in which work was shared. The respondent contends , however, that it desired to retain the services of both electricians rather than to discharge either. We have found that the respondent interfered with the efforts of its employees to organize ; that Bell was one of the leaders in such organizational activities and was president of the Union ; that the R. C. MAHON COMPANY 1095 relegation of Bell to half-time employment was not in ' accordance with the respondent's usual practice; that Christian was returned to full-time employment about 9 weeks before Bell; and that, at the time when the respondent alleged there was insufficient work for both electricians, three other persons were given similar employment. Under these circumstances we find that the respondent refused to employ Bell on a full-time basis from December 18, 1937, to January 30, 1939, because of his union membership and activity. We find that the respondent discriminated against Bell with regard to terms or conditions of employment, thereby discouraging member- ship in the Union, and by such action has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.14 Charles Hoffman was vice president of the Union and a member of the committee which called upon Mahon in July and August 1937. Hoffman was employed as a riveter in 1934 and ordinarily worked in plant 2 of the structural-steel division. At the time of a general shut- down in plant 3, from March 4 to 8, 1938; Hoffman was temporarily working in that plant because the bulkhead on which he was engaged was too large for plant 2. His foreman, Graham Dick, discharged him on March 8 and, when Hoffman protested that he did not belong in plant 3, told him, "I didn't have nothing to do with it; it came from the head office." Dick also told Hoffman that there were no rivets to drive, but Hoffman stated at the hearing without contradic- tion that he still had some riveting to do when he was discharged. The evidence shows that four other riveters were ordinarily employed by the respondent, that all of them were union members, and that one of them was discharged on February 25, 1938. The respondent made no attempt to show that, at the time Hoffman was discharged, there was not sufficient work in plant 2 for him, nor that he would have been discharged had he been working in plant 2 at the time plant 3 was closed. Hoffman testified that John Olson, also a union member, who, previous to the decrease in personnel, was Hoffman's helper and who was discharged at the same time, was rehired on August 24, 1938, as a riveter and now has his job. When Hoffman, learned.,that•Olson had been taken back he inquired of Snyder, the personnel manager, why Olson was given his job. Snyder replied that the arrangement was only temporary. Hoffman testified, and Snyder admitted, that 14 See Matter of Fort Wayne Corrugated Paper Company and Local No 182, International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, 14 N L R B 1, enf'd, Fort Wayne Corrugated Paper Company v. National Labor Relations Board, 111 F. (2d) 869 (C C A 7), where we found discrimination as between two union members, one more active in the onion than the other. 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Olson was known as a heavy drinker, but Snyder denied that Olson: had, on one occasion, been discharged for drinking. The respondent offers no reason for discharging Hoffman, who' was regularly employed in Plant 2, at the time of the shut-down of Plant 3. It defends its failure to rehire him instead of Olson on the ground that Graham Dick, Hoffman's foreman, did not want him back in his department because he was too argumentative and "hot tempered." Mahon testified that Hoffman would have been rehired had there been a vacancy under another foreman. Hoffman denied that he had had any arguments with Dick before his discharge, and from the undisputed testimony as to what Dick told him at the time of his discharge and the evidence as a whole, we find that he had not. We find that Hoffman was discharged because of his union member- ship and activity. By discharging Hoffman the respondent dis- criminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization, and by such action has interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. About 6 weeks after his discharge Hoffman obtained work on the W. P. A. where he received $60 a month and later $85 a month. Thereafter he worked for I week in a navy yard, and about August 1938 obtained a job with Mechanical Handling Company. He worked there until about December, 1938, was out of work for 3 weeks, and was employed on about January 1, 1939, by Steel Plate and Shape Company, where he is now working. Hoffman does not desire reinstatement. Hugh McNeilly, a member of the Union, began working for the respondent in 1925 and was employed as an assembler at the time of his discharge on March 8, 1938. Only one other assembler, Dobbs, also a union member, is listed on the respondent's pay roll of Novem- ber 9, 1937, and he was discharged on the same date as McNeilly. It does not appear that any assemblers have been employed by the respondent since that date. McNeilly alleges that La Frambois, his junior in the respondent's employ but also a union member, has re- placed him. La Frambois' employment card shows that he was hired as a helper and the respondent states that he is now employed as a "pusher" in charge of a gang of men erecting or fabricating steel. In view of the fact that the respondent does not take into consider- ation seniority, that McNeilly was not especially active in the Union, and that La Frambois is also a union member, we find that the respondent did not discharge McNeilly because of his union membership. We have found that the respondent's policy was to hire at its employ- ment office the persons it needed who were then present. There is no R. C. MAHON COMPANY 1097 .showing that McNeilly was refused employment at a time when his services were required or that any other persons were employed on the dates when McNeilly applied for work. We find that McNeilly was not refused employment because of his union membership. George Harker, a member of the Uniori, was employed by the re- spondent on May 10, 1934, as a fitter's helper. He was discharged on March 8, 1938, at which time he was employed as a crane operator. He .charges that Joe Mankis, who is also a union member, has replaced him. Mankis and Harker had been operating alternate shifts on the same crane. The respondent had in its employ at the time of Harker's discharge 15 other crane operators, all of whom were members of the Union. One other crane operator was also discharged at about the time Harker was dismissed. We find that Harker was not discharged because of his union mem- bership, and, for the reasons stated in discussing the case of McNeilly, we find that Harker was not refused reemployment because of his union membership. Nick Klosich, a member of the Union, was employed as a fitter's 'helper in August 1935. He testified that his work was never criticized but that his foreman, John Nuber, laid him off on January 16, 1939. He applied for work on three occasions thereafter but each time was told that there was no work available. The respondent contends, and we find, that Klosich was discharged because his work was unsatisfac- tory and because he refused to obey orders, although he had been warned to do so. There is no evidence that he applied for work at a time when other persons were being hired to perform jobs which he was capable of doing. We find that Klosich was not discharged or refused employment because of his union membership. Frank Szableslci, Walter Loser, Theodore Benyk, Joseph Jovanov, John Kovacich, Jesse Thorn, Harry Sinzern-, Louis Chrostowski, Felix Rumienski, Melvin Pigula, Zdislew Kurmanoski, Ignatius Bosek, and Lawrence Jamrisko were helpers or loaders in the structural-steel divi- sion prior to November 30, 1937. They may be considered as a. group for the purpose of determining whether or not they were discriminated against by being discharged at the time of the reduction in the number of the respondent's employees and by. the subsequent failure to re- employ them. It appears from the respondent's pay roll of November 9, 1937, that 119 helpers and loaders were employed in the structural- steel division. Of that number 105 were union members and 14 were not. Thereafter the respondent discharged approximately 30 per cent of these employees, some of whom were subsequently rehired. An ex- amination of the respondent's pay-roll records indicates that neither 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the number of union men discharged nor the number of non-union men rehired was disproportionately large. The employment cards of the complainants disclose that, as to all except two, Loser and Benyk, it is recommended that they be re- employed. In addition, one of the complainants, Jovanov, was employed on a night crew, and another, Kurmanoski, was working alternate day and night shifts. It is not disputed that the respondent has not operated a night shift in any department since the discharges. A number of the complainants allege that they were replaced by other employees or by new employees. The evidence shows that, in each instance where new employees were hired, the date of such hir- ing was about the time that business had improved. The respondent cites, in reply to the allegations of discrimination in rehiring the helpers and loaders, its policy of hiring "at the door," its efforts to employ more versatile men who might be shifted from one type of job to another in the event the need arose to do so, and the fact that none of the 13 complainants was a skilled laborer. It con- tends that it filled positions from men who applied on the days when employees were needed and that it would have employed some of the complainants had they been present at those times. One of them, Szableski had been reemployed at the time of the hearing. There is no showing that any of these complainants was refused employment at the time another person was hired. Of the 13 complainants in the group now under consideration, only two, Loser and Kovacich, were shown to have been in any way active in the Union. Loser was a shop steward and Kovacich was a member of the committee which called on Mahon to request that he meet Kiser, the union organizer. Although Kovacich testified that he was one of the organizers of the Union, he added, "Now Mr. Mahon can know." We find that the respondent did not discharge or refuse to reem- ploy Szableski, Loser, Benyk, Jovanov, Kovacich, Thorn, Simen, Chrostowski, Rumienski, Pigula, Kurmanoski, Bosek, and Jamrisko because of their union membership or activity. Frederick Morse Johnson, a helper in the structural-steel division, began working for the respondent in 1933 on outside erection work. In 1935 he was made a fitter's helper, and in 1936 he was transferred to the warehouse as a general helper on the night shift. He was discharged on November 30, 1937., On February 3, 1938, Johnson applied for work to Superintendent Reynolds who told him to come to work the following Monday. As Johnson, was leaving the plant he encountered Edward Bell, president of the Union, and requested that Bell supply him with a February R. C. MAHON COMPANY 1099 union button. About 30 minutes later, Johnson was notified at his home that he was not to report on Monday . Johnson testified that Reynolds' son-in-law , Edwards, an assistant to the warehouse fore- man, was standing about 3 feet from Bell and him at the time he requested the union button. In view of the fact that the respondent had known of Johnson's union membership at least since the date of the Board's hearing in the representation case, when it was given a list of union members, we do not find that the respondent's change of its plan to hire Johnson was due to his union membership . It is not shown, moreover , that Edwards heard or reported the conversation between Bell and Johnson. About May 1 , 1938, Johnson applied for work on a construction job being performed by the respondent in New Boston, Illinois. He worked 2 days, was given a physical examination by the respondent's doctor, who recommended that he be rejected because of a physical disability, and was discharged on May 5. In view of the facts stated above, and the further fact that Johnson worked on the night shift in the warehouse which has not been re- sumed, we find that Johnson was not discharged or refused reemploy- ment because of his union membership. Sidney McNa is the only complainant who was employed in the sheet-metal department. He started working in 1935 as a helper and continued until November 11, 1938, when he was discharged. He applied for work on numerous occasions thereafter . He was a mem- ber of the Union. The record shows that the reduction in the force of the sheet-metal division was spread over a longer period than in the structural-steel division, and that of 110 helpers and loaders previously employed, of whom 12 were union and 98 non-union , 67 were laid off between about August 1937 and April 1939. Of those dismissed , 5 were union and 62 were non-union . Twenty-two of the persons so discharged, one union member and 21 non-union, had been rehired at the time of the hearing . Although the greatest number of lay-offs occurred during the same period as those in the structural-steel division, a further decrease in business in the sheet -metal division commenced in August 1938. There is no showing that McNa was refused employ- ment at a time when his services were required or that any other per- sons were employed on the dates when McNa applied for work. We find that McNa was not discharged or refused reemployment because of his union membership. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, oc- curring in connection with the operations of the respondent described 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 and to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondent discriminated against Edward Bell by refusing to employ him on a full-time basis from December 18, 1937, to January 30, 1939. We shall order that he be made whole for any loss of pay he has suffered by reason of such discrimination by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the period the respond- ent discriminated against him, less his earnings 15 during such period. We have further found that the respondent discriminatorily dis- charged Charles Hoffman on March 8, 1938. Hoffman obtained another job on January 1, 1939, which he held at the time of the hearing. He testified that he did not desire reinstatement. We shall not order his reinstatement. We shall, however, order the respondent to make Hoffman whole for any loss of pay he has suf- fered by reason of the discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the period from the date of his discharge to January 1, 1939, the date upon which he secured the job he held at the time of the hearing, less his net earnings 16 during such period. Since we have found that the respondent has not discriminated against the remaining complainants, we shall order that the com- plaint be dismissed as to them. 15 Although we ordinarily deduct "net earnings" from an award of back pay to a dis- criminatee , since Bell continued to work for the respondent and was not employed else. where, it is only necessary in this instance to deduct his earnings Cf. footnote 10, infra. 16 By "net earnings" is meant earnings less expenses such as for transportation, room, and board incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of Amer- ica, 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 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 ; Matter of Republic Steel Corpora- tion and Steel Workers Organizing Committee, 9 N L R. B. 219, enf'd as modified as to other issues , Republic Steel Corporation v. National Labor Relations Board, 107 F. (2d) 472 (C. C. A. 3). R. C. MAHON COMPANY 1101 The Trial Examiner recommended that Ignatius Bosek, Theodore Benyk, Walter Loser, John Kovacich, Jesse Thorn, Harry Simen, Zdislew J. Kurmanoski, Louis Chrostowski, Felix Rumienski, Mel- vin Pigula, Lawrence Jamrisko, Hugh McNeilly, Sidney McNa, Joseph Jovanov, Frederick Morse Johnson, and George Harker, be placed upon a preferential list for employment as soon as a need for their services arises. In view of our finding that these employees were discharged, rather than laid off, and were, therefore, no longer employees of the respondent, we shall not order the respondent to place them upon a preferential hiring list. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Steel Workers Organizing Committee and Amalgamated Associ- ation of Iron, Steel and Tin Workers, Local 1279, are labor organiza- tions, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. By discriminating in regard to hire and tenure of employment and terms or conditions of employment of Edward Bell and Charles Hoffman, thereby discouraging membership in a labor organization, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (3) of the Act. 4. The aforesaid unfair labor practices are unfair practices affect- ing commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in unfair labor practices by discharging and refusing to reemploy Nick Klosich, Ignatius Bosek, Frank Szableski, Theodore Benyk, Walter Loser, John Kovacich, Jesse Thorn, Harry Simen, Zdislew J. Kurmanoski, Louis Chros- towski, Felix Rumienski, Melvin Pigula, Lawrence Jamrisko, Hugh McNeilly, Sidney McNa, Joseph Jovanov, Frederick Morse Johnson, and George Harker. 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, 1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD R. C. Mahon Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Steel Workers Organizing Com- mittee and Amalgamated Association of Iron, Steel and Tin Workers, Local 1279, or any other labor organization of its employees, by dis- criminating in regard to hire or tenure of employment or any term or condition of employment ; (b) In any other manner interfering with, restraining, and 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 and protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Edward Bell for any loss of pay he may have suf- fered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount which he would normally have earned as wages during the period the respondent discriminated against him, less his earnings 17 during such period ; (b) Make whole Charles Hoffman for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would normally have earned as wages during the period from the date of his discharge on March 8, 1938, to January 1, 1939, less his net earnings 18 during said period ; deducting, however, from the amount otherwise due him, monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or gov- ernments which supplied the funds for said work-relief projects; (c) Post immediately in conspicuous places at its plants and ware- house, 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 paragraphs 2 (a) and (b) of this Order; and (3) that the respondent's 17 See footnote 15, supra. Is See footnote 16, supra R. C. MAHON COMPANY 1103 employees are free to become or remain members of Steel Workers 'Organizing Committee and Amalgamated Association of Iron, Steel and Tin Workers, Local 1279, and the respondent will not discrimi- nate against any employee because of membership or activity in those organizations. 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 in regard to Nick Klosich, Ignatius Bosek, Frank Szableski, Theodore Benyk, Walter Loser, John Kovacich, Jesse Thorn, Harry Simen, Zdislew J. Kurmanoski, Louis Chro- stowski, Felix Rumienski, Melvin Pigula, Lawrence Jamrisko, Hugh McNeilly, Sidney McNa, Joseph Jovanov, Frederick Morse Johnson, and George Harker.