Owens-Illinois Glass Co.

In the Matter of OwENs-ILLINoIs GLASS COMPANY and FEDERATION OF FLAT GLASS WORKERS OF AMERICA Case No. C-630.-Deoided July 5, 1910 Jurisdiction : glass manufacturing industry Unfair Labor Practices In General Respondent held responsible for anti-union remarks of supervisory em- ployee where said supervisory employee prefaced an anti-union address to employees under his direction with the statement that he was speaking on his own responsibility and not for the respondent. Inteiferencc, Restraint, and Coercion: espionage and surveillance; attempts to bribe employee to act as informer; anti-union statements; interrogation concerning union activities; threats of discrimination as to tenure of em- ployment ; advance announcement of refusal to grant recognition to union ; threatened cessation and removal of operations. Discrinnnateon: discharges, lay-offs, and transfers to temporary work-because of union membership and activities ; charges of discrimination concerning certain employees dismissed Remedial Orders : reinstatement and back pay awarded Mr. Robert H. Kleeb, for the Board. Williams, Eversnuan d Morgan, by Henry A. Middleton, of To- ledo, Ohio, for the respondent. Mr. TV. T. Lewis and Mr. Harry B. Holmes, of Columbus, Ohio, for the Union. . Mr. Ivar Peterson, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon an amended charge filed May 22, 1939, by Federation of Flat Glass Workers of America, herein called the Union, the Na- tional Labor Relations Board, herein called the Board, by Charles T. Douds, Regional Director for the Sixth Region (Pittsburgh, Pennsylvania), issued its amended complaint dated May 27, 1939, against Owens-Illinois Glass Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in 25NLRB.,No 17. 92 OWENS-ILLINOIS GLASS COMPANY 93 unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7), of the National Labor Relations Act, 49 Stat. 449, herein called the Act.' Copies of the amended complaint, accompanied by notice of hearing, were duly served on the respondent and the Union. With respect to the unfair labor practices, the amended complaint, as amended at the hearing,2 alleged in substance that the respondent, at its Fairmont, West Viry`inia, plant: (1) laid off and refused to reemploy 26 named employees, including Anthony Laratta, on or about certain specified dates in July, September, and October, 1937, because of union membership and activity; recalled Anthony Laratta on or about September 20, 1937, to work in another department, :uicl laid him off on or about November 20, 1937, because of his membership and activity in the Union and because he refused to report to supervisory officials of the respondent concerning the activi- ties of fellow employees in behalf of the Union; discharged, and thereafter refused to reemploy, James Shaffer on July 14, 1937, Harry E. Stuttler on August 4, 1937, and P. L. Taylor on September 21, 1937, because of their membership and activity in the Union; demoted Francis Af. Daugherty on or about October 25, 1937, and thereafter refused to reinstate him to his former position, lai^ off the said Daugherty on or about June 6, 1938, for a period of about 7 days, and laid him off on or about September 15, 1938, and there- after refused to reemploy him, because of his union membership and activity; and (2) by the foregoing acts; by permitting, author- izing, instigating, and acquiescing in, at its Fairmont plant and elsewhere, the following acts: (a) demonstration to employees by "various and sundry methods" of its hostility to the Committee for Industrial Organization 3 and/or the Union, (b) demonstration to employees by "various and sundry methods" of its hostility to their concerted activity in the Committee for Industrial Organization and/or the Union, (c) statements tending to discourage union activ- ity and membership, (d) coercing and intimidating persons soliciting union memberships to cease such activity, and threatening to 'close the Fairmont plant if a substantial number of employees at that 1 On February 7, 1939, the Board ordered that the record theretofore made in this cause, with the exception of the charge and amended charge, the pleadings and the motions directed to the pleadings, be set aside and that a new hearing be held. The original complaint had been issued February 5, 1938, and the former hearing was held between February 17 and March 5, 1938. Owens-Illinois Glass Conipanp and Federation of Flat Glass Workers of America, 11 N. L. R. B. 38. 9 The amended complaint was amended at the opening of the heating to allege that Local No. 55 of the Union and that Congress of Industrial Organizations, herein called the C. I. 0, are labor organizations ; to allege that the date of discharge of James Shaffer was July 14, 1937, rather than July 12, 1937 ; and to allege that Roger Anselene was laid off on July 14, 1937, rather than July 13, 1:937 tNow Congress of Industrial Organizations 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant became affiliated with the Union, and (e) spying on union meetings and employees' union activity; and by other acts, inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On June 5, 1939, the respondent filed its answer, admitting the alle- gations concerning the nature and interstate character of its business, denying all material allegations that it had or was engaged in unfair labor practices, and praying that the amended complaint be dismissed. In its answer, and in a separate motion filed therewith, the respondent requested and moved that the amended complaint be made definite with respect to subparagraphs (a) and (b) of paragraph 4 by stating spe- cifically the facts relied upon as "various and sundry methods" or, in the alternative, that said subparagraphs be stricken. Pursuant to the notice, a hearing was held at Fairmont, West Vir- ginia, from June 12 to August 4, 1939, before William R. Ringer, the Trial Examiner duly designated by the Board. The respondent and the Board were represented by counsel. All parties participated in the hearing and were afforded full opportunity to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. At the opening of the hearing the respondent renewed its motion that the amended complaint be made definite, which motion had not been ruled upon by the Regional Director. The Trial Examiner de- ferred ruling thereon, suggesting that counsel for the Board furnish counsel for the respondent with a memorandum of particulars clarify- ing the phrase "various and sundry methods" appearing in subpara- graphs (a) and (b) of paragraph 4 of the amended complaint. On June 15, the fourth day of the hearing, counsel for the Board sub- mitted a memorandums designed to particularize the facts described as "various and sundry." Thereupon the Trial Examiner overruled the motion. The respondent contends that the particulars ,furnished by counsel for'the Board in fact are similar to other allegations of the amended complaint, and that therefore subparagraphs (a) and (b) of paragraph 4 should have been stricken as redundant. The respondent further claims prejudice in that,the Trial Examiner, in overruling the motion, relied upon the statement by counsel for the Board that the incidents would be the same as in the former hearing, whereas in fact new matter was gone into contrary to such representation. We do not believe that the respondent was prejudiced by these circumstances. Assuming that subparagraphs (a) and (b) of paragraph 4 of the amended complaint, as amplified by the memorandum of particulars, are repetitious and redundant, then they add nothing and constitute mere surplusage. With respect to the second point, the Trial Exam- iner stated that, if new matter were brought in, a reasonable time would be allowed the respondent to prepare and present its defense OWENS-ILLINOIS GLASS COMPANY 95 to such new matter. No request for such extension of time was made by the respondent. The ruling of the Trial Examiner is hereby affirmed. The respondent filed, at the opening of the hearing, an application for subpoena daces tee um calling for the production by the Union of all membership application cards signed by complainants and by other employees between May 1 and October 27, 1937, all records of union action upon said applications, and all records containing any reference to or action upon the complaints filed with the Board by any of the complainants. The Trial Examiner took the application under con- sideration. At the opening of the hearing on June 16 the Trial Examiner denied the application on the ground that the material requested was immaterial at that stage of the pro- ceedings, but stated that the application could be renewed at any time. On June 19 the application was renewed. Counsel for the Board then agreed to make available to the respondent the membership application cards of complainants and of those employees named by complainants as having been induced by them to sign mem- bership applications. Thereafter the respondent's counsel was per- mitted to examine all application cards bearing a date prior to January 1, 1938, and the 1937 application cards were introduced in evidence by counsel for the Board. At the close of the Board's case, cross-examina- tion of the secretary of Local No. 55 developed that the union records did not contain the other information sought by the application for subpoena. The respondent contends that, since all the information requested in the application for subpoena was ultimately ruled competent, the application should have been granted and the information furnished at the opening of the hearing, and that the respondent was thereby prejudiced in its cross-examination of many of the complainants and in the preparation of its defense. We are of the opinion that the respondent's contention is without merit. The application 'cards of complainants were supplied on June 19, the beginning of the second week of the hearing, and the cards of employees named by com- plainants as having been signed up by them were furnished on and after June 21. Moreover, all 1937 application cards were thereafter made available to the respondent. Complainants who testified prior to June 19 could have been recalled for cross-examination; as to com- plainants who testified subsequently, the respondent had ample oppor- tunity to cross-examine them with respect to their membership ap- plication cards and the cards of employees claimed to have been signed up by them. We are of the opinion that the information sought re- lating to union action on applications for membership and complaints filed by complainants was irrelevant to the issues. Assuming it -vas 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relevant, no prejudice resulted from the fact that the respondent was apprised of the non-existence of the information at the close of the Board's case rather than at the beginning of the hearing .4 The ruling of the Trial Examiner is hereby affirmed. At the close of the Board's case, the respondent moved to dismiss the amended complaint and specific allegations thereof on the ground of insufficiency of the evidence. The motion was denied. At the conclusion of the hearing counsel for the Board and counsel for the respondent separately moved to conform the pleadings to the proof. These motions were granted by the Trial Examiner. During the course of the hearing, the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby Affirmed. On September 19, 1939, the respondent submitted a brief in support of its contentions to -the Trial Examiner. On December 22, 1939, the Trial Examiner filed his Intermediate Report, dated December 18, 1939, copies of which were duly served upon the respondent and the Union. He found that the respondent had engaged 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 its unfair labor practices, reinstate 7 employees 15 with back pay, make whole 11 other employees 6 who had been discriminatorily discharged or laid off but had since been reinstated, and post appropriate notices in its plant. He further recommended that'the amended complaint be dismissed as to 12 persons' allegedly discriminated against. On February 12, 1940, the respondent filed exceptions to the Inter- mediate Report. On February 10, 1940, the Union filed exceptions to the Trial Examiner's findings and recommendations of dismissal of the allegations respecting 7 of the 12 persons whom the Trial Examiner found had not been discriminated against. On February 26, 1940, the Union filed a brief in support of its exceptions. Pursuant to notice, a hearing was held before the Board in Washington, D. C., on May 14, 1940, for the purpose of oral argument. The respondent and the Union 'It appears that counsel agreed , on June 21, to work out the matter concerning the information sought from union records . On July 6, the first clay of healing alter June 23, counsel for the Board stated that he believed he was supplying the respondent "in sub- stance the information which was requested," and counsel for the respondent stated, "I have nothing to suggest at this time " 5 Roger Anselene, Lena Anselene, Edith Gallion , Nick Balseto, William Booth, Lucretia Gwynn, and Francis M. Daugherty 6 James Shaffer, Floyd Kerns, Rufus Neel, Louis Ribel Flossie Stemple, June Tennant, Roy Davis, L W. Henderson, L G. Lewis, Joseph Schnell, and Anthony Laratta. 'Joseph Church , Frank Church Eileen Brown . Pauline Conrad . Anna Sheets , Nellie Van Gilder, Edward Martin , Wilbur Deskins , Sam Potesta , William Linn , Harry E Stuttlcr, and P L. Taylor. OWENS-ILLINOIS GLASS COMPANY 97 were represented by counsel, and participated in the argument. The Board has considered the exceptions to the Intermediate Report and, in so far as they 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. THE BUSINESS OF THE RESPONDENT The respondent , an Ohio corporation with its general offices in To- ledo, Ohio, was incorporated in 1907 as The Owens Bottle Maclaine Corporation . Its name was changed in 1919 to The Ovens Bottle Com- pany and in 1929 to Owens-Illinois Glass Company, the present name. The respondent has six wholly owned subsidiaries , as follows : Madison Warehouse Company, a Massachusetts corporation engaged in ware- housing and selling glass containers and other related products; Owens-Illinois Glass Company of Oklahoma, an Oklahoma corpora- tion not operatnig' at the time of the hearing ; Owens-Illinois Pacific Coast Company , a Delaware corporation engaged in the manufacture and sale of glass containers on the Pacific Coast, with plants at Los Angeles and Oakland , California ; Owens-Illinois Distributors, Inc., an Ohio corporation engaged in warehousing and selling certain types of bottles, caps , and closures ; Libbey Glass Company, an Ohio corpora- tion engaged in manufacturing thin blown tumblers and stemware at its plant in Toledo, Ohio; and Owens -Illinois Can Company, a Dela- ware corporation with plants at McKees Rocks, Pennsylvania , Balti- more, Maryland , and Clearing, Illinois , engaged in the manufacture and sale of metal containers and other metal products. The respondent has plants at Huntington , Fan•mont , and Charleston , West Virginia; Alton , Chicago Heights, and Streator, Illinois; Clarion, Pennsylvania; Bridgeton, New JerseY ; Columbus, Ohio; and Gas City, Terre Haute, and Muncie, Indiana. The respondent and its wholly owned subsidiaries manufacture and sell bottles, jars, di inking glasses, glass containers , wood and corru- gated fiber boxes and reshipping cases, cartons, bottle caps, glass blocks and insulators, and metal containers . The plant at Fairmont, West Virginia which is here involved , manufactures glass containers, prin- cipally beverage bottles , such as ginger ale, beer, and soda bottles. In addition to beverage bottles , food containers , such as salt and pepper shakers, pantry jars , and containers for catsup, mustard, mayonnaise,, and the like, are manufactured at the Fairmont plant. The principal raw materials used in the manufacture of glass con- tainers at the Fairmont plant are sand , soda ash, and raw dolomite. In' 1938 the raw materials thus used exceeded 100,000 ,000 pounds and cost 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD more than $300,000. Approximately 40 per cent in weight and 75 per cent in cost of such raw materials were obtained from States other than the State of West Virginia. All fuel used at the Fairmont plant in 1938, costing more than $150,000, was produced in West Virginia.s The total sale price of glass containers manufactured at the Fairmont plant exceeded $500,000 in 1938. Of this amount, more than 80 per cent was shipped to points in States other than the State of West Vir- ginia. As of June 30, 1939, the respondent employed 1142 employees at its Fairmont plant. II. THE ORuANIZATION INVOLVLD Federation of Flat Glass Workers of America is a labor organization affiliated with the Congress of Industrial Organizations , admitting to membership persons employed in the glass industry. Local No. 55 of the Union admits' to membership employees of the respondent em- ployed at its Fairmont plant. III. THE UNFAIR LABOR PRACTICES A. Background of the unfair labor pi aetices Except for two groups of employees, the respondent's Fairmont plant was unorganized prior to the summer of 1937. Operators of the bottle machines are within the jurisdiction of the Glass Bottle Blow- ers Association, an affiliate of the American Federation of Labor; and employees in the central mold shop and the mold repair depart= ment have been organized for many years by the American Flint Glass Workers' Union, also affiliated with the American Federation of Labor. On July 6, 1937, an organization it meeting of employees of the re- spondent was held in Fairmont. Temporary officers of a local to be affiliated with the C. I. O. Were elected. On July 31 a charter was issued to Local No. 55 by the Union " Immediately after the organi- zational meeting, the Union began an active membership campaign among employees of the respondent. Weekly meetings were held, and application cards were distributed and memberships solicited at the plant as well as at employees"homes. By October 1937 nearly 400 of the respondent's employees had signed union application cards. 'The respondent owns a natural gas field in the Fairmont, West Vu guua, dist, ict, which supplies fuel to the Fairmont plant. It also owns, jointly with Libbey-Owens-Ford Glass Company gas properties in West Virginia, supplying fuel to the Charleston, West Virginia, plants of both companies. °The Union was then technically affiliated with the American Fedeiation of Labor The C. I. 0 issued a charter to the Union on August 15 1937 The American F'edetation of Labor officially revoked the Union's charter on February 4, 1938 The Union. since us affiliation with the C. I 0 , has replaced the charter originally issued to Local No 55 so as to show that Local No 55 is affiliated with the C 1 0 OWENS-ILLINOIS CLASS COMPANY 99 The respondent's business at the Fairmont plant is subject to sea- sonal fluctuations. Normally there is an increase in employment in the early spring, followed by a reduction in the summer and fall. Between 1930 and the summer of 1937, business at the Fairmont plant increased in general, and the number of persons employed reached a high of 1537 in March 1937. In September 1937 the glass-container industry suffered a serious depression. The record shows that the FairmontJplant, as well as other of the respondent's plants, was affected by the decline in busi- ness. At the Fairmont plant, production vent from a 6-furnace basis in the summer of 1937. to 5 in September, and to 4 in October; in July 1938 only 3 furnaces were operating, and in September of that year only two. From November 1938 until the time of the hearing, 4 furnaces operated most of the time. Employment figures likewise reflect the decline in business. As of March 1937, 1537 persons were employed; in September the number was 1461; during the month of October nearly 300 employees were laid off; and except for small increases in the spring of 1938, employment continued to decrease until a low of 737 was reached in September 1938. Thereafter, employ- ment increased' gra dually to 1142 in June 1939. The respondent follows no seniority policy, in the strict sense of the term, in selecting employees for lay-off, discharge, or rehire. The criteria in effecting reductions and in rehiring are efficiency and ver- satility; length of service is an element regarded as ordinarily indi- cating efficiency, and is given some consideration, along with many other factors. B. Inter°fcre'nce, estrainzt, and coercion As noted above, the Union held its first open organizational meet- ing on July 6, 1937. The meeting and the names of the respondent's employees who were elected to temporary offices were publicized in a Fairmont newspapet the following day. Shortly thereafter, various supervisory employees of the respondent began talking to employees individually and collectively about the Union and organizing activ- ities, advising them not to join, that unions were undesirable, and that -the respondent would never recognize the Union, and by these and other means sought to discourage membership in the Union. Walter Brand, superintendent of the packing department, was particularly active in his opposition to the Union . A few days after the July 6 meeting, Brand approached . Harry Stuttler, an employee, and spoke to him about the Union . Brand asked if Stuttler had attended the meeting and had signed an application card. Stuttler replied in the affirmative to both questions . Thereupon Brand stated, "Why do you wish to tie yourself up with bunch of Dagoes and 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reds . . . when your company will do as much and more than them unions. They mean to take your money." As Brand left Stuttler he warned, "Well, don't do anything you may be sorry of later on." The Sunday following the July 6 meeting Brand called Joseph Schnell, an employee, into his office, showed him pictures of strikes, told of people being killed in strikes conducted by C. I. O. unions. stated that strikes forced people to go on relief and to subsist on "baked beans and sow belly," and asked if Schnell would like to be in that situation. Brand said there was no need for an outside organ- ization in the plant, and averred that the respondent was doing all it could to help the employees. At the conclusion of the interview Brand said Schnell was free to join or not to join the Union, but advised him not to do anything for which he would be sorry later on. On July 13, the day after a union meeting, Brand inquired how_ Schnell had enjoyed the meeting. Scluiiell replied that the meeting had been well attended and that he had enjoyed it. Brand then alluded to a statement which had been reported in the press as having been made by one Frank Miley, an official of the United Mine Work- ers who had addressed the sleeting, to the effect that the girls employed in the respondent's plant were underfed. Brand told Schnell that he must believe such statements or he would not attend union meetings. About August 5 Brand had Lena Anselene, an employee in his de- partment who was then serving as a member of the Union's policy and organizing committees, stay after a departmental meeting. According to Anselene, Brand said that he understood she had been elected to a union committee,1o criticized her for soliciting during working hours, and said that thenceforth she was on probation and would be "out of a job sooner or later." it Several employees were present on this occa- sion. Dorothy Vincent, one of those present, testified, as a witness for the respondent, that Brand asked all of them not to talk while work- ing,'that he told Anselene that he had heai d she was soliciting at the lehrs,l2 and cautioned her not to do that. Vincent did not remember anything else that was said by Brand on this occasion. We find that Brand spoke to Anselene as testified by her. About August 20, the day after Nick Balseto, an employee in the packing department, had been elected financial secretary of the Union, Brand told Balseto, with reference to his union activities and election 10 The preceding day Anselene's for-man Wallace Snlou,e had 1nqun ed why she had not sought his advice before being elected to the policy committee. 11 Shortly after this incident. Anselene and others in the packing depaitulent were tians- ferred and thereafter laid off for discriminatory reasons, which ale discussed in Section III C, infra 12 The lehrs are the annealing ovens into which the bottles pass after being formed by the bottle machines. The lehrs are about 75 to 100 feet long As the bottles pass through slowly on a conveyor, they are first subjected to very high temperature, and then cooled to room temperature before emerging from the lehr to be inspected and packed OWENS-ILLINOIS GLASS COMPANY 101 to office, that he, Balseto, would be sorry. Brand showed him pictures and articles about strikes, and said that people involved in the coal- mine strikes were starving. He recalled that Balseto's house was not paid for and remarked in that connection, "If you lose your job, you lose your house." The testimony relating to the activities of Brand as set out above was not denied. Brand did not testify. We find that he made the statements attributed to him. The respondent contends that the state- ments, if made, are not binding upon it. We find no merit in this contention. Brand is a superintendent iu authority over these em- ployees. We find that the respondent is responsible for the above statements of Brand, and that thereby the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Brand's activities were not confined to talking to employees. About July 19 Branch discussed the organizing activities with his shift fore- men, Wallace Smouse, Charles Parsons, William Page, and Raymond Wolfe. He told them not to "go too fast at first," but to check on union members and report to him all the information they could get; that there was some "cleaning up" to be done and they all knew what to do. In July Brand called Smouse into his office to check Smouse's shift for union members. They went over a list of names of employees; Smouse indicated whether they were members, not members, or doubtful. When the check Was completed, Brand exclaimed, "Jesus Christ, 23 members." Brand kept a record of employees who were members of the Union and on several occasions, after union meetings, told Smouse the names of employees who had attended. Brand instructed Smouse whenever lie saw two employees talking to go between them, find out what they were saying, and report to him. At Brand's direction, so Snroilse testified, Paul Merrifield, who was a boss packer 13 in 1937, attended union meetings for the purpose of learning the names of employees who were present and reporting them to Brand. Amer Hall, a boss packer in 1937, testified that he was instructed by Brand to find .out all he could about the Union from Gladys Wilson, the recording secretary. Hall approached Wilson with the foregoing objective in mind but Wilson told him to go to union meetings if he wished to get information about the Union. Hall so reported to Brand. In August Brand discussed with Hall the union activities of Rex Henderson and Howard Glasscock, employees in the packing department, and advised Hall to watch them because they were "hotter than hell for the C. I. 0." 13 A boss packer was subordinate to the foreman and was in charge of 6 of the 12 lehrs Smouse testified that a boss packer had authority to discipline employees , and that when he was foreman he had delegated the power of discharge to the boss packers on his shift Boss packers were paid 75 cents an hour , whereas the male lehr attendants received 66 cents We find that boss packers were supervisory employees 283036-42-vol. 25-8 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The testimony of Sinouse and Hall, in the particulars set out above, was not contradicted. Brand; Merrifield, laid the shift foremen, Page, Parsons, and Wolfe, did not testify. The respondent contends, how- ever, that Smouse's testimony is not entitled to credence. Smouse had been a shift foreman in the packing department from 1917 to June 1938. At the first hearing herein Smouse testified as a witness for the respondent. Thereafter he was demoted to the position of in- spector on a single Lehr, a job which he held at the time of the second hearing when he testified as a witness for the Board. Smouse declared that lie had testified falsely in some respects at the former hearing, but insisted that at the second hearing he was telling the truth. Most of his testimony relates to statements and conduct of Superintendent Brand. A number of exhibits supporting Smouse's testimony bear the signature or initials of Brand. No attempt was made to impeach the authenticity of these exhibits. As stated above, Brand and Smouse's co-foremen did not testify.' 1 Much of Smouse's testimony is corrob- orated by other witnesses. The Trial Examiner, who heard the wit- nesses and observed their demeanor, stated that the testimony of a '14witness who admits that he falsely testified at a former hearing . . . should be carefully examined and analyzed," but concluded that "Smouse's testimony is substantially true." We agree with the Trial Examiner and credit the testimony of Smouse. We find that the respondent, by the above-described acts of Brand, Smouse, and other supervisory employees in the packing department in checking on the union membersiop land activity of its employees, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Ray Burchett, superintendent of the shipping and storing depart- ment, also sought to dissuade the employees from engaging in union activities. About July 8 Burchett spoke at a shift meeting in his department. He said that he did not know how many had signed union cards but supposed that most of them had done so; he minimized the advantages of collective action through a union by asking what the Union could give the employees that the respondent could not,' by saying that all the Union wanted was clues, and by assuring them that if they desired more money they need not go to the Union to get it. Burchett added that there were hundreds of ways to get rid of men and that he pitied those who had signed up with the Union. Although Burchett was called as a witness by the respondent, he did not deny the remarks attributed to hiln above, and we find that lie made them. A few days after the shift meeting, Burchett had a discussion with Francis Daugherty, an employee in his department, in the presence of 14 The respondent seeks to excuse its failure to call Brand and the other foremen on the ground that to have done so would have been uunous to morale in the plant Assuming that to be so, we are not thereby aaauanted in di'regaidul_ Smouso's testimony OWENS-ILLINOIS GLASS COMPANY 103 Arley Si ick, a foreman. Burchett said that he had talked to several of the employees and none of them knew what lie, was getting into by signing up with the Union. 1Theii Daugherty said that he knew what he was doing when he joined the Union, Burcliett replied that Daugh- erty was "the first one that ever told me" so. Burchett inquired why the men did not form their own union, stated that the respondent would Dever recognize a C. I. O. union, and that a C. I. O. union had been voted down in 6 or 7 plants. Neither Burchett-nor Swick contradicted Daugherty's account of this discussion. We find that Burchett made the statements and thereby sought to discourage membership and activity in the Union. At a departmental meeting on July 13, Burchett made a speech of similar tenor Several employees testified concerning it, and Burch- ett admitted having made a number of the statements attributed to him. According to the employees, Burchett spoke as follows: that the men were faced with a serious proposition, that he had talked to several and only Daugherty knew why he had signed up with the C. I. 0., that two men present had been forced to sign C. I. O. cards," that while he never asked anyone if they had signed a union card he had ways of finding out, and that they should consider the matter very carefully before joining. He then said that six or seven men were being laid off the following day but added that `.`of course it is on account of short work." Several employees testified that in connection with the announcement of impending lay-offs, Burchett said that the mold shop was in need of some men and four or five employees could be transferred to the mold shop if it were not for the objection of the union in the mold shop.l° Burchett testified that during July and August his department was in a "turmoil" and efficiency had dropped considerably. At the meeting he talked to the employees and said that the organizing going on was a serious question which they should consider carefully. He admitted that he made the remark about Daugherty being the only one who knew what he was doing, but explained that he made that statement "on account of these fellows coming in and asking me what to do" about signing up with-the Union. He testified that he always told the men who inquired about organizing that "they would just have to use their own judgment . . . investigate the whole thing and find out before they signed any cards or any names to anything.?' Burchett admitted saying that 6 or 7 men were to be laid off the following day. He testified that he made the announcement "entirely on conditions;'manufacturing conditions of glass bottles,"' and that "James Williams, one of those referred to, then spoke up and said that while he would not say he had been forced to sign , he was soi ry that he had done so "'Apparently Burchett was referring to the Ameiican Flint Glas, Workeis' Union, which had been organized in the mold shop for many years 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was his custom to make such announcements at departmental meet- ings." Burchett did not dispute the employees' version of the bal- ance of his remarks as set out above. We find that the purpose and effect of Burchett's speech were to raise doubts in the minds of the employees about the advisability of joining the Union, and to suggest to them that by joining they jeop- ardized their jobs. While impending lay-offs were undoubtedly a matter ordinarily mentioned at departmental meetings, and although the lay-offs were necessitated by business conditions, we are satisfied that Burchett linked the announcement with his preceding remarks in such fashion as to leave the impression that union membership and activity would be considered in selecting employees for lay-off. That Burchett's speech was not without its intended effect is revealed in the conduct of Homer Haney. Haney, a tractor driver in Burchett's department, had been elected temporary treasurer of the Union at the July 6 meeting. On the following day Burchett jokingly asked Haney when he, Burchett, could pay his dues. On July 14, the day after Burchett's speech, Haney came to Burchett and said that he wanted to drop out of the Union. Daugherty was advised of Haney's action by Burchett on July 15. Daugherty's account of the incident, as related to him by Burchett, was that when Haney said he was through with the C. I. O. Burchett told Haney,that matters had gone so far that Haney should tell David Denelsbeck, the plant manager, of his decision. Haney, a witness for the respondent, testified that he decided to inform Burchett because "I didn't like the Union" and because "at that time he [Burchett] was my boss, and I felt it my place to see him before dropping out." Haney admitted that Burchett told him to com- municate with Denelsbeck, and that Burchett accompanied him to Denelsbeck's office. On direct examination Haney testified that when he told Denelsbeck that he was dropping out of the Union, Denels- beck said, "Use your own judgment about it." After some vacilla- tion on cross-examination, Haney admitted that when he had related the matter to Daugherty shortly after the incident occurred, he had told Daugherty that Denelsbeck had said that he, Haney, would lose his job if he did not get out of the Union. Haney then testified that he told this to Daugherty "just for fun" and "to feed him a line." Neither Burchett nor Denelsbeck testified with respect to this mat- ter. Haney stopped going to union meetings, and was replaced as treasurer by Daugherty when the latter related the circumstances above set forth at the following union meeting on July 19. 1' It appears that the seasonal change from beverage bottles to food containers made lay- offs in the shipping and storing department necessary in July See the discussion of the eudence relating thereto in connection with the tieatment of the lay -off of Roger Anselene, Section III C, infra OWENS-ILLINOIS GLASS COMPANY 105 It is plain, we think, that Haney was impelled to cease his union activity by the fear of losing his employment, a fear prompted by Burchett's remarks. Haney's explanation that he resigned because lie "didn't like the Union" is not convincing. He had been elected tem- porary treasurer at the first organizational meeting without objection on his part, so far as the record shows. Nor did he, explain why lie did not like the Union, except to say that he told Denelsbeck that the Union "wasn't what we wanted, in the first place." 18 We find that the respondent, by the foregoing statements and ac- tivities of Superintendent Burchett, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. During the latter part of July and in August, Jay Garlow, foreman in the shipping dep rtnient. was acting superintendent in the absence of Burchett. On August 5 Garlow attended a meeting of depart- mental heads Costs during the first six months of 1937 were dis- cussed and Denelsbeck, the plant manager, pointed out that the costs in the shipping department, as compared to other plants, were out of line and stated that something had to be done about it. The fol- lowing day Garlow called Daugherty into the office. According to Daugherty, Garlow- said that Denelsbeck had stated that something was wrong in the shipping department because about 20 employees out of about 30 at the last union meeting were from that department, and suggested that the employees should tell him their troubles. Garlow told Daugherty, "this company will never recognize the C. I. 0. and all of you will lose your jobs"; he said that there were "hun- dreds of ways" of getting rid of a man, that it night take a year to do so, and that "it won't be marked up in the record in the personnel department file for joining the C. I. 0., but it will be the same thing." The same clay that Garlow talked to Daugherty privately, he spoke to the whole shift about the condition of the department. According to the employees who testified about the matter, Garlow referred to the large percentage of employees at union meetings being from the shipping department, suggested that they should inform Denelsbeck that they were "washed up" with the C. I. 0., and stated that he would transfer Daugherty to the mold shop, where there was a union, in order to satisfy Daugherty's desire for a union.19 Garlow did not refute Daugherty's testimony about the conversa- tion between the two of them preceding his remarks to the shift, ex- 19 Flaney first said that by "we" he meant the respondent but then stated that he was referring to the employees ' The following Monday Daugherty was called in by Denelsbeck IN ho, in the presence of Garlow and Raymond Casseday , the personnel director , told Daugherty that he had the wrong impression of the respondent 's policy toward the Union , that the respondent had no objection "against any man that joins an organization of his own choosing ," and that Daugherty would not be transferred from the shipping department. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cept to say that when he broached the subject of reducing costs, Daugh- erty "flew off the handle" and "accused me of landing on him because he belonged to the Union"; Garlow testified that he told Daugherty, "if you want to belong to the Union, that is your own business, but if you belong to a union, why ire still have those bottles here as we'have in th6 past." Garlow testified that the department was in a furor, that the men were huddling together, with a resultant decrease in efficiency, and that he spoke about that condition. He testified that he referred to Daugherty's desire for a union,, which was one way of keeping em- ployees satisfied, and that he said he would recommend Daugherty for a transfer in order to satisfy that desire. ' He did not deny saying that too many employees were attending union meetings and that they should drop the C. I. 0., although he testified that he did say that the employees had the privilege of joining any organization they saw fit to join. Garlow's alleged statement, that the employees were at liberty to join any organization they desired, is not consistent with his announced intention of transferring Daugherty to the mold shop in order to ,.satisfy Daugherty's desire for a union. The proposal to transfer an outstanding union advocate'20 under the circumstances, clearly indi- cated to the employees that Garlow did not want the department to become organized. Garlow's conversation with Daugherty and his statements to the shift, as revealed by unrefuted testimony, which we credit, establish that he openly opposed the Union, counseled the em- ployees to drop the Union, and suggested that, continued affiliation with or advocacy of the Union would result in loss of jobs or transfers. We find that by the statements and acts of Garlow described above, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. About the middle of July 1. W. Reiser, head of the maintenance de- partment, addressed the employees of that department. He said that the C. I. 0. was a bunch of reds and radicals working for their own good, that employees who had joined had made a big mistake and he hoped no more would sign up, and that before the respondent would recognize the Union it would close the plant and move elsewhere. Reiser did not testify. We find that he made the foregoing statements attributed to him by William Booth and Sam Potesta, employees in the maintenance department. , Although Booth testified that Reiser prefaced his remarks with the statement that he was speaking on his own responsibility and not for the respondent, we find that the re- spondent is not thereby relieved of responsibility for his statements; 20 Carlow testified that in his conversation with Daugherty, the latter "went so far as to - hit his fist down on the table and told me, 'This department will never amount to a damn until we have a union "' OWENS-ILLINOIS GLASS COMPANY 107 we find that by the foregoing statements of Reiser, the respondent in- terfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. The respondent's interference, restraint, and coercion did not stop with the above-mentioned conduct of its supervisory officials. Person- nel Director Casseclay sought to induce James Shaffer to engage in espionage, and Superintendent Brand utilized Anthony Laratta as a reporter on the union activities of fellow employees. Shaffer, all employee, was discriminatorily discharged in June 1937.1 In August he saw Casseday in an effort to get reinstated. Cas- seclay offered to reinstate Shaffer if Shaffer would attend union meet- ings, and keep Casseday informed thereon. Casseday suggested that Shaffer find out the number of application cards in the possession of Armando Folio, vice president of the West Virginia Industrial Coun- cil who assisted in organizing the Union, and report back. Shaffer re- fused to engage in such activity. During the course of the first hear- ing Casseclay again approached Shaffer, told him that it would be futile for him to testify, and stated that if Shaffer did not testify "my propo- sition still holds about your job." Casseday testified as a witness for the respondent on several matters but was not questioned about the above incidents. We find that the respondent, by the afore-mentioned conduct of its personnel director, attempted to induce Shaffer to engage in espionage activities. The respondent contends that it is not responsible for Casseday's acts and statements, inasmuch as he had no supervisory authority over any employees other than those in his department. We find no merit in this contention. It is clear that Casseday, as personnel director, was in a position of authority and responsibility with re- spect to the employees throughout the plant, since the record estab- lishes that prospective lay-offs and the rehire of employees laid off were discussed and cleared with him. This was known to the em- ployees, who could not have failed to regard Casseday as an iinlpor- tant official of the respondent. We find that by the acts and state- ments of Personnel Director Casseday described above, the respond- ent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Laratta was discriminatorily laid off September 17, 1937.22 Two or three days thereafter he was sent for by the employment office and told to report to Superintendent Brand. According to Laratta, they had a friendly talk, during the course of which Brand advised him that if he had any grievance he should see "the people that was 21 The evidence upon which this conclusion is based is set forth in Section III C, infra. 22 The evidence upon which we reach this conclusion is set forth - in Section 1111 C, snfra. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interested in me." 23 In marked contrast to his attitude toward Laratta immediately before the lay-off,24 Brand offered him a job laying brick in the maintenance department, a department over which Brand had no jurisdiction so far as the record reveals. La- ratta returned to work on September 20 and worked as a bricklayer for two months. During this period Brand came to see -'him after each union meeting. Laratta testified as follows in this connection: Q. What did he [Brand] come over to see you about? A. Well, he just come over to see me. I was going to meet- ings, union meetings, and I don't know whether I got the right idea or not, but I think .. . By Mr. ICLEEB : Q. I want to know what Brand said to you when he came over to see you . . . * * * A. Well, I don't think there is any union or meetings or organization that has secrets . . . and I didn't have any in that union either. So I talked union with him and told him what- ever was going on, and I told him a lot of things I didn't like over there and still don't like. And with some he just nodded his head and never said nothing about them, but he just listened and I talked. . . . Well, he would say, "How are you getting along, and what are they doing over there?" And, of course, I would just start out with my union activities and talk about them. As stated above, Brand did not testify. We'believe that Brand uti- lized Laratta as a convenient source of information about the Union and its activities. We need not decide whether Laratta agreed to act as an informer in return for a job. However, we think it plain that Brand rehired Laratta with the definite expectation of using him in that capacity; Brand's sudden reversal in attitude toward and treat- ment of Laratta is otherwise inexplicable. We find that the respondent, by the actions of Brand in using La- ratta as an informer on the activities of the Union, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 23 Brand obviously meant that Laratta should present his grievances directly to the re- spondent and not through the Union . About September 18 a delegation of union members, who had been laid off in Brand 's department, including Laratta, had gone to the employ- ment office and had there called upon Brand to explain why they had been laid off. Un- doubtedly Brand had this incident in mind when he spoke to Laratta as stated in the text. "As we find below , a week or 10 days before the lay-off Brand told Amer Hall, a boss packer, when Hall said Laratta anticipated having brick work in the maintenance depart- ment when the furnace on which he was working went down . "That son-of-a-bitch will never lay any more brick for this company as long as I am here " OWENS-ILLINOIS GLASS COMPANY 109, C. Discrimination as to hbe and tenure of employment 1. Lay-offs in packing department The amended complaint alleged that .11 employees in the packing department were discriminatorily laid off on September 17, 1937. The Trial, Exam iner,found that the respondent had discriminated against all of these employees except Eileen Brown. The Union did not ex- cept to the Trial Examiner's findings and recommendation respectinj, Brown. We have reviewed the evidence relating to Brown and agree with the findings of the Trial Examiner, and we will, accordingly, dismiss the amended complaint in so far as it alleges that the respond- ent discriminated against Eileen Brown. There remain for consider- ation the allegations as to 10 employees in this department : Lean An- selene, Edith Gallion, Flossie Stemple , June Tennant, Nick Balseto, Lester Henderson , Anthony Laratta, L. G. Lewis, Joseph Schnell, and Roy Davis. Prior to the lay-offs, the respondent was operating 6 furnaces, each of which served 2 annealing lehrs. Employees in the packing depart- ment work at the end of the lehrs selecting and packing the ware after it has passed through the lehrs. Ordinarily, 3 or 4 women and 1 man work at each lehr. The women, who are called selectors, inspect the ware for defects and pack the bottles in cartons or place them on racks. The man stationed at the lehr, known as the lehr attendant, does some selecting and helps keep the inspecting table clear and orderly. Before the lay-offs; about 184 women and 80 men were employed in the pack- ing department. On September 17 furnace #6, which served lehrs #11 and #12, shut down because of the dropping off of orders for flint ware occasioned by the failure of the tomato crop and the conse- quent loss of catsup -bottle business. As a result of the shut-down, 24 women and 8 men were laid off. Generally speaking, the selectors in the packing department do not work steadily on a particular lehr, but are shifted to different lehrs every few days. The lehr attendants, however, usually work on one lehr regularly. All of the complainants from the packing department, except Davis and Gallion, were transferred to lehrs 11 and 12 during August and continued to be assigned to those lehrs until the furnace shut down.',-, In August, about a month before the September lay-offs, Superin- tendent Brand gave instructions to transfer certain employees to lehrs 11 and 12. Smouse, then a foreman under Brand, testified that he was given a list of employees to transfer on his shift by Foreman Wolfe, who stated that Brand had given orders for the transfer. Smouse sa Brown , who we find was not discrimi nated ag'rnnst, was «orkmg on lehi #4- when laid off 110 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD testified that those transferred were known to be union members, and that the transfer was made to facilitate their lay-off because furnace #6 was expected to shut down. The respondent contends that Smouse's testimony on this point, which is not directly denied, is in- credible for the reason that in August no one knew that #6 furnace would shut down in September. The evidence, however, convinces us that, while it was not definitely known in August when the furnace would cease operation, it was expected that furnace #6 would close in the near future. As stated above, #6 furnace closed in September because of an unexpected slump in demand for flint ware. At that time three fur- naces, numbers 3, 4, and 6, were rubning flint glass. Of the three, #C, had been in operation the longest and was in the poorest state of repair. Thus it is plain that in August. when the transfers were made, it was expected that, in the normal course of operations, fur- nace #6 would soon go clown for repairs. The lack of demand for flint ware, which became acute in September, merely accelerat ell some- what the shutting down of #6 furnace. With the falling off of .demand, #6 furnace was the logical one, of the three flint furnaces, to be shift clown.'° Smohse testified that, on his shift, lie transferred Anselene, Laratta, and Schnell to ]ehrs 11 and 12 pursuant to the arrangement to facili- tate their lay-off because of union membership and activity. Stem- ple, Tennant, Balseto, Henderson, and Lewis were transferred by other shift foremen, pursuant to orders from Brand.'' We credit, Smouse's testimony, and find that the above-named employees on 11is shift were transferred to lehrs 11 and 12 because of their union niem- bership and activity and with the purpose of laying them off when #6 furnace shut down.'s In view of the fact that Brand discussed the union membership and activities of employees with all his fore- men, told them to keep a check on such matters, and stated that there was some cleaning up to be clone, and in view of the unexplained transfer of other union members to' lehrs 11 and 12 at about the same time, we find that the procedure followed on Smouse's shift was fol- lowed on the other shifts in the packing department. We find, there- fore, that the 8 complainants who were transferred to lehrs 11 and 12 The backlog of orders for flint ware began diminishing early in August , and about the middle of August cancelations on flint ware began to come in. In fact, it appeals that cancellations were received during the second week in August , since the August 3 estimate of 8% weeks of production in flint wale had been reduced to 5% weeks by August 11 n When Balseto , who had worked on lehr #2 for 5 or 6 years , was transferred to lebr #12 by Foreman Page, the latter said he did not know the reason for the transfer but stated, "Mr Brand knows about this . He makes out the change , and we will ha%e to carry them out." "Brand discussed with Smouse whether Triplett , president of the Union should he laid off. Triplett was not laid off in September 1937 On one occasion , Brand told Smouse, with reference to the lay-off of union members , "If anybody says anything , we can say, 'Hell , we got the president here'' OVENS-ILLINOIS GLASS COMPANY 111 were transferred for the purpose of facilitating their lay-off, because of union membership and activity, when furnace #6 closed clown. On about September 12, according to Sinouse, Brand came to his -home to discuss the inipendnig lay-ofls.2a Brand gave Smouse a list -and-said, "There is the list. If you are not man enough to get rid of them, you are not the man for'tlie job."- The list included Auselene, Gallion, Laratta, and Schnell, all employees on Smouse's shift.' Brand instructed Smouse to prepare reasons for the lay-off of the above-named employees, other than that they were members of and active ni the Union. On September 13 Smouse submitted a list of reasons, which Brand rejected on the ground that they were inade- quate; he then told Smouse to prepare other more plausible reasons. Smouse did so, with Brand's assistance. The reasons prepared by Smouse and Brand, in the form- of recolu- inendations from Sinouse to Brand, are dated September 16 and Smouse testified that they were prepared on that day. Brand then gave Smouse written instructions, dated September 16, to lay off the 8 employees who had been recommended by Smouse "to be furlowed due to `G' furnace going clown." 3' In February 1938, during the first hear- ing, Brand caused the letter of instructions to be rewritten by inserting the word-"temporarily" before the word "furlowed" in each of three places in the memorandum. Braiid gave Smouse the original of the revised letter and told him to destroy the first. Both of the letters are in evidence; the first bears Brand's initials and the second is signed by him. Although no evidence was introduced by the respondent contradict- ing the testimony of Smouse relating to the manner in which the selections for lay-off from his shift were made, the respondent contends that the ostensible reasons given by Smouse and Brand constitute the true reasons for the lay-offs. We take up this contention in connec- tion with the discussion of the individual conmplainants. There were, as stated above, about 184 women and 80 men employed Iii the packing department prior to the lay-offs on September 17, 1937. There are union application cards dated earlier than September 17 for 50, or 27 per cent, of the women, and for 34, or 42 per cent, of the men employees.32 On September 17, 24 women and 8 men were laid off. There are union application cards dated prior to September 17 in the names of 16 of the 24 women, or 67 per cent,, and 7 of the 8 men, or 87 "-Deneisbeck , the plant manager , testified, and we find , that the actual shut-down of #6 furnace was not known until "just a few clays" before September 17, and that he had advised his department heads "four or five days or a week betore " that it would go down if business did not Improve. 30 Four other employees on Smouse's shift , who are not named in the complaint, were included in the list : Gladys Wilson , Iva Hunt, Josephine Pratt Hall, and Eva Murphy All of them were union members. 31 "G" furnace is the same as 6 furnace 32 This does not include 3 undated cards 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD per cent. Thus it appears that a higher proportion of union members; were laid off than would be expected on the basis of union membership in the department as a whole. In the light of the foregoing facts, we turn to a more detailed con- sideration of the circumstances bearing upon the lay-oft of the com- plainants from the packing department. Lena Anselene was first employed by the respondent in 1927, as a selector in the packing department; she worked steadily in that capac- ity from January 1929 until she was laid off September 17, 1937. At the time of the lay-off only 6 of the 184 women in the department had longer service than Anselene. Anselene joined the Union July 12, and thereafter took an active part in its activities. She served on the policy and organizing com- mittees, canvassed employees at their homes, and passed out many union application cards. About August 4 Smouse, her foreman, asked why she had not come to him for advice before being elected a member of the policy committee. The following day she was told to stay after a departmental meeting and, as we have found above, Brand stated that he understood she had been elected to a union committee, criti- eized her for soliciting during working hours, and warned that she was on probation for the future and would "be out of a job sooner or later." Anselene was transferred to lehr #11 in August, shortly after Brand had warned that her job was in danger. As found above, this transfer was made by Smouse at Brand's direction in order that Anselene, together with other union members, might be laid off with- out embarrassment when furnace #6 should close. Anselene was included in the group of employees named in the list handed Smouse by Brand with instructions to lay them off and to prepare reasons, other than union membership and activity, for their lay-off. Smouse's first reason for including Anselene in the lay-off was "due to G furnace going down." This was rejected by Brand, who told Smouse that he should submit a more acceptable reason. Smouse testified that he was "up against it to make out reasons" for the lay- offs, and particularly for Anselene. Brand told Smouse, "You know she lied; she is not truthful." Smouse then wrote out the following' reasons for her lay-off: "Lena Ansline was furlowed due to reduced operation and also because she was not truthful or dependable. She coercioned some of the people on her shift by telling them falsehoods." This statement is dated September 16 and is signed by Smouse. Six or eight days after the lay-off of September 17. Brand asked Hall. Anselene's boss packer. to prepare a recommendation for her lay-off and to date it September 15. Hall did so, and his statement reads in part as follows: "It seems, as though she is dissatisfied as to the work- ing conditions, she wants to be talking while on the job. I have called OWENS-ILLINOIS GLASS COMPANY 113 this to her attention several times , but it seemed to do no good. By this, I mean that she bothered other people , that were workmg with her." This statement was then typed on the same sheet with the reasons previously given by Smouse. The respondent contends that the reasons given in the recommen- dations of Smouse and Hall are the only reasons for Anselene's lay- off. While the reduction -in operations required that some employees be laid off, that reason does not account for Anselene's hay-off. As found above , when Sniouse submitted that as the only ostensible rea- son, Brand rejected it as unsatisfactory Moreover, she was ti aus- ferred to and kept in #11 lehr for about a month, contrary to the usual practice , in order that she might be included in the lay-off when #6 furnace shut clown. In support of the second reason , that Anselene was not truthful and "coercio led" employees by telling them falsehoods, the respond- 'Cut points to the testimony of Dorothy Vincent, a selector, and Smouse. Vincent testified that Anselene told her "there would be a fine if we didn't sign " and that this statement worried her so that she asked Foreman Smouse if it were true . Smouse testified that Vincent was one of three employees that lie talked to at Brand's suggestion, and that they substantiated the statement that Anselene had "coercioned some of the people on her shift by telling them falsehoods." The only "falsehood" allegedly told by Anselene was that employees who did not join the Union would,be fined, presum- ably if they later sought to join . Although there is no evidence that the statement attributed to Anselene vas a falsehood , even if it were untrue; .the assigning of it as a reason for lay-off impresses us as a mere afterthought. Such statements are not unusual during an organizational campaign, especially when the union's efforts are oh- structed by employer interference , such as is shown in this case.- The third reason , that Anselene interfered with other employees by talking too much on the job , obviously was not considered in se- lecting her for lay -off. It was first advanced 6 or 8 days after she was laid off . Hall, who wrote the statement containing this reason, testified that all selectors talked, and that Anselene "didn't talk any more than some of the rest of them ." Anselene was an efficient and capable selector. She testified that she talked about the Union in the dressing room , during lulls in work, and before and after working hours; she denied that she talked while working on the lehrs. Sev- eral employees testified that Anselene talked an undue amount on the lehrs. We recognize that excessive talking by selectors while ss See Matter of Viking Pump Company and Lodge 1683, Antatgamated Aswetattoit of Iron, Steel, and Tin Workers of North America, Tlcnough the Steel Workers Organizing Commit- tee, aJfeiiated with the Congress of Industrial Organizations ( foi me, (y Committee for Indus- trial Otganizatton), 13 N. L R B 576, 585 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working on the lehrs is not a desirable condition, inasmuch as inspect- ing,ware requires close attention in order to detect defects which, if passed, might have serious consequences to anyone using the defective bottles. However, we are not persuaded that Anselene was an out- standing violator of the rule against talking; the evidence establishes that some talking was permitted and that the rule was not strictly enforced. Moreover, it is plain that, even assuming she was guilty of excessive talking, that fault was not assigned for-her lay-off until several days thereafter. The respondent's records indicate that when Anselene was laid off she was considered eligible for rehire. Since that time, however, the respondent has decided that she should not be reemployed. Miles Beishline, the plant manager,34 testified that in the spring of 1939, when business increased, he investigated Anselene's case, and satisfied himself that she was not a -good selector because "she had evidently lost interest in selecting and spent so lunch of her time in the factory not selecting and keeping, other people from it" and "had always been inclined to do too much talking on the lehrs." As a result, Beishline decided that she should not be reemployed, and the follow- mg entry was made on her service card, tinder date of March,31, 1939: "This person does not work well with others or she does not fit well with the organization." We find that the respondent laid off Lena Anselene on Sel>tenlber 17, 1937, and thereafter refused to employ her, because of her member- ship in and activity in behalf of the Union, and that the respondent thereby discriminated with regard to her hire and tenure of employ- ment to discourage membership in a labor organization; and that the respondent thereby interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed iii Section 7 of the Act. At the time of her lay-off Anselene was earning 52 cents per hour, working 6 hours per day and 6 clays a week. She earned $25 between then and the date of the hearing. Edith Gallion had worked as a selector for about 4 years beginning in 1920 or 1921. She was rehired in September 1933 and worked steadily as a selector until she was laid off September 17, 1937. At the time of the lay-off she was working. on Smouse's shift, on #8 lehr. She had longer service than 144 of the 184 women employees in the packing department. Gallion joined the Union on July 19, and attended two or three union meetings prior to her lay-off. She did not pass out tiny union appli- cation cards or secure any menmbers. The day after she joined the Union, however, Smouse called her into the office and asked if she was satisfied with her wages. After some discussion she remarked that he "Beisbline succeeded Denelsbeck as plant manager in May 1938. OWE\S-1LLll' O1S GLASS COMPANY 115 most know that she had attended a union meeting the preceding day. Smouse replied, "Yes, that is the reason I called you into the office." He then advised her to leave the C. I. 0. alone, showed her pictures of strikes, and said, "You know, this Union pulls strikes." Her name was included in the list given to Smouse by Brand with instructions to prepare reasons, other than union membership or activity, for her lay-off. . The first reason assigned by Smouse was that Gallion was "laying off too much."' This was not satisfactory to Brand. Smouse there- upon prepared a memorandum, dated September 16, reciting that her lay-off was "due to the reduced operation, also due to the fact that she was not dependable. She was continually laying off six or seven days at a stretch without any good reason whatever." This statement listed the dates on which Gallion had been off.35 A third statement, also dated September 16 and prepared by Smouse at Brand's direction, con- tained the same reasons as the second but added that, "If this reduced operation had not come at this time, it would have been necessary to dis- charge her on account of laying off so much." The respondent insists that Gallion was laid off for the reasons stated in Smouse's memoranda lied not because of her union member- ship or activity. Edith Donlin, who had worked with Gallion, testi- fied that Gallion "laid out" a good deal, and that she heard Smouse ask her several times why she did not come to work and was not more interested in her job than in riding around in her car. We are con- vinced that Gallion's absence from work was not the true reason for her lay-off. Her union membership was known to Smouse and Brand. Brand included her in the list of union members to be laid off by Smouse. It is plain, therefore, that Brand had decided, several days before the lay-off and the preparation of reasons therefor, to include Gallion because of her union membership. There is no showing that Brand was in any way influenced in his selection of Gallion by the fact that she was frequently absent from work. In fact, when Smouse first submitted "laying off too much" as the reason to explain her lay- off, Brand wanted a more plausible reason. There-is no evidence that Gall ion's absence from work on any of the days mentioned in Smouse's memorandum was without permission or against instructions. Her service record bears a notation as of the time of the lay-off indicating that the respondent considered her eligible for rehire. Plant Manager Beishline investigated Gallion's case in the spring of 1939 when the respondent was adding employees in the packing department. He testified that he found that Gallion "was' very disinterested in her work, very irregular in her attendance, and, most " According to this list she had been off the following days • August 1, 2. 3, 4. 5 19 20 21, 22 , 23, 24 , and 28 ; September 5, 6, 8, 9 , 10, 11, 12, 13, 14, and 15. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seriously, she was not a good influence on the girls in the-packing department." He thereupon decided that Gallion should not be recalled. Her service card, under date of March 31, 1939, has the following notation : "This person does not work well with others or does not fit well with the organization." Beishline stated that there were "moral questions" involved in her case, and counsel for the respondent stated for the record that he would not go into the facts that would justify such a conclusion in order not to "embarrass anyone." In its exceptions; the respondent argues that "the fact that the details of Edith Gallion's lack of moral character are not in the record is immaterial." We do not accept this contention. The facts supporting the conclusion of Beishline are essential in order for the Board to determine whether the conclusion is reason- able. To accept the respondent's contention would be tantamount to delegating to the respondent the determination of whether rein- statement should be ordered, a duty which is imposed upon'the Board by the Act.36 We find that the respondent laid off Edith Gallion on September 17, 1937, and thereafter refused to employ her, because of her mem- bership in the Union, and that the respondent thereby discriminated with regard to her hire and tenure of employment to discourage mem- bership in a labor organization; and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. Gallion was earning 52 cents an hour at the time she was laid off; employees in the packing department usually worked 6 hours a day and 6 days a week. Since her lay-off Gallion has done housework, but the amount of her earnings at this employment does not appear in the record. Flossie Stemple had worked as a selector at the respondent's Clarks- burg plant from 1921 to 1924 In November 1934 she was employed at the Fairmont plant, in the repack department; she was trans- ferred to the packing department in the spring of 1935, as a selector, and continued to work in that capacity until laid off September 17, 1937. At the time of her lay-off, Stemple had longer service than all but 14 of the 184 women in the department. Stemple joined the Union on July 24; thereafter she attended union meetings, passed out a number of application cards. and sigi ed up 4 employees. After she had joined, Brand asked her and the women at the lehr what time they were meeting the following day at the Labor Temple. 36 The respondent did not request that the hearing be closed to the public for the purpose of receiving testimony regarding the alleged moral issue Such procedure obviously would have met the respondent's reluctance to "embarrass anyone " OWENS-ILLINOIS GLASS - COMPANY 117 About three weeks or a month before she was laid off, Stemple was transferred to #11 lehr by her foreman, Page. As we have found above, the transfer of union members to lehrs 11 and 12 was for the purpose of facilitating their lay-off when .furnace #6 shut down. We find that Stemple was transferred to lehr #11 by Foreman Page in order that she might be more easily laid off, because of her union membership and activity, when furnace #6 closed down. There is no contention that Stemple was not a satisfactory em- ployee. The respondent advances no reason, other than the necessity for lay-offs because of reduced operations, for including Stemple in the group laid off. Her foreman, Page, merely told her that she was being laid off because #6 furnace was shutting down. As noted above, Stemple was one of the oldest employees in point of service in the department. Although the respondent did not follow seniority, Stemple's length of service and ability would seem to have war- ranted retaining her in preference to many employees who had worked in the department only a few months. Upon all the evidence, we find that the respondent laid off Flossie Stemple on September 17, 1937, because of her union membership and activity, and that the respondent thereby discriminated with regard to her hire and tenure of employment to discourage member- ship in a labor organization; and that the respondent thereby inter- fered with, restrained, and coerced its employees m the exercise of rights guaranteed in Section 7 of the Act. As a selector, Stemple earned 52 cents an hour and worked 6 hours a day and 6 drays a week. From the date of her lay-off until April 4, 1938, Stemple was unemployed. She was recalled as a selector in the decorating department on April 4, 1938, and worked about 10 days; she was again recalled to the same department about May 1 and worked until about May 15, 1938. On both occasions she worked as a selector, earning 52 cents per hour. On April 16, 1939, she was rehired as a selector in the packing department, at 49 cents an hour. On May 1 her rate was changed to 52 cents, and she continued at that rate until her employment was terminated on June 22, 1939. The propriety of this termination is not in issue. June Tennant was first employed by the respondent in April 1935. After working about a week in the repacking department, she was transferred to the packing department where she worked as a selector until she was discharged in June 1936.' She was rehired in Septem- ber 1936 as a selector in the packing department, and Worked until September 17, 1937, when she was laid off. At the time of the lay-off, "''The respondent's records show that she was discharged for carelessness Tennant testi- fled she was laid off for failing to iepoit, however, her testimony indicates that her employ- ment was terminated at that time, inasmuch as she inquired of Brand about "getting back on" and she thereafter applied for employment We find that she was discharged in June 1936. 283036-41-vol 25 9 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tennant had longer service than 40 women in the department who were not laid off. Tennant joined the Union July 6, 1937.38 She attended about 6 union meetings before she was laid off, distributed 15 or 20 union application cards, and signed up several members. About 4 or 5 weeks before she was laid off, Tennant was trans- ferred to lehr#-,11 by Foreman Page. As we have found above, this transfer was made so that she might readily be laid off when furnace #6 should go clown. Before the lay-off, Page told Tennant and Rosie Utzie, who was working with Tennant, individually, that each had told him that the other belonged to the C. 1. 0. When the girls began accusing each other for telling, Page walked a-Nw ay laughing.3" The respondent makes no claim that Tenhant's work was unsatisfac- tory. Smouse testified that her work was as good as that of the aver- age selector. When Page informed her of the lay-off he said, "June, I hate to do this, but orders is orders, there is a tank going down, and you are married and your husband is working, and you are going to be furloughed for a while." Tennant testified that three selectors, who were "younger in service" than she, were married and were not laid off when she was. Tennant's husband did not work for the respondent; the husbands of two of the selectors she named did. In view of the fact that Tennant was included in the group trans- ferred to the lehrs served by furnace #6, which transfers were made for the purpose of facilitating lay-offs because of the union member- ship and activity of the employees transferred, and the insubstantial reason assigned by Page, we find that June Tennant was laid off by the respondent on September 17, 1937, because of her union mean- bership and activity, and that the respondent thereby discriminated with regard to her hire and tenure of employment to discourage membership in a labor organization; and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. Tennant was earning 52 cents an hour when she was laid off, working 6 days a week and 6 hours a day. She was reemployed May 1, 1939, as a selector in the packing department, and was working at the time of the hearing. She began at 49 cents an hour but was in- 38 Margaret Beatty, who was laid off at the same time as Tennant , testified that after the lay-off Tennant suggested that Beatty sign a union card , date it back several months, and then join Tennant and several other employees who were going to seek reinstatement. The respondent contends that Tennant probably followed the procedure she recommended to Beatty and did not sign a union application card until after she was laid off Although we credit the undenied testimony of Beattv we do not believe that it indicates that Tennant was not a member of the Union when she was laid off Beatty was rehired a week after she was laid off and worked steadily thereafter except for a lay-oft from October 26 to November 13, 1937. Itosie Utzie, who had longer szi Nice than all but 21 women in the department, was also laid off 012 Septembei 17 nei union application card is dated September 7 OWENS-ILLINOIS GLASS COMPANY - - 119 creased to 52 cents after working a month. Between the time she was laid off and rehired, she earned' approximately $150 selling butter and cottage cheese. Nick Balseto entered the employ of the predecessor of the respond- ent in 1912 and worked until 1915, when he quit. He returned in 1922 as a selector and lehr attendant, and continued in that capacity until laid off on September 17, 1937. At the time of his lay-off, Balseto had longer service than all but 10 of the 80 men in the packing department and was senior in point of service to all those laid off on September 17. Balseto joined the Union on July 6 and was elected financial secre- tary on August 19. He was one of the most active union workers in the plant; he attended meetings regularly, canvassed employees, passed out over 100 application cards, and signed up a number of members. The day after Balseto was elected financial secretary of the Union, Brand, superintendent of the packing department, called him aside, stated that Balseto was acting as though he was not satisfied after having been a "model man all these years," and asked what was the natter with him. Balseto replied that he did not understand what Brand meant by his remarks. Brand then explained that he was referring to Balseto's connection with the Union and election to a unions and strikes and referred to people starving in coal-mine tended to stay with it, that lie would continue doing his work, and that he was not "going back on the company." Brand gave it as his opinion that Balseto would be sorry, reminded Balseto that be was in debt for his house and added, "If you lose your job, you lose your house." Brand also showed Balseto pictures and papers regarding unions and strikes and referred to people starving in coal mine strikes. A few days after Brand had made the above remarks, Balseto ap- proached his foreman, Page, for advice regarding some. defects on a bottle. Page "never answered about the bottle at all, but started talking about the C. I. 0."; he advised that Balseto should-"go up to Jimmie Police," an employee, aiid tell Police to resign from the C. I. 0. Page characterized the C. I. 0. as "crooks" and "reds"; he told Balseto, "If you want William Green, and if you get a man in the plant, you can join the A. F. of L., but don't ever join with Lewis. He is oiie of the reddest men in the United States." Balseto was transferred to #12 lehr about a week after he was elected financial secretary and after he had had the foregoing-conver- sations with Brand and Page. Theretofore he had worked on #2, lehr for 5 or 6 years. Balseto asked Page the reason for the trminsfei Page answered that he did not know, that Brand nd was responsible. After the' transfer,-Swick and Garlov^, foremen in the shipping and 120 DECISIONS OF NATIONAL LABOR , RELATIONS BOARD storing department, remarked to Balseto that he was "getting towards the air." We find, as stated above, that Balseto was transferred to #12 lehr in order to enable the respondent to lay him off because of his union membership and activity when furnace #6 shut down. When Page informed Balseto that he was laid off, Page stated that he was sorry but that Brand had made out the list. The respondent does not contend that Balseto was an incompetent employee. The defense is that he was of a mean and disagreeable dis- position, and that his conduct toward the women working on the lehrs was, abusive and interfered with their work. Several women em- ployees in the packing department testified to the foregoing effect. Elizabeth Morgan Vincent testified that she worked with Balseto in 1937 prior to his transfer to #12 lehr. She stated that he was ,'very disagreeable all the time" and that if a selector "did anything wrong, you were cussed about it." Balseto "cussed" her more than once; on one occasion when she had made a mistake he made her cry by telling her that she was "God damn hellish dumb." Carrah Frances Hammack testified that she had worked "a good bit" with Balseto and that when the Union was being organized lie urged her each day for about a week to join. She testified that his urging made her nervous and she "got so mixed up that I didn't know what I was doing." She finally signed an application card 4e Sarah and Mary Securro testified that Balseto frequently talked to them during working hours and at their homes about joining the Union; that he warned them that if they did not join then it might later cost them $25; and that even prior to the summer of 1937 he had been mean and uncooperative toward the selectors. While the testimony above set out was not denied by Balseto, we are not persuaded that his allegedly abusive conduct was the reason for his lay-off. Vincent and Hammack did not report Balseto to the supervisors. Nor is there any evidence that the Securro sisters com- plained about his conduct. There is no evidence that any supervisor had warned Balseto that his conduct and treatment of women em- ployees were objectionable. Beishline, the plant manager, testified that in the spring of 1939 he discussed Balseto's case with the per- sonnel director, the department head, and the foreman, and that they reported to him that Balseto "swore at these girls, abused them, and harrassed them about this subject, the union subject." Beishline de- cided that, because of his abusive conduct toward the women, Balseto ,should not be reemployed; he stated that "it is beyond my under- standing how he (Balseto) was allowed to do it as long as he did." 41 40 Hammack's application card is dated July 18, 1937. 4' In April 1939 the following entry was made on Balseto' s service record : "Disagreeable to work with-argues with supervisors-girls do not like to work with him-a quick -temper-has made girl cry on job due to meanness " OWENS-ILLINOIS GLASS COMPANY 121 The respondent, in its exceptions, sets up a matter which is ad- mittedly outside the record. The respondent states that "a number of years ago," Balseto was convicted of murder in the County Court at Fairmont and served part of a 15-year term therefor in the West Virginia penitentiary. Although this matter was known at the time of the hearing, the respondent states that it "decided that this chapter of Nick Balseto's life should not be reopened at the public hearing of this cause being conducted in Fairmont." Nevertheless, the respond- ent urges that "this is something the Board should know in considering the `hot-headed' personality here involved." If it is true, as the re- spondent alleges, that Balseto was convicted of murder and was in- carcerated for part of a 15-year term, it obviously must have happened many years ago inasmuch as Balseto was employed steadily by the respondent from 1922 to 1937. Presumably it was known to the re- spondent while he was employed; 42 there is no evidence, and the respondent does not contend, that it was considered in selecting Bal- seto for lay-off. The reasons assigned by the respondent for laying off Balseto and thereafter deciding that he should not be reemployed, impress us as ex post facto arguments advanced to justify a discriminatory act. As, we have noted, Balseto was an outstanding proponent of the Union in the packing department, a fact known to his superintendent, Brand, and foreman, Page; he was transferred, along with other employees who belonged to the Union, to a lehr served by a furnace which was then expected soon to shut down, for the purpose of facilitating his lay-off because of his activity and membership in the Union. We find that the respondent laid off Nick Balseto on September 17, 1937, and thereafter refused to employ him, because of his union member- ship and activity, and that the respondent thereby discriminated with regard to his hire and tenure of employment to discourage mem- bership in a labor organization; and that the respondent thereby inter- fered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. At the time of his lay-off, Balseto was earning 66 cents an hour, working 6 hours a day and 6 days a week. After being laid off he worked on W. P. A. for a period not specified in the record, at $28.25 per month. He also drew the unemployment insurance due him, but the amount thereof does not appear. On May 15, 1939, he was em- ployed by the Monongahela Rail and River Coal Corporation at Morgantown, West Virginia, as a clay worker and coal loader. The work is irregular, from one to four days per week. Part of the time he is paid at it straight hourly rate of 82.3 cents, and at other times 4'Brand's statement to Balseto, referred to above, that Balseto had been a "model man all these years" indicates that Brand had such knowledge. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he is paid $2.90 for each car loaded. The total amount of his earnings at this employment is not shown. He testified that he did not know whether the job was temporary or permanent. Lester Henderson was employed by the respondent in October 1923, and worked steadily as a lehr attendant in the packing department until he^ was laid off on September 17, 1937. He had longer service than all but 16 of the 80 men in that department. Henderson joined the Union at the first open meeting on July 6, 1937. He attended meetings and tried, without success, to get em- ployees to join the Union. After he joined, Brand called him into the office and showed him some newspaper articles about strikes at steel mills. Brand asked if he had signed a union card; Henderson replied that lie had. About a month before the lay-off he was trans- ferred from #2 Lehr to #12 Lehr by his foreman, Wolfe.43 We find, as stated above, that this transfer was made because the respondent de- sired to eliminate Henderson and other employees, because of their union membership and activity, when the furnace serving lehrs #11 and #12 shut down. When Wolfe laid him off on September 17, he told Henderson that the reduced operation necessitated the lay-off. The respondent does not claim that any specific reason warranted the selection of Henderson for lay-off in preference to over 50 em- ployees in the department who had shorter service than he. It con- tends that the evidence does not show that he was laid off for discrimi- tory reasons. We do not so view the evidence. Brand knew Hender- son belonged'to the Union; Brand caused Henderson to be transferred for discriminatory reasons; and the evidence abundantly demonstrates the lengths to which Brand and his foremen went in discriminating against employees active in the Union. 'We conclude, and find, that the respondent laid off Lester Henderson on September 17, 1937, because of his union membership and activity, and that the respondent thereby discriminated with regard to his hire and tenure of employ- ment to 'discourage membership in a labor organization; and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. At the time of his lay-off, Henderson was earning 66 cents an hour, working 6 hours a day and 6 clays a week. He earned about $50 on W. P. A. between September 17, 1937, and April 4, 1938. On the latter date he was recalled to work by the respondent in the decorat- ing department, at 66 cents an hour. He worked until August 3, 1938, when he was laid off. He was again recalled to work on April 43 Walter Morris , who was not a member of the Union, was transferred at the same time from # 12 lehr to Henderson 's place on # 2 Lehr. OWENS-ILLINOIS GLASS COMPANY 123 16, 1939, in the packing department, at 58 cents an hour, and was working at the time of the hearing., Anthony Laratta had worked intermittently in the maintenance de- partment from 1929 to 1935. In 1935 he became a lehr attendant in the packing department and, except for short periods as a bricklayer in the maintenance department helping rebuild a furnace, he con- tinued in that capacity until his lay-off on September 17, 1937. Laratta joined the Union at its first meeting, on July 6, 1937. Thereafter he talked to employees in favor of the Union and attended meetings. He did not pass out any application cards. In August Wolfe, a foreman in the packing department, talked to him about labor organizations. Wolfe characterized labor organizations as com- munistic and radical, and stated that the "organization"-brought on strikes and caused people to be out of work and hungry. In August Laratta was transferred by his foreman, Smouse, to lehr #12. Theretofore Laratta had worked on lehrs #7 and #8 for about 2 years. As we have found above, Laratta was transferred by Smouse, who so testified, for the purpose of making it more convenient for the respondent to lay him off when furnace #6 shut down. Smouse then knew that Laratta belonged to the Union. Laratta's name was in- cluded on the list of union members given Smouse by Brand about September 12 with instructions to prepare reasons for laying them off, other than the true reason of union membership and activity. Laratta had usually been transferred to the maintenance depart- ment when a furnace shut down, to work as a bricklayer while the furnace was being rebuilt. He anticipated such work when furnace #6 went down. Amer Hall, a-boss packer, told Brand, the super- intendent, about a week or 10 days before the furnace closed that Laratta expected to be transferred to the brick gang. Brand told Hall, with reference to this expectation of Laratta's, "That son-of-a- bitch will never lay any more brick for this company as long as I am here." Smouse told Laratta, when lie advised him of the lay- off on September 17, that he was not being transferred to the main- tenance department because no extra bricklayers were being hired lo rebuild the furnace. The first reason given by Smouse for laying off Laratta was "due to G furnace going down." This reason did not satisfy Brand, so Smouse prepared a new one on September 16, in Brand's presence, as follows : Due to reduced operations, I recommend that Tony Laratta be furlowed. Tony was somewhat disatisfied with his raise and evidently he is a good brick layer and I thought probably lie could secure a job as brick--layer elsewhere. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Later the same day Smouse and Brand added to the foregoing state- ment the following two paragraphs : We have transferred him back and forth to maintenance dept. several times when a furnace was to be rebuilt. I went out of my way several times to transfer Tony when a furnace was to be rebuilt, so that he could make extra money as the- brick laying job carried a higher rate per hour. Laratta's lay-off on September 17 is of a pattern with those of other employees in the packing department who were members of the Union. First he was transferred to a lehr served by a furnace which was expected soon to shut down; his foreman and superin- tendent then prepared reasons justifying his inclusion in the lay-off, whereas they had already determined that he should be laid off because of his membership and activity in the Union. We find that the respondent laid off Anthony Laratta on September 17, 1937, because of his membership and activity in the Union, and that the respondent thereby discriminated with regard to his hire and tenure of employment to discourage membership in a, labor organization; and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. The amended complaint further alleged that Laratta was rehired on September 20, 1937,,to work in another department, and that the respondent laid him off on November 20, 1937, because of his union membership and activity and because he refused to report, to the respondent concerning the union activities of other employees. The Trial Examiner found that the respondent discriminatorily laid off Laratta on November 20, 1937. Two or three days after the lay-off of September 17, Brand sent for Laratta and had a friendly talk with him, during which he told Laratta that whenever he had a grievance he should see the people who were interested in him. Brand then offered Laratta a job laying brick in the maintenance department, over which Brand had no supervision so far as the record shows. Laratta then went to work as a.bricklayer and continued at that work until November 20, 1937. During the period that he worked as a bricklayer, Laratta at- tended union meetings. Each week, after a union meeting, Brand came to him and asked how he was getting along with the Union and what 'the Union was doing. Laratta discussed union activities with Brand and "told him a lot of things I didn't like over there." On November 15 Laratta took another bricklayer, Tom Plymale, to a union meeting and Plymale Was signed up at the meeting by an organizer. On November 20 both Laratta and Plymale were laid OVENS-ILLINOIS GLASS COMPANY 125 -)ff. At that time the bricklaying on furnaces #6 and #2 was com- pleted.44 Laratta was offered employment in the packing depart- ment in April 1939, but-he rejected the offer because he had other work at which he was making more money. We do not believe that the evidence establishes that Laratta's November lay-off was discriminatory. As we have found above, we think Brand rehired Laratta, after including him in the September 17 lay-off for discriminatory reasons, with the expectation of using Laratta as an informer on the Union. We are of the opinion, as stated above, that this purpose and use of Laratta by Brand is the only reasonable explanation of Brand's sudden change in attitude toward, and treatment of, Laratta, and his practice of visiting Laratta and securing information about the Union from him during the period Laratta was employed as a bricklayer. Since we find that the respondent rehired Laratta for the purpose of using him as an informer and so used him, Laratta's union mem- bership and attendance at union meetings are of no significance in determining whether 'he was discriminated against on November 20. The fact that he took another employee to a union meeting shortly before the lay-off is not an important circumstance, since there is no evidence that Laratta was no longer acting as an informer for Brand, nor does the record support the allegation that Laratta re- fused to report on union activities. The brick work was finished when Laratta was laid off, and the two furnaces which had been rebuilt did not then resume operations. We conclude that Anthony Laratta was not discriminatorily laid off on November 20, 1937. Inasmuch as Laratta does not desire to be reinstated, we shall limit the back pay to be awarded him to the sum he would have, earned as wages as a bricklayer for the period beginning September 17, the date of the lay-off, and ending September 20, 1937, the date he was rehired .41 Lester Glenn Lewis was first employed by the respondent in 1917 as a lehr man, and worked until 1925, when he quit. He worked a short period at the same job in 1926 or 1927. On February 1, 1934, he was rehired as a lehr attendant and worked steadily until he was "There was no further brick work to be done Purpaco #6 (lid not iesmue operations until December 2, 1937 , and furnace #2 remained shut down until November 3, 1938. " Furnace #4 , which scived lehrs # 7 and #8, did not close down until June 6, 1938. As stated above , Laratta had woiked on lehrs #7 and # 8 for about 2 years prior to his transfer to lehr #12 in August 1937, which transfer was for the purpose, as found above, of facilitating his lay -off in September for discriminatory reasons Thus it is possible that, but for these discriminatory acts, Laratta would have continued to work , at the job he held prior to the transfer, beyond November 20, 1937 . It is equally probable, however , that in the absence of any discrimination , Laratta would have been assigned to brick work in September and laid off when it was finished in November Since he usually was given brick work when a furnace was to be rebuilt , we assume that lie would have been trans- ferred to the maintenance department on September 17, the day furnace # 6 shut down. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laid off on September 17, 1937. Lewis was working under Foreman Parsons at the time of the lay-off. . Lewis joined the Union on July 6, 1937; thereafter he attended union meetings, passed out application cards, and signed up a num ber of members. Late in August Parsons, his foreman, asked Lewis if the Union had ever obtained a contract with the respondent; when. Lewis answered that it had not, Parsons said, "This company will never recognize the C. I. '0." Shortly after the foregoing conver- sation with Parsons, Brand called Lewis into his office and warned him as follows: "Glenn, I understand you have been soliciting on company time . . . No organization is going to back you up in that way, and no company is going to stand for it. Maybe you don't know this, but I want to warn you." Not long after the above warning'by Brand, and about two weeks before the lay-off, Lewis was transferred from #t2 lehr to #11 lehr. He had worked on #2 lehr most of the time since 1934, except for short periods when #1 furnace was shut down. As we have found, with respect to other similar transfers to the lehrs served by #6 furnace, this transfer was made so that the respondent could con- veniently lay off Lewis when that furnace shut down. Just before the shift ended at 1 a. in. September 17, Parsons told Lewis, "Glenn, this furnace is going down in the morning, as you know, and we are going to have to furlough a bunch, and you are one of them." At the time of the lay-off, about half of the 80 men in the packing department had been employed` for a shorter period than Lewis, and of this group only 3 were laid off in September. About September 18 a group of employees who had been laid off, including Lewis, went to the personnel office. While there, Lewis talked to Brand, who had been called over by Personnel Director Casseday. Brand said that Lewis' work was satisfactory and that he had nothing against Lewis, but explained that Lewis was laid off because the furnace shut down. Lewis was not satisfied with this explanation and asked why he should have been selected when men were kept who had been in the depart- ment only a short period. Brand replied, "You know how it is; you know, you quit a few times and they haven't." 46 ` The respondent does not contend that-Lewis was unsatisfactory in the performance of his work. It claims, however, that he violated instructions against soliciting on the lehr, and that he coerced an employee into joining the Union. Mary De Marco, a selector, testi- fied that one day, when she made a slight mistake in her work, Lewis threatened to report it to Superintendent Brand if she did not join the Union. She testified that Lewis later came to her home and, 9e Lewis had quit twice , but prior to his last employment in 1934. About 11 employees, all of them non-union , who had worked less than a year, were retained In September OWENS-ILLINOIS - GLASS COIIPA\Y 127, forced her to sign a union application card, not only for herself, but also for her husband. Both De Marco's card, and apparently that of her husband,, are dated July 8, 1937, two days after the date on Lewis' card.47 It is apparent that the incident 'testified to by De Marco could not have occurred after July 8. There is no showing' that the matter was brought to the attention of the respondent prior' to the time Lewis was laid off. It could hardly have prompted Brand's warning to Lewis about soliciting on the lehr, for that warn- ing was not given until late in August or early in September, ap- proximately two months after De Marco had signed the cards. This reason was not advanced when Parsons informed Lewis of the lay-off or when Brand discussed it with Lewis later. We find that the respondent laid off Lester Glenn Lewis on Septem- ber 17, 1937, because of his union membership and activity, and that the respondent thereby discriminated with regard to his hire and, tenure of employment.to discourage membership in a labor organiza- tion; and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section' 7 of the Act. At the time of the lay-off Lewis was earning 66 cents an hour, working 6 hours a day and 6 days a week. After he was laid off Lewis was unemployed until July 1938. From July 11, 1938, to April 14, 1939, Lewis worked on W. P. A., earning $38.25 per month. He was reemployed by the respondent on April 14, 1939, as a lehr helper, and continued to work until about May 24, 1939, when he was discharged. The propriety of this discharge is not in issue.48 -Joseph Schnell was first employed by the respondent April 1, 1936. He worked for two weeks in the repack department, passed a selec- tor's test, and was then transferred to the packing department as a lehr man. He was laid off on September 17, 1937. 1 - Schnell joined the Union on July 6, 1937. He signed up a number of employees on his shift. The Sunday after he joined the Union, Superintendent Brand talked to him' about the disadvantages of unions, about strikes, and the hardships he would undergo by join- ing, and told him that he should not do something he would be sorry for later on. Schnell was one of the employees whose union activi- ties were discussed by Smouse and Brand. On one such occasion Brand stated that Smouse's shift was the hotbed of the C. I. 0., and that "Joe Schnell is the dirtiest man you have on your shift." 47 Both cards appear to be In the same handwriting. The entry on Lewis' service record dated May 26 , 1939, and presumably made by John, Paul Merrifield , who had succeeded Smouse as foreman, since it is initialed "J. P.- M ", states that Lewis "several times disregarded the work assignment sheets ,". that "the quality of his work was fair," that he was "definitely ( sic) unsatisfactory In carrying out in- structions," that his judgment ,and team work were unsatisfactory , and that he was of a "sulky disposition." 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About the middle of August Schnell was transferred from #6 lehr to #11 lehr. Smouse, his foreman, testified, and we have found above, that Schnell was transferred to #11 lehr so that he could be easily laid off when #6 furnace shut down. Brand included Schnell in the list of employees to be laid off on September 17 and for whose lay-off Smouse was to prepare reasons other than their union mem- bership and activity. The first reason submitted by Smouse, dated September 13, that Schnell was "not cooperating properly," was rejected by Brand. The second statement prepared by Smouse, dated September 16, 1937, is as follows : Joe Schnell was furlowed due to a reduced operation and also due to a non-cooperative attitude. He objected to everything that was done or suggested. Also his wife is working on the same shift. Later during the day on September 16, and after the foregoing rea- sons had been prepared, Schnell had an argument with Brand and Smouse regarding the application of the bonus, Schnell claiming that his wife had lost two days in one week. Thereupon Brand and Smouse appended the following paragraph to the above-mentioned reasons: - He criticized the bonus and said his wife had not had very much time since bonus was installed. After showing him the time sheet, we found his wife had worked more than straight time. The respondent contends that the stated reasons, and the fact that Schnell was a relatively new employee, are the true reasons for his lay-off. In view of the unrefuted testimony of Smouse relating to the transfers to lehrs #11 and #12, and the preparation of reasons for the lay-off of the employees so transferred to cloak the true reason, their union membership and activity, we conclude that Schnell was discriminatorily laid of£.49 The fact that he criticized the bonus did not influence the decision to lay him off; he had already been selected, and the statement concerning his criticism was added only as a makeweight. Schnell had longer service than 18 men in the packing department, and only two junior to him were laid off at the same time. We find that the respondent laid off Joseph Schnell on September 17, 1937, because of his union membership and activity, .e The respondent urges that the evidence does not, in Schnell's case, support the theory that the transfer to #11 lehr was for discriminatory reasons , because Schnell replaced Howard Glasscock on #11 and Rex Henderson took Schnell 's place on # 6, and both Glass- cock and Henderson were active union members. Both Glasscock and Henderson had worked a great deal longer than Schnell. And in this connection , it might be remarked that Henderson was included in the June 1938 lay-off, so Smouse testified without contra- diction, at Brand's insistence and for discriminatory reasons We have considered the circumstance that these two union members were transferred away from the lehrs served by #6 furnace, but we do not believe that such fact negates all the other evidence sup- porting our conclusion with regard to Schnell. OWENS-ILLINOIS GLASS COMPANY 129 and that the respondent thereby discriminated with regard to his hire and, tenure of employment to discourage membership in a labor organization; and that the respondent thereby interfered with,-re- strained, and coerced its employees in the exercise of rights guaran- teed in Section 7 of the Act. At the time of his lay-off Schnell was earning 66 cents an hour, working 6 hours a day and 6 days a week. Except for earning about $20 working for a transfer company, Schnell was unemployed until he was rehired by the respondent on April 15, 1939. He was working at the time of the hearing. Roy Davis worked at the Fairmont plant from about 1923'to 1928, during which period he quit once and was discharged once. In 1928, after having been laid off, he 'obtained work at the respondent's Charleston plant. In 1932 he returned to the Fairmont plant as a lehr man, and continued in that capacity until laid off September 17, 1937. Davis' union application card is dated August 7, 1937.-50 After he joined the Union he attended one union meeting and passed out some application cards, but received none back from employees. He talked about the Union both on and off the job but not in the pres- ence of his supervisors. In July, before he joined the Union, Super- intendent Brand asked him what he thought of the C. I. 0.; Davis replied that he was not interested in it. Before September 1, when a general increase had been granted, Foreman Wolfe asked him what he thought of the raise. Davis replied that the raise was all right, but added that "we still need a union, I think." Thereupon Wolfe spoke at length against the C. I. 0., saying that it consisted of Bolsheviks and Communists. Until about 4 weeks before the lay-off, Davis had worked on #11 lehr. He was then transferred away from #11 and was working- on #4 lehr when laid off. Davis was informed of the lay-off by his foreman, Page, who told him that Brand had made out the list. Davis had longer service than about 30 of the 80 men in the depart- ment. There is no evidence that Davis' work was unsatisfactory. He was reemployed April 18, 1939, and was working at the time of the hearing. The Trial Examiner concluded, in view of the hostility of Brand and other supervisors in the packing department to the Union, the desire to remove active union employees from the department, and the interest of Brand and Wolfe in Davis' union activity, that the respondent discriminated against Davis. Although the case is not. 60 Davis first identified it card bearing the name "Bay C. Davis" and dated July 19, 1937, as his own Thereafter he admitted that the signature "R. L. Davis," on another card dated August 7 was his, but insisted that be had joined the Union in July we accept the August date as the true date of his having joined the Union. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entirely free from doubt, we do not believe that the evidence is suffi- cient to warrant such a conclusion. As we have found above in the cases of lehr men laid off at the same time as Davis, they were first transferred to the lehrs served by #6 furnace, in order to facilitate their lay-off. Davis, however, was transferred away from a lehr served by #6 furnace. While this disparity in treatment is not con- clusive, it is a persuasive fact indicating that in August, when the transfers were made, the respondent did not have in mind the inclusion of Davis in the. impending lay-offs. Davis was not very active in the Union; when Brand spoke to him in July, Davis told him that he was not interested in the Union; and after joining he attended only one meeting, and his efforts to secure membership were limited to talking about the Union and passing out some application cards. The conversation with Wolfe occurred before Davis was transferred away from lehr #11.51 Thus, it appears that despite Wolfe's knowledge of his interest in the Union, Davis was not kept on-lehr ^#11 but was transferred to a lehr which was not expected to shut down. No anti-union statements were made to him by Page, his foreman. We find that the respondent did not discriminate against Roy Davis by laying him off on September 17, 1937. 2. Lay-offs in shipping and storing department The amended complaint alleged that the respondent discriminatorily laid off Roger Anselene on July 14, 1937, and Frank Church, Joseph Church, Floyd Kerns, Rufus Neel, and Louis Ribel on September 17, 1937, all employees in the shipping and storing department. The Trial Examiner found that the respondent had not discriminated against Frank and Joseph Church, and the Union did not except to that finding. We have reviewed the evidence relating to the Church brothers and agree with the finding of the Trial Examiner; accord- ingly, the complaint will be dismissed in so far as it relates to them. Employment in the shipping and storing department usually ex- periences a slump beginning in July, due to the change from beverage bottles to food containers. For the pay-roll period 'ending June 30, 1937, the respondent employed about 95 employees in this department, Six were laid.off on July 14. At that time about 60 per cent of these employees had signed union application cards prior to July 14; and five of the six laid off, or 83 per cent, had signed. There were 80 employees in the department during the pay-roll period for the first half of September 1937; of these, about-68 per cent had signed union application cards prior to September 17. Eleven employees were 51 Davis testified that he was still working on lehr #11 when Wolfe discussed the raise with him and disparaged the C. I O. The raise was effective September 1, 1937, and Davis was transferred about the middle of August . Presumably the raise was announced about two weeks before it took effect OWENS-ILLINOIS GLASS COMPANY 131 laid off on September 17;' all of them had signed application cards prior to that date. Roger Anselene had worked in the shipping and storing depart- ment for, 5 or 6 months in 1935 and a short period in the first half of 1936. He was rehired on May 22, 1937, and worked as a ware handler until he was-laid off on July 14, 1937, at the same time as five others were laid off. 'In view of the fact that there was a definite slowing down in business at this time, particularly in the department here in- volved, we find that the respondent had good reason to lay off six em- ployees in the shipping and storing department on July 14, 1937. The question remains, however, whether Anselene was selected on a dis- criminatory basis. Anselene testified that he signed a union application card on July 7 or 8. His card, however, is dated July 12. He explained the dis- crepancy by saying that he did not put, the date on the card.62 Anse- lene attended the union meetings on July 6 and 12, talked about the Union, and secured several members. He was present at the depart- ment meeting on July 13, at which Burchett, superintendent of the department, spoke against the Union, as we have found above, and announced that six or seven employees were being laid off the next day. Swick, Anselene's foreman, testified that he made up the list of men to be laid off a day or two before the July 13 meeting. He put Anse- lene on the list because he was not as efficient as those retained. It is clear that Anselene was one of the least experienced men in the depart- ment. Only three employees were retained who had less service than Anselene, and they were members of the plant orchestra who had been hired so that they might become members thereof. The number of employees in the shipping and storing department at any time since the lay-off has not reached the total employed when Anselene was hired in May or laid off in July 1937. None of the five employee's laid off at the same time as Anselene has been rehired, although three of them had longer service than he. ` Although we have found that Burchett linked the announcement of the lay-offs with his anti-union remarks in such fashion as to convey the impression that the lay-offs were due to union activities, we are not convinced that Anselene was laid off for discriminatory reasons. - In view of the necessity for laying off some employees, Anselene's short service, and the lack of evidence that his slight activity in behalf of the Union had come to the attention of any of his supervisors, we conclude that the respondent did not discriminate against Roger Anselene by laying him off on-July 14, 1937. s2 In view - of our conclusion , it is unnecessary to decide the exact date on which he joined the Union - 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Floyd kerns, Rufus Neel, and Louis Ribel, ware handlers in the shipping and storing department, were laid oft September 17, 1937, when the respondent reduced its force by 11 employees in this depart- ment because of the slump in business. Kerns, Neel, and Ribel had worked steadily for the respondent since March and April 1936.3 The three employees involved, all joined the Union at the first meet- ing on July 6, 1937, solicited other employees, and attended union meetings. It appears that the Union'macle rapid headway among the employees in the shipping and storing department;, within about a week after the first, meeting approximately 60 per cent had signed application cards. We, have found that at the July 13 departmental meeting Burchett expressed his hostility to the Union, and made a covert threat that continued membership and activity might result in loss of employment; and that about August 6 Garlow, then acting su- perintendent, warned the employees that their attendance at union meetings was displeasing to the management and urged them to drop the Union. Despite the threats of reprisals, membership in the Union increased to nearly 70 per cent of the employees in the department by September 17. The union activity of Kerns, Neel, and Ribel was not outstanding. Neel testified that, except for one or two employees, all the men on his shift talked about the Union and passed out application cards, and that he did his talking and soliciting secretly. None of the supervisors discussed the Union with any of them, nor does it directly appear that any of the supervisors knew that they belonged to the Union. Foreman Swick, who selected the three for lay-off on September 17, testified that he decided to include them in the lay-off because they were not as efficient or desirable as the employees retained. He picked Kerns because he was slovenly in his appearance and working habits, although there had been no serious complaint about his work; Neel was selected because he was rough in his work, had on several occasions been absent without permission, and had been reported as drinking and fighting when off work; and Ribel was included be- cause he was rough and slow in his work, had been absent without permission several times, and had been reported as running a poker game on occasions when he failed to report for work. The respondent also introduced considerable evidence ' showing that the employees retained, but who had less service than the three involved, were more efficient and versatile, were doing work for which these three em- ployees were not qualified, or were members of the plant orchestra and had been hired for that purpose. Moreover, most of the junior employees retained were members of the Union; and in October "During April 1936 the number of employees in this department increased from 70 to 104. and it was not until September 1937 that fewer than 70 were employed. O`vENS-ILLINOIS GLASS COMPANY 133 practically all of this group, both union and non-union, were laid off. 54 When employment in the shipping and storing department in- creased in the spring of 1939 to the level of 70 and above„ the re- spondent offered employment to Kerns, Neel, and Ribel. Kerns was recalled April 3, 1939, and worked until July 5, 1939, when he was discharged for stealing ware. Neel was offered employment March 22, 1939, but declined. It appears that Neel was offered work in November 1938; it is not clear whether he received the message, but he testified that he would not have accepted because he then had a steady job. Ribel was recalled April 4, 1939; he was discharged August 1, 1939, and this discharge is not in issue. While the hostility of Supervisors Burchett and Garlow to union activity and the fact that all of the 11 employees laid off on Sep- tember 17 were union members, raise a strong inference that Kerns, Neel, and Ribel were laid off because of their union membership and activity, we are of the opinion that the evidence as a whole does not warrant the conclusion that they were laid off for discriminatory reasons. We find that the respondent did not discriminate against Floyd Kerns, Rufus Neel, and Louis Ribel by laying them off on September 17, 1937. 3. Lay-offs in repack department The amended complaint alleged that three employees in the repack department were discriminatorily laid off on September 17, 1937. The Trial Examiner found that the allegation was not 'sustained with respect to Pauline Conrad and Anna Sheets, and the Union did not except to that finding. We have reviewed the evidence relating to Conrad and Sheets and agree with the Trial Examiner's conclu- sions. The allegations of the amended complaint with respect to Pauline Conrad and Anna Sheets will, therefore, be dismissed. There remains for consideration the case of Lucretia Gwynn, whom the Trial Examiner found to have been discriminated against. Lucretia Gwynn 55 was employed in the repack department Febru- ary 22, 1937. This department serves as a training division in which the women employees are trained as selectors. After a few months in this department the women are either advanced to the packing "Only two non-union employees with less service than Kerns remained in the depart- ment after October, Frank Sell and Thomas Whitehair Sell was a tractor driver and whitehair also drove a tractor and did special loading Kerns was not qualified for such work. Sell had more service than Neel or Ribel, and neither of them was qualified to do the work performed by whitehair. 55 Gwynn was not included in the original complaint ; she was first named in the amended charge filed May 22, 1939 238030-42-vol 26---11, 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department or are laid off as unsatisfactory. Gwynn worked steadily in the department, except for a 5-week absence due to an injured hand, until her lay-off on September 17, 1937. Gwynn signed a union application card on July 10, at the solicitation of her brother, Parker Payne; a tractor driver. She attended union meetings thereafter, passed out application cards among the girls in her department, and secured about four members. Gwynn testified that about the last of July her foreman, Robert Smouse, called her to his desk and asked her what she thought of the Union. According to Gwynn, Smouse asked if she would like to see 1,500 employees out of work, and said that the respondent would put the plant under lock and key before it would recognize the Union, and that if Gwynn "wanted to be out of a job, just to sign" up with the Union. He did not ask if she had joined. Smouse denied that he talked to Gwynn as testified by her. The Trial Examiner, who heard the witnesses testify and observed their demeanor, credited Gwynn. We agree with the Trial Examiner and find that Smouse made the statements attributed to him by Gwynn. Foreman Smouse testified that while Gwynn was a faster worker than some of the girls retained, her production was not consistently good and she did not work well with some of the girls. On one test of packing medicine-dropper bottles, Gwynn packed 35 gross in 6 hours as compared with 40 and 50 gross packed packed by two other em- ployees.56 Gwynn had been reprinnanded twice for talking and holding up work at the labeling table, and Kermit Messman, who had general supervision of the labeling table, testified that Gwynn was one of several who were comparatively less satisfactory than other girls,in the department. Smouse also testified that he took into consideration a report that Gwynn had broken her hand while at a drinking party. We think the evidence fails to establish that the respondent dis- criminated against Gwynn. Her, union activity was not outstanding. While we have found that her foreman, in July, asked what she thought of the Union and stated that the respondent would not recog- nize the Union, he did not ask if she had joined the Union and his remark that if she "wanted to be 'out of a job, just to sign" up with the Union indicates that he did not know she had joined. Moreover, this conversation occurred nearly 2 months before she was laid off. It is clear that the other employees laid off with Gwynn were inefficient; _and the testimony that Gwynn's work was inferior to that of many who were retained is persuasive. We find that the respondent did not dis- criminate against Lucretia Gwynn by laying her off on September 17, 1937. ce In the same test. Helen Tucker packed 25 gloss and Pauline Conrad packed 20 Tucker and Conrad were laid off at the same time as Gwynn. OWENS-ILLINOIS GLASS COMPANY 135 4. Lay-off of Nellie Van Gilder, decorating department The amended complaint alleged that the respondent discriminated against Nellie Van Gilder by laying her off on September 30, 1937. At, that time 29 other employees in the decorating department were laid off. The Trial Examiner found that the evidence did not support the allegation with respect to her. The Union did not except to his finding. We have reviewed the evidence and agree that the respondent did not discriminatorily lay off Nellie Van Gilder on September 30, 1937. 5. Lay-offs in wood-box department The amended complaint alleged that Edward Martin and TVilbu(r Deskinls, ' employees in the wood-box department, were laid off on October 12,1937, because of their union membership and activity. The Trial Examiner found that the evidence did not support the allegation. The Union has excepted to the Trial Examiner's finding in this respect. In August 1937 the pay roll in the wood-box department was re- duced from 161 to 118 because of lack of business. The number of employees was further reduced in 'October from 114 to 60. Martin had worked for the respondent on a number of occasions, in several department's, between 1930 and 1936. He was last employed in the wood-box department on March 15, 1936, and worked principally as a nailer. Deskins had worked steadily since December 1930 in the department; he had performed various tasks, but worked principally as a rip-saw operator . On October 1, 1937, the employees in the wood-box department were informed that because of lack of work they would work "week about." Martin was told by his foreman, Lawrence Dodd, to report for work on Monday, October 11. Martin voiced his objections to this'arrange- ment to John Howell, superintendent of the department, as well as to Dodd. Martin testified that he returned on October 11 but was told not to ring in his card by Dodd, and that Howell told him to "go home and wait and I will call you in a few days." Dodd denied that Martin reported on October 11; Howell testified that he did not see Martin on October 11, and that he and Dodd decided to include Martin in the October 12 lay-off because he had failed to report. The Trial Examiner did not credit Martin's contention that he reported for work,on October 11. We find that he failed to report. Deskins like- wise was told on October 1 to "come down and see about work"" on October 11, and objected to the arrangement of "week about." Deskins told his foreman, Wiley, to send for him, and he did not put 6' At that time the respondent had a rule that If an employee "reported" for work he would receive 3 hours' pay for reporting . Deskins' foreman , William Wiley,-- apparently told Deskins to "come down and see about" work , rather than to "report." - 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in an appearance on October 11. When he failed to return, Howell and Wiley included him in the list of about 40 employees laid off on October 12. Martin and Deskins had joined the Union in July and August, respectively. Martin testified that a few days after he joined, Howell asked him, "Ed, how come you are so strong for the C. I. 0." and told him to watch what he was doing before he signed up, and that when he protested about working "week about" Howell told him, "The C. I. O. is not running this place." Howell denied having made the statements attributed to him by Martin. We find it unnecessary to resolve the conflict in testimony. We find that the respondent did not discriminate against Edward' Martin and Wilbur Deskins by laying them off on October 12, 1937. 6. Lay-offs in machine-repair and maintenance departments The amended complaint alleged that the respondent discriminator- ily laid off William Linn, an employee in the machine-repair depart- ment, and William Booth and Sam Potesta, employees in the mainte- nance department, on October 27, 1937.58 The Trial Examiner found that Linn and Potesta had not been discriminated against, and recom- nl_ended that the complaint be dismissed as to them. The Union has excepted to the Trial Examiner's findings and recommendations with respect to Linn and Potesta. Linn was first employed by the respondent in 1915 and worked about 3 years as a selector. He returned in 1919,and worked in various departments until 1936. During this period he was laid off a number of times. He was discharged on April 19, 1936, at which time he was working as a machine operator, and a notation was placed on his employment record that he might be hired in another department. He was rehired April' 28, 1936; as a temporary helper in the machine-repair department, and worked as a "swing" or extra oiler and assisted a pipefitter until October 27, 1937, when he was laid off. Linn joined the Union on July 6, 1937, attended union meetings, and distributed some application cards. According to Linn, his foreman, Melvin Leecly, the morning after the July 6 union meeting, said that he understood Linn had attended the meeting. Leedy, so Linn testified, stated that the respondent would never recognize the C. I. 0., that the C. I. O. was too radical for the respondent to deal with, and suggested that Linn should consider the matter and be sure of what he was getting into. Leedy testified that he "might have passed a remark to him [Linn] that I heard he was down to 58 Although the complaint alleged and Booth testified, that he was laid off on October 16, it appears that the correct date is October 27, and we so find. OWENS-ILLINOIS GLASS COMPANY 137 the [union] meeting," but denied that he said that the respondent would not recognize the C. I. O. or that the C. I. O. was too radical. The Trial Examiner credited Linn's version ; we find that Leedy made the remarks attributed to him by Linn. About the middle of July, Casseclay, the personnel director, called Linn into his office and told him that the respondent would not recognize the C. I. O. but would shut its plant and move elsewhere. Casseday did not deny having made this statement, and we find in accordance with Linn's testimony. The respondent had need for a "swing" or extra oiler only when the plant was operating on a five or six furnace basis. Leedy told Linn, when he was hired, that if the plant went clown to a four-fur- nace operation the job would be abolished. The plant did go to a four-furnace basis on October 16, 1937, for the first time since Linn . was hired. Since_ that time the plant has continued to operate on a four-furnace basis, and only the two regular oilers have been needed. We conclude that the record does not justify finding that the respondent discriminatorily laid off William Linn on October 27, 1937. Potesta was employed in the maintenance department as a lawn tender; during the winter months he worked inside the plant at light manual labor. He was laid off on October 27, 1937, when the labor force in the maintenance department was reduced from 60 to 48 employees. Thereafter the labor force was further reduced to 12 men. William Myers, Potesta's foreman, testified that Potesta was included in the lay-off because he was unable to do the Leavy and hazardous work that remained to be done in the department, and budgetary requirements made no provision for a lawn tender during the winter months. Potesta was then about 60 years old, and it is clear that he could perform only light duties around the furnaces. Potesta joined the Union on July 6, 1937, attended meetings, and signed up several employees. Shortly after he joined the Union, so Potesta testified, Myers asked him what he thought of the C. I. O. and if he had joined; Casseclay, the personnel director, once asked him if he had attended r union meeting. The respondent recalled Potesta in April 1938 and he worked as a lawn tender until June, when operations were reduced to a three- furnace basis. He. was offered work in May 1939, when business increased, but he refused to return. We find that the respondent did not discriminate against Sam Potesta by laying him off on October 27, 1937. William Booth entered the employ of the respondent as an elec- trician's helper on April 14, 1936. He was laid off in June of the 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same year, but was rehired July 7, 1936. On July 16, 1937, he was promoted to the job of meter repair man, which position he held until he was laid off on October 27, 1937. Booth joined the Union on July 19, 1937, and served as a member of the organizing committee. A_few days before he was laid off Booth had a conversation with Reiser, the head of the department. Reiser asked if Booth was not "kind of down on" the company. Booth replied that lie was not, that he liked to work for the respondent, and then asked if Reiser was referring to his having joined the Union. Reiser "didn't answer me straight out," but countered by asking if Booth thought he had done the right thing by joining. Booth said he felt that he had, and Reiser then asked if he had thought very much about the matter and had read any literature about the different unions, and expressed the opinion that Booth had made a mistake by joining the C. I. O. At the end of the discussion Booth remarked, "I suppose this will proba- bly cost me my job before it is over with, my joining up with the C. I. 0." Reiser answered, "I do riot know whether it will or not." Reiser did not testify. Clarence Dicken, Booth's foreman, told him, on the last -day he worked, that he was being laid off pursuant to Reiser's orders, that he (Dicken) did not know the reason "unless they were trying to cut the budget," and that there was "plenty of work" for Booth. Foreman Dicken testified that when furnace #2 shut down on October 16, Reiser instructed him to reduce his force by two men in order lo come within the budgetary requirements for a four-furnace operation. Accordingly, Dicken selected Booth and another em- ployee, Edgar Rymer, on the ground that both of them were extra men in the electrical division. Dicken and one Helmick, an old and experienced employee, took over the meter work theretofore done by Booth. Rymer, who was not a member of the Union, was rehired November 17, 1937, and worked until June 1938. Dicken explained that Rymer was better fitted than Booth for the job of overhauling motors, which work Rymer did during this period. Although Reiser's statements to Booth raise a suspicion that he was laid off because of his union membership and activity, upon all the evidence we are not satisfied that the respondent discriminated against him. In view of the curtailment in operations in October, it seems clear that the respondent was justified in laying off some employees in the electrical division of the maintenance department. Under the circumstances, Booth and Rymer were the logical selections for lay- off since they were the most recent additions to the electrical division and were less experienced than the regular electricians. Moreover, the testimony of Foreman Dicken is clear that he selected Booth, and that all Reiser did in connection with the lay-off was to order that the force be reduced and to approve Dicken's action. OWENS-ILLINOIS GLASS COMPANY 139 We find that the evidence does not 'establish that the respondent discriminatorily laid off William Booth on October 27, 1937. .7. Francis M. Daugherty Francis M. Daugherty worked at various jobs during his periods of employment by the respondent, beginning in 1918 or 1919. His last period of continuous employment began in April 1933, as a ware handler in the shipping and storing department. In March 1935 he was given a double classification of ware handler and extra tractor driver, and drove a tractor part of the time, for which he received about 4 cents more per' hour. Daugherty joined the Union on July 6, 1937, and took a leading part in union activities. He was elected treasurer of Local No. 55 on July 19, 1937, and in December 1938 became its president. As we have found above, Buj chett, superintendent of the department, spoke to Daugherty about the Union- shortly after he joined and at the departmental meeting on July 13 referred to Daugherty as the only man in the group who knew why he had joined the Union. In August Foreman Garlow, then acting superintendent, told Daugh- erty that there were "hundreds of ways" of getting rid of a man without it appearing that the reason was union membership and activity, and at a shift meeting Garlow told the employees that since Daugherty was so strongly in favor of a union he, Garlow, would arrange to transfer him to a department where there was a union. It is clear that Daugherty was outspoken in behalf of the Union and that the respondent's supervisory officials were well aware of his activity. The amended complaint alleged that Daugherty was discrimina- torily demoted on October 25, 1937, and thereafter refused rein- statement to his former position. The Trial Examiner found that the evidence failed to sustain this allegation; the Union has ex- cepted to the finding. As stated above, Daugherty was made an extra tractor driver in 1935. At that time there were four regular tractor drivers in the storing division, Homer Haney, Howard Jarvis, William Saurborn, and J. L. Wilson. On April 1, 1936, Daugherty, Thurman Phillips, and Parker Payne were classified as full-time tractor drivers, and on May 15 Frank Garlow was given the same classification. There were then eight tractor drivers in all, and all of them had the same classification and received the same pay. In October 1937 the plant went down to a four-furnace operation and, as we have found above, nearly 300 employees were laid off during that month. There then remained work for only one full-time tractor driver and one part- time driver on each shift. As a result, Daugherty, Garlow, Payne, 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Phillips were given a double classification on October 26 of tractor driver and ware handler. Thereafter, these four employees worked as tractor drivers and were paid as such only when the four regular drivers, Haney, Jarvis, Saurborn, and Wilson, were absent or when business warranted. Daugherty received pay for more hours as a tractor driver than Payne or Phillips and would , have exceeded the hours put in by Garlow but for the fact that Saurborn, on whose shift Garlo-v worked, was off due to an injury for 2 months. Daugherty claims that he was entitled to remain as a regular full- time driver and that he should not have been reclassified on Octo- ber 26. The basis of Daugherty's claim is that when there were two tractor drivers on each shift one was "in charge" and that in October 1937 he was "in charge" of the shift on which lie and Jarvis worked. Daugherty testified he first worked with Haney but that Burchett then put him "in charge" of the shift with Jarvis because Jarvis "was always low on his bonus, and he could not get along with the men." For about 2 months Daugherty worked with Jarvis, giving orders to the men unloading the tractor trailers as well as Jarvis. Daugherty then worked for about 2 months as night foreman, with- out increase in pay, while the regular foreman was on his vacation. Thereafter he returned to driving tractor with Haney, but was later put "in charge" of the Jarvis shift again and remained in that capacity until October 26. The respondent contends that Daugherty was not placed "in charge" of the Jarvis shift. The service records show that Daugherty and -Tarvis had the same job classification and were paid the same rate per hour. Superintendent Burchett testified that when there were two tractor drivers on a shift they had equal authority. He ex- plained that Daugherty had been put with Jarvis in, an effort to increase the bomis on that shift because he felt that Daugherty would work better with Jarvis than Phillips, who "was sort of a timid guy." While it seems likely that the four men who had been regular tractor drivers prior to the spring of 1936 were regarded as having more authority than the four who were made tractor drivers at that time, the evidence does not establish that either of the two drivers had greater authority or responsibility. Had such been the situation, it would seem that there would have been some difference in job classification and pay. The assignment of Daugherty to work with Jarvis was no more than an effort to increase the efficiency of the shift as a whole and, since their authority was the same, did not constitute a promotion" of Daugherty over Jarvis. When Foreman Swick notified Daugherty on October 25 that he was being given the double classification and that Jarvis would con- OWENS-ILLINOIS GLASS COMPANY 141 tinue as full-time tractor driver, Swick gave as the reason that Jarvis' longer service entitled him to the job. Jarvis had worked for the respondent longer than Daugherty and had become a tractor driver before Daugherty. Daugherty contends, however, that if seniority was the criterion used to justify his reclassification, then he should have been given a job driving tractor in the decorating department since he.had longer service than the four who were doing that work. The evidence is clear, however, that when the four men driving tractors in the decorating department were given those jobs the under- standing was that the same men would be kept since their duties in that department were considerably different than in the shipping and stor- ing department. Upon all the evidence, we agree with the Trial Examiner and find that the reclassification of Daugherty on October 26, 1937, was not a demotion and was not discriminatory. The amended complaint further alleged that the respondent laid off Daugherty on June 6, 1938, for a period of about 7 days, because of his union membership and activity. The Trial Examiner found that the evidence failed to establish discrimination. The Union did not except to this finding. We have reviewed the evidence' and find that the respondent did not discriminate against Daugherty by laying him off on June 6, 1938. The amended complaint also alleged that the respondent laid off Daugherty on or about September 15, 1938,59 and thereafter refused to reemploy him, because of his union membership and activity. In Sep- tember 1938 the number of employees in the shipping and storing de- partment decreased from 60 to 24. The only tractor drivers not laid off at that time were Haney, Jarvis, and Wilson, who had been tractor drivers before Daugherty, and Frank Garlow, who had worked for the respondent about 9 years longer than Daugherty. Of the employees laid off, 11 had worked for the respondent longer than Daugherty, and none was retained who had shorter service than he. In November 1938 six employees who had been laid off at the same time as Daugherty were rehired ; all of them had longer service than he. Fifteen more were rehired in March 1939, and of these only three had more service than Daugherty; in April 1939 nine of the laid-off employees were rehired, and all but one had shorter service than Daugherty. Jay Garlow, in charge of the shipping and storing department in 1938, testified that he consulted with Plant Manager Beishline as to whether Daugherty should be included in the lay-off and that Beishline "agreed with me that he would be in the furlough." Beishline testi- fied that he considered Daugherty's case "throughout the summer and until he was laid off in 1938," and, after discussing the matter with the 61 The evidence shows that the correct date is September 21 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personnel director and Garlow, decided that Daugherty was properly included in the group to be laid off in September 1938. According to Beishline, Daugherty "had become so embittered and so antagonistic toward this company and all its representatives" that he was no longer a satisfactory employee. In support of this conclusion, Beishline stated that on one occasion Daugherty had told Foreman Swick that he, Swick, was "dirty" and that "the whole God-damned company was dirty." Moreover, Daugherty consistently refused to attend the weekly shift meetings. Beishline testified that he now considers Daugherty's employment terminated. The occasion when Daugherty allegedly made the statement that Swick and the respondent were "dirty" was diring the first hearing in this cause. The circumstances, according to^the testimony of Daugh- erty, were as follows : Daugherty had received a subpoena to testify at the hearing and asked Swick if he could lay off for that purpose. Swick replied, "I don't know whether I can let you off or not," where- upon Daugherty produced the subpena and said, "I will have to be off, and I am going to be off." Swick then.stated that Daugherty was ``getting into something." Daugherty said he thought not, that he had been "discriminated on" and proposed "to see it through." 60 Daugh- erty denied that he told Swick that he and the company were "dirty." The shift meetings which Daugherty refused to attend, related to departmental operations; Beishline stated that the matters discussed at these meetings consisted "of the previous week's safety inspection, good housekeeping inspection, the previous week's complete report, the previous week's efficiency report, and the other items particularly im- portant to the operation at that time." Attendance at the meetings, which started before work time and for which employees were not paid, was voluntary. Daugherty, so Beishline testified, "took a sort of sneering attitude" toward the meetings and if they extended into work time Daugherty "stubbornly sat down and just wouldn't go in, because he wanted to show his disrespect to the foreman and everyone in- volved." Daugherty "was the only man in the entire department who consistently stayed away from" the meetings. We think that Daugherty was discharged, not laid off, in September 1938. Beishline testified that after investigating Daugherty's case - before the "lay off," "it was my opinion, and still is, [that] he couldn't work in our factory"; and that he did not investigate Daugherty's case or give any further thought to it after September 1938. Beishline further testified that, "unless Mr. Daugherty would be an entirely different employee than he was when he left the factory . . . he should never be rehired." Had the termination in September 1938 81 At the first hearing the only charge with respect to Daugherty was the alleged_dis- ,criminatory demotion on October 25, 1937 OWENS-ILLINOIS GLASS COMPANY 143 been only a furlough, it would seem that Daugherty would have been rehired in the spring of 1939 or that the respondent would have given some reason for not rehiring him.61- We find that the respondent dis- charged Daugherty on September 21, 1938. The question remains whether the discharge was discriminatory. The reasons assigned by the respondent for terminating Daugherty's employment, we are convinced, are not the true reasons. Daugherty's alleged characterization of Swick and the respondent as "dirty," if made, was no more than an inelegant statement of a'belief that the respondent and its supervisors had engaged in discriminatory conduct. Moreover, the circumstances surrounding the incident plainly show that Swick was not above badgering Daugherty about,\pressing his -harge of discrimination; he first met Daugherty's request for time off with the statement "I don't know whether I can let you off or not" and then when Daugherty produced the subpoena Swick indicated his dis- approval by saying Daugherty was "getting into something." Daugherty's failure to attend shift meetings and his "sneering atti- tude" toward them, the respondent contends, are indicative of an un- cooperative and' spiteful attitude toward the departmental manage- ment. Daugherty did not violate any rules by absenting himself from the meetings, since attendance was voluntary. Nor, does it ap= pear that his work suffered by reason of not participating in the meet- ings. Doubtless if the matters discussed in the meetings had been of particular significance to the functioning of the department, the re- spondent would have made attendance compulsory. While we do not condone Daugherty's conduct, it does not appear that Beishline or any of the supervisors in the department undertook to persuade Daugherty that he should conduct himself otherwise. On the con- trary, Beishline did not talk to Daugherty when he made his investiga- tion; he acted wholly upon his limited observation of Daugherty and the reports given him. Had the respondent been genuinely interested in correcting a situation disruptive of discipline and morale in the department, it would seem obvious that some effort would have been made to get Daugherty's side of, the story before taking any action. But instead of adopting such a course of conduct, Beishline decided to terminate Daugherty's employment when the general lay-off occurred by including him therein with the intention of not rehiring him there- after, and thereby eliminate an employee who for more than a' year had persisted in espousing the union cause despite the expressed dis- approval of his superiors. We find that the respondent discharged Francis M. Daugherty on September 21, 1938, and thereafter refused to employ him, because e' Of those laid off with Daugherty only two had not been rehired by April 1939. Spe- cific reasons for not rehiring them were entered on their service records under date of April 19, 1939 No such entry appears on Daugherty's record, 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of his union membership and activity, and that the respondent thereby discriminated with respect to his hire and tenure of em- ployment to discourage membership in a labor organization; and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. At the time of his discharge, Daugherty had the following four job classifications: tractor driver and gang leader, at 66 cents per hour; ware handler and bulk loader, each at 61 cents; and loader, at 58 cents. Since his discharge he has earned $6.50 for 1 day's work for the Baltimore & Ohio Railroad. 8. James Shaffer, Harry E. Stuttler, and Porter Taylor James Shaffer worked in the shipping and storing department as a ware handler during the spring and summer of 1933 and 1934. He was rehired in February or March 1935 and worked in the mainte- nance department until the spring of 1937, when he was assigned to driving a tractor in the decorating department. Shaffer and the other three tractor drivers in the decorating department remained tinder the supervision of Burchett, superintendent of the shipping and storing department. Shaffer joined the Union on July 7, 1937, talked about the Union in the decorating department, and solicited a number of member- ships. He testified that about July 10, as Burchett was talking to the shift, Burchett called him over and warned him "if you don't keep your damn mouth shut-in the decorating department about the C. I. O. you are not going to have no job." Burchett denied having made this statement. In view of Burchett's expressed hostility to the Union, we find, as did the Trial Examiner, that Burchett made the foregoing statement to Shaffer. When Shaffer came to work on the evening of July 13 he was told by Wilson, a tractor driver and gang leader in the shipping and storing department, that pursuant to orders left by Burchett, he was not to drive tractor that night but should do other work and to report to Burchett the next morning. On the morning of July 14 Shaffer reported to Burchett, who discharged him on the ground that he had been driving recklessly in the decorating department. There is considerable evidence relating to•Shaffer's reckless driv- ing in the decorating department, which was in a very crowded con- dition. E. W. Ball, who no longer works for the respondent but was a shift foreman in the decorating department at the time of Shaffer's discharge, testified that Shaffer drove too fast, knocked ware from serving trays, and depended too much on his whistle and OWENS-ILLINOIS GLASS COMPANY 145 brakes in view of the conditions in the department. Ball had re- ceived a number of complaints from employees regarding Shaffer's recklessness. Several employees confirmed Ball's testimony and agreed that Shaffer was not as careful as the other drivers. Swick, a foreman in the storing, division who had supervision over Shaffer, and Superintendent Burchett testified that they had warned Shaf- fer on several occasions that he should be more careful. When the four men were assigned as drivers, they were informed by Burchett- that they would not be classified as such, with the corresponding in- crease in pay, until they had "made good." Lester Poling and Howard Garlow were given the classification and raise on June 1, 1937, and Camden Shaffer was not so classified until August 16. According to Burchett, neither Camden Shaffer nor James Shaffer had satisfied him as to their qualifications up-to the time Shaffer was discharged. Although Shaffer testified that he had never been warned about driving recklessly, the Trial Examiner did not credit his testimony in this respect. We find that Shaffer had been warned and that his driving in the decorating department was less satisfac- tory than that of the other tractor drivers. It is the respondent's contention that the immediate cause for Shaffer's discharge was his act of driving rapidly near three girls who were facing a bulletin board, blowing his whistle loudly when he stopped within a few feet of them, and scaring them. Ball, the shift foreman in the decorating department, saw this incident. He wrote a note to Burchett, the "sum and substance" of which was that Shaffer was unsatisfactory and that he wanted Burchett to furnish another tractor driver.62 Whether the incident of Shaffer's frightening the girls was mentioned in this note is not clear from Ball's testimony. Burchett testified that when he received the note he investigated the matter and, since it was then too late to stop Shaffer from coming to work, he left orders that Shaffer was not to work in the decorating department that night. The following morning he discharged Shaf- fer, and told him "that it was for driving recklessly and trying to scare these girls." There is a conflict in the evidence as to whether Ball mentioned Shaffer's union activity in the note to Burchett. Daugherty, who was then working as a tractor driver and gang leader under Burchett, testified that about July 17 Burchett showed him the note from Ball relating to Shaffer.: According to Daugherty, the note stated that Shaffer had been engaged in "',.in awful lot of talking" in the deco- rating department, but that Ball had not seen Shaffer "pull out any cards to get signed up." Burchett expressed the fear to Daugherty °2 Ball wrote the note, rather than complain orally, because Burchett was not at the plant during the night .hours Ball and Shaffer were then working 146 DECISIONS OF NATIONAL LABOR RELATION'S BOARD that "the Union is going to bhime ine for dischargilig" Shaffer. 63 and stated that if he had not done so, Ball would have.reported to Denels- beck, the plant manager, that Shaffer, one of Burchett's men, was organizing in the decorating department. Burchett asked Daugh- erty's opinion; Daugherty said that he "didn't think the law would protect" Shaffer if Shaffer had been talking and signing employees on company time. Ball, the author of the note, was a hesitant witness on the question of whether he mentioned Shaffer's union activity in the note. , On direct examination he testified that he did not say anything about Shaffer's union activity, although he "had seen him talk to a person occasionally." On cross-examination Ball stated that he could not recall; upon being pressed further, he testified, "I wouldn't be able to say anything either way on that, . . . I don't remember, and I don't think there was" anything in the note' about Shaffer's activity., On redirect Ball testified that "to the best of my knowledge" he had not mentioned the signing of cards and that "not to my knowledge" had he observed Shaffer solicitin" union membership. Burchett tes- tified that the note contained nothing about the union activity of Shaffer. He was not questioned about the conversation with Daugh- erty relating to Shaffer, which we have set out above. It is singular that Ball, who wrote the note, could recall readily that it referred to Shaffer's reckless driving but could not recall whether it also referred to his union activity. We find that Ball's note to Burchett referred to Shaffer's union activity in the decorating -department. About August 6 Shaffer discussed his discharge with Denelsbeck; the plant manager, and Casseday, the personnel director. Denels- beck promised to investigate the matter, and said that Burchett may have been hasty. Denelsbeck said that some warehouse space was needed and he hoped to be able to use Shaffer in connection with the building operations. Later, in August, Shaffer saw Casse- day, who offered to get hint reinstated if he would attend union meetings, keep Casseday informed, and find' out how many union cards Folio had. Shaffer refused to engage in such activity. At the first hearing Casseday told Shaffer that it would be futile for him to testify because the respondent had many witnesses who would testify that he was reckless, "whether you was or not." Casseday suggested that if Shaffer would not take the stand. "my proposition still holds about your job." Although Casseday testified on several matters, he was not questioned about the foregoing statements; we have found above that he made them. a, Shaffer promptly reported his discharge to Armando Folio, a union official. Folio had a telephone conversation with Denelsbeck about the matter about July 14, after Shaffer had reported his discharge OWENS-ILLINOIS- GLASS COMPANY 147 Although we have found that Shaffer was less satisfactory. than the other tractor drivers in the decorating department, we do not believe that that fact explains his discharge. The fact that a few days before, his discharge Burchett warned bull that he would lose his job if,he (lid not keep his "damn mouth shut in the decorating department about the C. I. 0."; the fact that, immediately after re- ceiving a note from Ball, shift foreman in the decorating depart- ment, about Shaffer's union activity, Burchett discharged Shaffer; Denelsbeck's adhnission that Burchett's action was probably "hasty"; and the efforts of Casseday to induce Shaffer to become an informer, on the Union in return for a job, convince us that the respondent discharged Shaffer because of his union membership and activity. We find that the respondent discharged James Shaffer on July 14, 1937, because of his union membership and activity, and that the respondent thereby discriminated with regard to his hire and tenure of employment to discourage membership in a labor organization ; and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. Shaffer was rehired April 19, 1939, and was working at the time of the hearing, as a ware handler and part-time tractor driver in the shipping and storing department. Between the date of his dis- charge and the date he was rehired, he earned about, $566. The Trial Examiner found that Harry E. Stuttler and Porter L. Taylor had not been discriminatorily discharged by the respondent, as alleged in the amended complaint. The Union has excepted to these findings. Stuttler's last steady employment with the respondent began in April 1932, as a selector and lehr attendant in the packing depart- ment. He joined the Union at the July 6, 1937, meeting. His super- intendent, Brand, had knowledge of his membership and shortly after Stuttler joined, Brand disparaged unions in a talk with Stuttler, as we have found above. The reason assigned for Stuttler's discharge is that his wages were attached by one of his creditors. Stuttler had had a judgment en- tered against him in May 1937. Through the intervention of Casse- day, to whorl Stuttler was sent by Brand, the creditor, who was threatening repeated attachments, agreed to accept payments of $5 per month on the debt. Stuttler made the payments in May and June, but failed to make the paypnent clue the last pay day in July He did not notify the creditor or the respondent of his default. The creditor, on July 29, caused a writ of attachment to issue, which was served on the respondent on August 1. Casseday told Brand of the attachment, and on August 4, 1937, Brand discharged Stuttler. 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While the respondent has no definite rule regarding attachments, and a number of employees whose wages were attached have not been discharged for that reason, it is clear that those cases differed from that of Stuttler. Casseday had gone to considerable trouble to induce the creditor, who had demanded $20 each month, to accept monthly payments of $5. Moreover, the creditor was especially in- sistent, threatening to attach Stuttler's pay every month until the debt was paid. 64 Under these circumstances, we conclude that the respondent did not discharge Harry E. Stuttler on August 4, 1937, because of his union membership and activity. Taylor had been working as night shipping clerk in the central mold shop for several months prior to his discharge on September 21, 1937. He joined the Union in July 1937 and testified that he solicited employees in the mold shop, members of the American Flint Glass Workers Union, to join the Union. Practically all of the employees named by him testified that he had not solicited them; the Trial Examiner credited their testimony. The respondent contends that Taylor was discharged for making three serious mistakes in shipping equipment, the last mistake hav- ing been made on September 20, the last day Taylor worked. The first mistake in August, consisted of his mixing mold equipment destined for the Huntington and Terre Haute plants, which caused considerable delay and confusion. Later in August, he shipped some equipment to Bridgeton, New Jersey, contrary to a hold order. When the equipment was ordered shipped to the Charleston plant, it was discovered to be missing. Inquiries were sent to all the fac- tories and it was not until a few days before Taylor's discharge, after a delay of nearly a month, that the order was found. The respon- sibility of Taylor for these mistakes was conclusively established by shipping documents and other evidence, which he did not undertake to refute. On September 20 Taylor had been instructed to com- plete packing an order destined for Gas City, Indiana. He failed to do so, and sent only that part of the order which had been packed by the day shipping clerk. Taylor did not attempt to justify or explain his mistake in any way when McKelvey, the head schedule clerk, called him to the shop on September 21 after discovering the error. It is clear, and we find, that Porter L. Taylor was discharged on September 21, 1937, for inefficiency and not because of his union membership or activity. 64 Wages attached may be released if the debtor has less than a specified amount of pi op- erty, by a process known as "scheduling " This procedure applies only to the attachment filed , and must be repeated to prevent any subsequent attachments OWENS-ILLINOIS GLASS COMPANY 149 IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities ' of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since we have found that the respondent has engaged in certain unfair labor practices, we shall order that it cease and desist there- from. In order to effectuate the policies of the Act, and as a means of removing and avoiding the consequences of the respondent's un- fair labor practices, it is essential that the respondent be directed to take certain affirmative action, more particularly described below. We have found that the respondent discriminated with regard to the hire and tenure of employment of Lena Anselene, Edith Gal- lion, Flossie Stemple, June Tennant, Nick Balseto, Lester Henderson, Aitthony Laratta, Lester Glenn Lewis, Joseph Schnell, Francis M. Daugherty, and James Shaffer. We shall order the respondent to offer to Anselene, Gallion, Balseto, and Daugherty immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges, and to make them whole for any loss of pay they have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to the amount which he or she normally would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, less his or her net earnings e5, during said period. Having found that Stem- ple, Tennant, Henderson, Laratta, Lewis, Schnell, and Shaffer were later reemployed by the respondent, we shall not order that they be reinstated; G6 we shall, however, order that they be made whole for any loss of pay suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to the amount 85 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 against him : and the consequent necessity of his seeking employment else- where See Matter of Crossett Lumber Company and United Brotherhood 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 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. "As we have found above, the discharges of Stemple and Lewis, after they were reem- ployed, are not in issue. 283036-42-vol 25-11 150 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD which he or she would have earned as wages from the date of the discrimination to the date of the reinstatement, less his or her net earnings 67 during said period. We have also found that the respondent has not discriminated with regard to the hire and tenure of employment of Eileen Brown, Roy Davis, Roger Anselene, Joseph Church, Frank Church, Floyd Kerns, Rufus Neel, Louis Ribel, Pauline Conrad, Lucretia Gwynn, Anna Sheets, Nellie Van Gilder, Edward Martin, Wilbur Deskins, William Booth, Sam Potesta, William Linn, Harry E. Stuttler, and Porter L. Taylor. We shall order that the amended complaint be 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 to the said individuals. We have further found that the respondent has not discriminated with regard to the hire and tenure of employment of Anthony Laratta by laying him off on November 20, 1937, and of Francis M. Daugherty by reclassifying him on October 26, 1937, and by laying him off on June 6, 1938. The amended complaint will, therefore, be dismissed in so far as it alleges that the foregoing acts of the respondent constitute unfair labor practices, within the meaning of Section 8 (3) of the Act. 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. Federation of Flat Glass Workers of America, Local No. 55 there- .of, and Congress of Industrial Organizations are labor organiza- tions, within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Lena Anselene, Edith Gallion, Flossie Stemple, June Ten- nant, Nick Balseto, Lester Henderson, Anthony Laratta, Lester Glenn Lewis, Joseph Schnell, Francis M. Daugherty, and James Shaffer, thereby discouraging membership in Federation of Flat Glass Workers of America, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ' 17 See footnote 65, supra. OWENS-ILLINOIS GLASS COMPANY 151 5. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act, with regard to Eileen Brown, Roy Davis, Roger Anselene, Joseph Church, Frank Church, Floyd Kerns, Rufus Neel, Louis Ribel, Pauline Conrad, Lucretia Gwynn, Anna Sheets, Nellie Van Gilder, Edward Martin, Wilbur Deskins, William Booth, Sam Potesta, William Linn, Harry E. Stuttler, and Porter L. Taylor; Anthony Laratta, by laying him off on November 20, 1937; and Francis'M. Daugherty, by reclassifying him on October 26, 1937, and laying him off on June 6, 1938. 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 respon- dent, Owens-Illinois Glass Company, its officers, agents, successors,, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Federation of Flat Glass Workers of America, or any other labor organization of its employees, by dis- criminating in regard to their hire and tenure of employment or any terms or conditions of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, 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) Offer to Len Anselene, Edith Gallion, Nick Balseto, and Francis M. Daugherty immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority and other rights and privileges ; (b) Make whole Lena Anselene, Edith Gallion, Flossie Stemple, June Tennant, Nick Balseto, Lester Henderson, Anthony Laratta, Lester Glenn Lewis, Joseph Schnell, Francis M. Daugherty, and James Shaffer for any loss of pay they may have suffered by reason of the respondent's discrimination in regard to their hire and tenure of em- ployment, by payment to Lena Anselene, Edith Gallion, Nick Balseto, and Francis M. Daugherty of a sum of money equal to that which each would normally have earned as wages from the respective date of dis- crimination to the date of the offer of reinstatement; by payment to Flossie Stemple, June Tennant, Lester Henderson, Lester Glenn Lewis, Joseph Schnell, and James Shaffer of a sum of money equal to that 152 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD which each would normally have earned as wages from the respective date of discrimination to the date of reinstatement; by payment to Anthony Laratta of a sum of money equal to that which he would normally have earned as wages as a bricklayer from September 17 to 20,1937; less their respective net earnings 68 during said period; deduct- however from the amount otherwise due to each of the said em- ployees, monies received by said employee 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 govern- ment or governments which supplied the funds for said work-relief projects; (c) Post immediately in conspicuous places at its Fairmont, West Virginia, plant and maintain for a period of at least sixty (60) con- secutive 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 employees are free to become or remain members of Federation of Flat Glass Workers of America and the respondent will not discrimi- nate against any employee because of membership or activity in that organization ; (d) Notify the Regional Director for the Sixth Region in writing within ten (10) days from the date of this Order what steps it has taken to comply herewith. AND IT IS FURTHER ORDERED that the amended complaint, in so far as it alleges that the respondent discriminated in regard to the hire and tenure of employment of Eileen Brown, Roy Davis, Roger Anselene, Joseph Church, Frank Church, Floyd Kerns, Rufus Neel, Louis Ribel, Pauline Conrad, Lucretia Gwynn, Anna Sheets, Nellie Van Gilder, Edward Martin, Wilbur Deskins, William Booth, Sam Potesta, Wil- liam Linn, Harry E. Stuttler, and Porter L. Taylor; Anthony Laratta, by laying him off on November 20, 1937; and Francis M. Daugherty, by reclassifying him on October 26, 1937, and laying him off on June 6, 1938, be, and the same hereby is, dismissed. MR. EDWIN S. SMITH took no part in the consideration of the above Decision and Order. ° See footnote 65, supra.